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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 5:00-cr-00029-SPM-AK

LOTTIE SONJA CALHOUN TIBBITS,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

By prior order Defendant was allowed to withdraw the motion to vacate filed December

22, 2003. Doc. 246. Presently before the Court is another motion to vacate with supporting

memorandum, Docs. 253 & 254, which the Eleventh Circuit has deemed not to be second or

successive. See Doc. 253, Attach. 2.

One of the first things that the Court must do in assessing the viability of a §2255 motion

is to determine whether the motion is timely filed, since the motion had to be filed within one

year of the date Defendant’s conviction became final. Thus, the Court directed Defendant to

submit evidence of the date that the motion to vacate, Doc. 253, was delivered to prison

authorities for mailing. In response, Defendant advised the Court as follows: “I...did put my

2255 in the mail at Coleman Camp but the mail lady was new and misplace[d] my 2255 for

almost a month before she called me in to tell me I need another stamp so it was April 20 before

she did put it in the mail for me.” Doc. 260.

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Case No: 5:00-cr-00029-SPM-AK

Defendant’s conviction became final on March 3, 2003, ninety days after her petition for

rehearing was denied by the Eleventh Circuit. The time for filing a motion to vacate ran from

that date until December 2, 2003, when Defendant placed her motion in the hands of prison

officials for mailing. Doc. 172. Thus, a total of 274 days expired before the first § 2255 motion

was filed.

The time was tolled from December 3, 2003, until November 9, 2006, when Defendant

voluntarily withdrew the first motion to vacate. At the hearing on Defendant’s motion to

withdraw, the Court explicitly advised her that withdrawing her motion might prohibit her

entirely from filing another motion. Doc. 246. At that time, the time began running again on the

one-year statute of limitations and ran unabated until February 2, 2007, when Defendant filed a

motion for leave to file a second or successive motion with the Eleventh Circuit. In re Lottie

Sonja Calhoun Tibbits, No. 07-10463 (11th Cir.). By that time, eighty-five additional days had

elapsed, for a total of 359 days. On February 20, 2007, the Eleventh Circuit advised Defendant

that her proposed motion to vacate was not second or successive, and thus, she did not need

permission to seek relief in this Court, and the time for filing the § 2255 motion in this Court

began running again. By that time, Defendant had only 6 days left to file the instant motion.

While the Court does not believe that Defendant garners any benefit from the time that

was lost due to her own failure to place the proper amount of postage on the envelope mailing

Documents 253 and 254 to this Court, assuming that the “misplace[ment]” of the § 2255 motion

by the “mail lady” for “almost a month” entitles her to tolling, either statutorily or equitably, the

instant motion is untimely filed. To have been timely, Defendant was required to place the

motion to vacate in the hands of prison authorities for mailing no later than February 26, 2007. 

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Case No: 5:00-cr-00029-SPM-AK

Thus, even accepting March 20, 2007, as the date Defendant gave the envelope to the “mail

lady,” the motion to vacate was almost a month out of time by that date.

Accordingly, it is RECOMMENDED that the motion to vacate, Document 253, be

DENIED AS UNTIMELY.

IN CHAMBERS in Gainesville, Florida, this 20th day of June, 2007.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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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