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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

vs. 5:03cr5/MCR

5:08cv266/MCR/MD

STACY L. BUTLER,

Defendant.

REPORT AND RECOMMENDATION

This cause is before the court upon defendant’s motion to vacate, set aside or

correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 78). 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 annexed exhibits and the prior proceedings in the case that the

movant is not entitled to relief in the district court, the judge shall make an order for its

summary dismissal and cause the movant to be notified.” 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 pursuant to a written plea and cooperation agreement to

charges of armed bank robbery and carrying and brandishing a firearm during and in

relation to a crime of violence and was sentenced on July 7, 2004 to a term of 387 months

imprisonment. He did not appeal. 

On September 22, 2005, the court received a motion/application to proceed for

transcript in forma pauperis. (Doc. 70). The court denied the motion without prejudice,

noting that no notice of appeal had been filed and the time to do so had long expired. The

court also stated that if the defendant intended to pursue collateral relief under 28 U.S.C.

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Case No: 5:03cr5/MCR; 5:08cv266/MCR/MD

§ 2255 or § 2241, he needed to file his petition and resubmit his application to proceed in

forma pauperis no later than October 28, 2005. (Doc. 71). Defendant filed nothing further

until November 20, 2006, when he filed a notice/affidavit in which he stated that he wanted

to withdraw his guilty plea and accused his trial counsel of ineffectiveness because counsel

had “forced” and “tricked” defendant throughout counsel’s representation of him. (Doc.

72). On November 22, 2006, the district court entered an order stating that the court no

longer had jurisdiction over the defendant’s criminal case because of the length of time that

had elapsed since the judgment of conviction. (Doc. 73).

Nothing further was heard from the defendant until May 12, 2007, when he filed a

letter motion to reduce sentence pursuant to § 3582(c)(2) due to a retroactive amendment

pertaining to convictions under 18 U.S.C. § 924(c)(1). (Doc. 74). Defendant’s letter

motion was construed by the clerk and by the district court as a motion to reduce his

sentence as a result of retroactive application of guidelines amendments to crack cocaine

offenses. (Doc. 74, 75). It was denied on June 10, 2008 because defendant’s guidelines

sentence was not “calculated or based upon a conviction for cocaine base.” (Doc. 75). 

Defendant filed a notice of appeal signed August 21, 2008, indicating that this

appeal was of the final judgment or order “arm bank brandishing firearm, count landed

guilty plea entered in this action on the 20th day of July 2004.” (Doc. 76). The instant

motion to vacate also bears the signature date of August 21, 2008. (Doc. 78).

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

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(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(f). If a defendant does not file an appeal, his conviction becomes final

when the ten day time period for filing an appeal expires. See Fed.R.App.P. 4(b)(1)(A)(I);

Fed. R. App. P. 26(a). In this case, defendant’s conviction and sentence became final

when this period expired, ten days after the July 20, 2004 entry of judgment in his criminal

case, or August 3, 2004. See Fed.R.App.P. 26(a)(2). Therefore, to be timely, his § 2255

motion had to be filed not later than one year from that date, or August 3, 2005. His

motion is facially untimely. 

In the motion, defendant raises two issues that could be construed as grounds for

relief. He contends that the government breached the plea agreement for unspecified

reasons, and that his counsel was constitutionally ineffective in advising him to enter the

plea agreement. With respect to the untimeliness of his motion, he asserts that it should

be excused because he is not knowledgeable in the law, as evidenced by the fact that he

paid a prison law clerk to file his § 2255 motion, and because some of his property was lost

during Hurricane Rita, including a “timely 2255,” which justifies equitable tolling. Several

documents are appended to the defendant’s submissions. First is a copy of a claim for

damage, injury or death, in which he asserts that his property was lost on September 30,

2005, nearly two months after a facially timely § 2255 motion should have been filed. Next

is a memorandum from the U.S. Department of Justice regarding a claim defendant filed

about loss or damage to personal property. The claim was filed on June 5, 2006, again,

well after a facially timely § 2255 motion would have been due. Finally, there is a letter

from Jose Francisco & Associates Legal Research Center requesting copies of defendant’s

PSI, Indictment and appellate briefs, indicating that after review of those documents Mr.

Francisco would advise whether he could be of assistance. This letter is dated August 8,

2005, again, after defendant’s § 2255 should have been filed. None of these attachments

establish defendant’s entitlement to equitable tolling of the one year statute of limitations

on filing § 2255 motions. See Neal v. Secretary, Department of Corrections, 271 Fed.

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Appx. 893 (11th Cir. 2008) (equitable tolling requires allegations of extraordinary

circumstances or due diligence); Downs v. McNeil, 520 F.3d 1311, 1322 (11th Cir.

2008)(same; also holding that ordinary attorney negligence, ie. with respect to a filing

deadline or failing to raise a potentially meritorious claim, does not warrant equitable tolling,

but that serious attorney misconduct can constitute “extraordinary circumstances” justifying

equitable tolling); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (equitable tolling

warranted “when a movant untimely files because of extraordinary circumstances that are

both beyond his control and unavoidable even with diligence.”) Thus, his motion should

be summarily dismissed.

Accordingly, it is respectfully RECOMMENDED:

The motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255

(doc. 153) be summarily DISMISSED as untimely. 

At Pensacola, Florida, this 27th day of August, 2008.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten

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; Local Rule 27(B); United States

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

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