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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CASE NO. 4:02CR44-SPM/AK

TAVIUS J. PATTERSON,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 49, Motion to Vacate under 28 U.S.C. § 2255, by

Tavius J. Patterson. Defendant pled guilty to possession with intent to distribute more than 50

grams of cocaine base. Docs. 37 & 38. He was sentenced to 240 months imprisonment. Doc.

42. Judgment was entered on April 25, 2003. He did not appeal. The instant motion was filed

on June 7, 2005. Defendant’s claims are that the Court lacked subject matter jurisdiction and

that the indictment failed to allege an offense against the United States. Doc. 49 at 5-6.

DISCUSSION

Section 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or correct the

sentence.

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28 U.S.C. § 2255. “A 1-year period of limitation shall apply to a motion under this section.” Id. 

The one-year limitations period

shall run 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 movant 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.

Id. The pertinent inquiry here involves subsections (1) and (4) only, as none of the other

subsections apply.

Because Defendant did not appeal his sentence, his conviction became final ten days after

entry of judgment, or May 7, 2003. See Fed. R. App. P. 4(b)(1)(A)(i). As noted supra,

Defendant filed the instant motion on June 7, 2005. Clearly, he did not file the motion within

one-year of the date his conviction became final, and therefore, the motion to vacate is untimely

under subsection (1).

This does not, however, end the inquiry as Defendant has argued generally that he “was

not aware that [he] was convicted on an unconstitutional indictment.” Doc. 49 at 10. He has

not, however, explained why he did not learn of this alleged unconstitutional indictment until

over two years after the statute of limitations ran and why he could not have learned of this

alleged defect with the exercise of due diligent. Thus, Defendant is not entitled to relief under

subsection (2).

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Nevertheless, “in the proper case, § 2255’s period of limitations may be equitably tolled.” 

Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). “Equitable tolling is appropriate

when a movant untimely files because of extraordinary circumstances that are both beyond his

control and unavoidable even with diligence.” Id.

Petitioner’s general arguments that was unaware that he had been convicted based on an

unconstitutional indictment, Doc. 49 at 10, and that “it’s never too late to raise a Jurisdictional

Claim,” Doc. 49, Memo. at 1, are of no avail. These jurisdictional claims are precisely the types

of claims that must be presented on direct appeal or in a timely § 2255 motion, see Gearing v.

United States, 432 F.2d 1038, 1040 (5th Cir. 1970) (generally, proper method of attacking

sufficiency of indictment is by direct appeal; one ground on which § 2255 motion may be

predicated is that court which imposed sentence was without jurisdiction to do so), and thus,

Petitioner could have attacked the jurisdiction of the Court in the time provided. He certainly

has not presented the extraordinary, unavoidable circumstances necessary to equitably toll the

statute of limitations. 

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s motion

to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, Doc. 49, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 27th day of June, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

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