Page 1 of 5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:99cr29/LAC/CJK

3:13cv636/LAC/CJK

RONALD GUERRIER

_______________________________/

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, in which he references a

“forthcoming memorandum” (doc. 281). Rule 4(b) of the Rules Governing Section

2255 Proceedings provides in part that “[i]f it plainly appears from the face of the

motion and any attached exhibits and the record of prior proceedingsthat 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, it is the opinion of the

undersigned that the motion is untimely and that it should be summarily dismissed.

BACKGROUND and ANALYSIS

Defendant pleaded guilty to conspiracy to possess with intent to distribute

controlled substances, and the court sentenced him to a term of 328 months

imprisonment on June 25, 2002 (docs. 142, 151). He did not appeal. In 2005,

Defendant filed a petition/motion to re-open, review and revise the judgement, which
Page 2 of 5

was denied (docs. 182, 183). In 2008, he filed a motion to reduce his sentence

pursuant to 18 U.S.C. § 3582 which was also denied (docs. 206, 207, 210, 213). 

Finally, in 2011, Defendant filed another motion pursuant to 18 U.S.C. § 3582(c) for

a sentence reduction under Amendment 750 to the Sentencing Guidelines, which the

court also denied (docs. 265, 268). The Eleventh Circuit dismissed Defendant’s

appeals of the denials of each of these motions for failure to prosecute (docs. 200,

247, 280). Defendant filed the instant motion to vacate pursuant to the prison

mailbox rule on December 16, 2013 (doc. 281 at 5). 1

Defendant raises three grounds for relief in his motion. Citing Alleyne v.

United States, 133 S.Ct. 2151 (2013), he asserts a violation of his sixth amendment

rights, and Defendant also raises an equal protection claim and asserts that his plea

was not knowing, voluntary and intelligent.

2

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;

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

1

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”); Williams v. McNeil, 557

F.3d 1287, 1290 n.2 (11th Cir. 2009) (under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed

on the date it is delivered to prison authorities for mailing); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.

2001) (absent evidence to the contrary, court assumes that a pro se petition is delivered to prison authorities for mailing

the date it was signed).

Defendant has failed to properly complete the court form with respect to the latter two claims. He offers no

2

factual support for the second and third claims, instead referring to his “forthcoming memorandum,” which, to date, the

court has not received. Due to the court’s finding that his motion is untimely, he will not be required to amend his motion

to properly complete the court form.

Case Nos.: 3:99cr29/LAC/CJK; 3:13cv636/LAC/CJK
Page 3 of 5

(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’s judgment of conviction is dated June 28, 2002 (doc.

151). Because he did not appeal, his conviction became final when the time for doing

so expired. The instant motion was filed over eleven years later. Defendant appears

to have filed his motion in response to the Supreme Court’s recent decision in Alleyne

v. United States, 133 S.Ct. 2151 (2013). However, even if Alleyne were applicable

to the facts of Defendant’s case, this case is not retroactively applicable on collateral

review. See, e.g., Starks v. Warden, FCC Coleman-USP I, No. 12-15956, 2013 WL

6670797, at *3 (11th Cir. Dec. 19, 2013); United States v. Redd, 735 F.3d 88, 91 (2d

Cir. 2013); In re Kemper, 735 F.3d 211 (5th Cir. 2013); Simpson v. United States, 721

F.3d 875 (7th Cir. 2013); United States v. Stewart, Case No. 13-6775, 2013 WL

5397401 (4th Cir. Sept. 27, 2013); In re Payne, 733 F.3d 1027, 1029–1030 (10th Cir.

2013). Thus, it affords Defendant no relief and does not open the door to Defendant’s

untimely attempt to seek collateral review.

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.

Case Nos.: 3:99cr29/LAC/CJK; 3:13cv636/LAC/CJK
Page 4 of 5

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 apparent attempt to bootstrap claims on what he may

have believed was a timely claim based on Alleyne fails and his motion should be

denied as untimely.

CERTIFICATE OF APPEALABILITY

Section 2255 Rule 11(a) provides that “[t]he district court must issue or 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. § 2255 11(b).

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

Case Nos.: 3:99cr29/LAC/CJK; 3:13cv636/LAC/CJK
Page 5 of 5

(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.

Based on the foregoing, it is respectfully RECOMMENDED:

1. The motion to vacate, set aside, or correct sentence (doc. 281) be

summarily DENIED and DISMISSED as untimely.

2. A certificate of appealability be DENIED.

At Pensacola, Florida, this 7th day of January 2014.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen 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, and does not control. 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.: 3:99cr29/LAC/CJK; 3:13cv636/LAC/CJK