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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:03cr61/MW/GRJ

4:14cv322/MW/GRJ

MELVIN T. MARTIN

_______________________________________/

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255. (Docs. 63.) Rule 4(b) of the Rules

Governing Section 2255 Proceedings for the United States District Courts provides in

part that “[i]f it plainly appears from the motion, any attached exhibits, and the record of

prior proceedings that the moving party is not entitled to relief, the judge must dismiss

the motion and direct the clerk to notify the moving party.” After a review of the record,

the Court determines that it is without jurisdiction to entertain Defendant’s motion and,

therefore, the motion should be summarily dismissed.

BACKGROUND and ANALYSIS

Defendant was sentenced to a term of 207 months imprisonment after a jury

convicted him of possession of a firearm by a convicted felon. (Docs. 40, 47.) 

Judgement was entered on January 3, 2006, but the court later entered an amended

judgment on October 8, 2008 to reflect that Defendant’s federal sentence was to run

concurrently with a sentence imposed after a conviction in state court. (Docs. 49, 52.) 

In 2009, Defendant filed a motion pursuant to 28 U.S.C. § 2255 challenging the

execution of his sentence due to the Bureau of Prisons’ alleged failure to give him credit

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for time served. (see Doc. 59.) The court dismissed this motion for lack of jurisdiction,

noting that the proper remedy was pursuant to 28 U.S.C. § 2241. (docs. 59, 61). 

Defendant filed the instant motion to vacate pursuant to the prison mailbox rule on 1

June 19, 2014 (doc. 63 at 12). Defendant claims that his 1999 state conviction for

burglary of a dwelling no longer qualifies as a predicate offense under the Armed

Career Criminal Act. He also claims that he is “factually innocent” of the state conviction

because he never entered the dwelling or cartilage to commit a crime. 

Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of

motions under this section. The one-year period of time runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United

States is removed, if the petitioner was prevented from making a motion

by such governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented

could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255. Defendant contends that his motion was timely filed pursuant to§

2255(f)(3) because it was filed within one year of the Supreme Court’s decision in

Descamps v. United States, 133 S.Ct. 1924 (2013).

The Supreme Court has not declared its decision in Descamps to be

retroactively applicable on collateral review, nor has the undersigned found any cases

A pro se inmate’s pleading is deemed filed at the time it is placed in the prison mailbox or delivered

1

to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266 (1988) (holding that a pro se inmate’s

notice of appeal was filed as of the time he placed it in the prison mailbox, thus creating the “prison mailbox

rule”).

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applying Descamps retroactively to cases on collateral review, although many cases

have held to the contrary. See, e.g., United States v. Boykin, Case Nos. 4:07cr38-

RH/GRJ, 4:14cv224-RH/GRJ, 2014 WL 2459721 (N.D. Fla., May 31, 2014) (dismissing

§ 2255 filed in reliance on Descamps as untimely); Whitaker v. Chandler, No. 13-

11280, 2014 WL 2940449 (5th Cir. July 1, 2014) (Descamps is not a retroactively

available Supreme Court decision); Groves v. United States, Case No. 12-3253, 2014

WL 2766171, at *4 (7th Cir. June 19, 2014) (“To date, the Supreme Court has not made

Descamps retroactive on collateral review.”); Larvie v. United States, Case No. CIV 14-

3006, 2014 WL 2465588, at *5 (D. S.D. June 2, 2014) (denying motion based on

Descamps and noting that court had found no cases that had found Descamps

retroactively applicable on collateral review); Pulley v. United States, Case Nos.

2:13CV257-PPS, 2:04CR12-PPS, 2014 WL 2206893, at *2 (N.D. Ind. May 27, 2014)

(finding that Descamps broke no new ground and thus did not “revive the one year

limitations period of § 2255”); Baker v. Zych, Case No. 7:13cv512, 2014 WL 1875114,

at *2 (W.D.Va. May 9, 2014) (collecting decisions finding that Descamps is not

retroactive on collateral review); Valencia-Mazariegos v. United States, Case No. A-09-

CR-228-SS, 2014 WL 1767706 at *3 (W.D. Tex. May 1, 2014) (“the Supreme Court has

not declared its decision in Descamps to be retroactively applicable on collateral review,

and this Court has not found any lower court cases applying Descamps retroactively to

cases on collateral review”); Harr v. United States, Case No. 14-cv-1152, 2014 WL

1674085 at *3 (C.D. Ill. 2014) (Descamps did not announce a new rule of law but

merely clarified existing law and thus did not apply retroactively on collateral review);

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United States v. Hastings, Case No. 11-25(1)(RHK/FLN), 2014 WL 1584482 at *7 (D.

Minn. Apr. 21, 2014) (noting the Supreme Court has not held that Descamps is

retroactively applicable on collateral review and the court was unaware of any other

federal court applying Descamps to a case that became final on direct appeal before

Descamps was decided); Hoskins v. Coakley, Case No. 4:13 CV 1632, 2014 WL

245095 at *5 (N.D.Ohio, Jan. 22, 2014) (“there is no suggestion that the Supreme Court

intended Descamps to be applied retroactively to cases which already became final

after appeals”); Randolph v. United States, Case No. CCB–13–1227, 2013 WL

5960881, at *1 (D. Md. Nov.6, 2013) (“The Supreme Court has not, however, indicated

that Descamps applies retroactively to cases on collateral appeal, and this court is not

aware of any circuit court opinion so holding.”); Roscoe v. United States, No.

2:11–CR–37–JHH–RRA, 2013 WL 5636686, at *11 (N.D. Ala. Oct.16, 2013) (noting the

Supreme Court has not made Descamps retroactively applicable on collateral review);

Strickland v. English, No. 5:13–CV–248–RS–EMT, 2013 WL 4502302, at *8 (N.D. Fla.

Aug.22, 2013) (finding Descamps was not retroactive and thus “does not open the §

2241 portal” to review claims under the savings clause); cf. United States v. Isidoro,

Case No. 13 CR 394 WQH, 2013 WL 5353001 (S.D. Cal. Sept. 23, 2013) (Government

conceded that Descamps applied retroactively to a case on direct review); Lowe v.

United States, Case Nos. 14-C-0050, 11-CR-74, 2014 WL 435351, at *2 (E.D. Wisc.

Feb. 4, 2014) (finding Descamps inapplicable “even if” it applied retroactively on

collateral review). If Descamps is not retroactively applicable, Defendant may not

proceed under § 2255(f)(3). 

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Unless Defendant establishes his entitlement to equitable tolling, his motion is

time barred. Jones v. United States, 304 F.3d 1035, 1038 (11th Cir. 2002) (citing Akins

v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000)). Equitable tolling is

appropriate when a § 2255 motion is untimely because of “extraordinary circumstances

that are both beyond [the defendant’s] control and unavoidable even with diligence.” 

Johnson v. United States, 340 F.3d 1219, 1226 (11th Cir. 2003) (citing Drew v. Dep’t of

Corr., 297 F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States, 177 F.3d 1269,

1271 (11th Cir. 1999)). Otherwise stated, “a litigant seeking equitable tolling bears the

burden of establishing two elements: (1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way.” Lawrence v. Florida,

549 U.S. 327, 336 (2007) (citation omitted); Hutchinson v. Florida, 677 F.3d 1097, 1100

(11th Cir. 2012). It only applies in “truly extraordinary circumstances.” Johnson, 340

F.3d at 1226 (citing Jones, 304 F.3d at 1039–40; Drew, 297 F.3d at 1286). The onus is

on the moving defendant to show that he is entitled to this extraordinary relief. 

Johnson, 340 F.3d at 1226, Jones, 304 F.3d at 1040. The court will not relieve a

petitioner who has sat upon his rights. United States v. Cicero, 214 F.3d 199, 203 (D.C.

Cir. 2000) (citing Coleman v. Johnson, 184 F.3d 398, 402-03 (5th Cir. 1999)). There is

nothing in the instant motion to suggest that Defendant intended to, or is entitled to,

invoke the doctrine of equitable tolling. Defendant’s motion should be denied as

untimely.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United

States District Court (“§ 2255 Rules”) provides that “[t]he district court must issue or

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deny a certificate of appealability when it enters a final order adverse to the applicant,”

and if a certificate is issued “the court must state the specific issue or issues that satisfy

the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the denial of

a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000)

(explaining how to satisfy this showing) (citation omitted). Therefore, it is also

recommended that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue.” If there is an objection to this recommendation by either party, that party may

bring this argument to the attention of the district judge in the objections permitted to

this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. Defendant’s motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 63),

should be SUMMARILY DISMISSED, as untimely.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 7 day of July, 2014. th

 

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case Nos.: 4:03cr61/MW/GRJ; 4:14cv322/MW/GRJ

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen (14) days after being served a copy thereof. Any different

deadline that may appear on the electronic docket is for the court’s internal use

only. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case Nos.: 4:03cr61/MW/GRJ; 4:14cv322/MW/GRJ

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