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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. 3:03CR140/RV;3:07cv338/RV/MD

3:03CR147/RV;3:07cv340/RV/MD

ROBERT M. MURPHY

REPORT AND RECOMMENDATION

This matter is before the court upon identical motions to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. §2255 filed in the above-styled cases. (Case

3:03cr140/RV, doc. 435; case 3:03cr147, doc. 16). Defendant has also filed motions for

leave to appeal in forma pauperis in each case. (Doc. 436, doc. 17). As there is no fee

required for the filing of a motion pursuant to § 2255 the latter motion will be denied as

moot. 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 motions are

untimely and that they should be summarily dismissed.

I. BACKGROUND

Defendant was charged in case 3:03cr140/RV with conspiracy to possess with intent

to distribute cocaine, and in case 3:03cr147/RV with money laundering. Represented by

retained counsel Michael Griffith, he entered a simultaneous plea of guilty in both cases

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Defendant pleaded guilty to an indictment in the controlled substance case and waived indictment

and pleaded guilty to an information in the money laundering case. (Doc. 258 at 25-29).

Case No: 3:03cr147/RV; 3:07cv340/RV/MD

on December 12, 2003.1 With respect to the conspiracy charge, defendant stated that he

understood the charge and had fully discussed it with counsel. (Doc. 258, at 22-24). The

agreement signed by the defendant acknowledged that the conspiracy involved five

kilograms or more of cocaine. (Id. at 34). With respect to the money laundering charge,

defense counsel indicated that he had discussed the contents of the plea agreement with

his client in detail, although defendant had not seen the actual information before that date.

(Id. at 25). Defendant indicated his intent to plead guilty to this charge, and that he

understood the charge. (Id. at 28-29). When asked whether he had fully discussed the

charge with counsel, he asked for another minute to discuss something with him, then

defendant told the court that he was guilty of cashing checks that were the proceeds of

illegal activity at the Sandshaker. (Id. at 29-30). He reiterated to the court that he

understood the charge and that counsel had made It clear to him, and counsel also

explained what he had discussed with his client. (Id. at 31, 46). Counsel told the court

that he had estimated that his client was facing 20 years to life imprisonment, although

there was no guarantee what the sentence would be. (Id. at 42). Finding the defendant

to have been fully informed, the court accepted the guilty plea. (Doc. 258 at 55).

Defendant was sentenced on April 28, 2004. At sentencing, the court noted that

defendant had an offense level of 37 and a criminal history category of I, which resulted

in a guideline range of 210 to 262 months. (Doc. 367 at 5). Counsel gave a lengthy

statement to the court setting forth the defendant’s unfortunate circumstances (doc. 367

at 8-11), and then the defendant himself read a statement he had written to the court. (Id.

at 11-14). The Assistant United States Attorney addressed the court with respect to

defendant’s cooperation and the 5K1 motion that had been filed, and the court sentenced

defendant to a term of 90 months imprisonment. (Id. at 17). In doing so, the court noted

that “the guideline range as calculated did not take into account the otherwise applicable

safety valve which would have reduced [defendant’s] sentence significantly but for the

leadership role that otherwise applies in this case.” (Id. at 17). No fine was imposed due

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Case No: 3:03cr147/RV; 3:07cv340/RV/MD

to the defendant and his wife forfeiting property estimated at approximately one and a half

million dollars. (Id. at 18). Judgment was entered on April 29, 2004, and defendant did not

appeal. On May 10, 2007, defendant’s sentence was further reduced to only 66 months

after the government filed a Rule 35 motion. (Doc. 434).

In the present motion, defendant raises five grounds for relief. He contends that

counsel was constitutionally ineffective because he failed to get inaccurate information

removed from the defendant’s PSR, that counsel was engaged in an on-going fiduciary

relationship with one of the co-conspirators and hence operated under a conflict of interest,

that counsel had “conflicted motivations” for representing the defendant, and that

defendant “remain[s] unconvinced that [he] was indeed guilty of money laundering,” and

that his right of allocution was compromised because counsel delivered his statement.

II. LEGAL ANALYSIS

Because collateral review is not a substitute for direct appeal, the grounds for

collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner

is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the

Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the

maximum authorized by law or (4) is otherwise subject to collateral attack. 28 U.S.C. §

2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v.

Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief under 28 U.S.C. § 2255 ‘is reserved

for transgressions of constitutional rights and for that narrow compass of other injury that

could not have been raised in direct appeal and would, if condoned, result in a complete

miscarriage of justice.’” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)

(citations omitted). “[A] non-constitutional error that may justify reversal on direct appeal

does not generally support a collateral attack on a final judgment, unless the error (1) could

not have been raised on direct appeal and (2) would, if condoned, result in a complete

miscarriage of justice.” Lynn, 365 F.3d at 1232-33 (citations omitted); Hill v. United States,

368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (error of law does not provide basis

for collateral attack unless claimed error constituted a “fundamental defect which inherently

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The fact that the court’s order on the Rule 35 motion was entered on May 10, 2007 does not affect

the timeliness of this motion, as the motion relates back to defendant’s original plea and conviction. 

Case No: 3:03cr147/RV; 3:07cv340/RV/MD

results in a complete miscarriage of justice.”). The “fundamental miscarriage of justice”

exception recognized in Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2678, 2649, 91

L. Ed. 2d 397 (1986), provides that it must be shown that the alleged constitutional violation

“has probably resulted in the conviction of one who is actually innocent. . . .” 

Title 28 U.S.C. § 2255 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. To have been timely filed, defendant’s motion should have been filed

within one year from the date on which the judgment of conviction became final. 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 ten days after sentencing,

on May 9, 2004. Therefore, to be timely, his § 2255 motion had to be filed not later than

May 9, 2005. As noted above, defendant’s motion was not filed until August of 2007.

Therefore, it was facially untimely.2 

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 §

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 In addition, after having reviewed the rearraignment and sentencing transcripts, the court notes that

several factual allegations made in the defendant’s motion with respect to other claims are flatly contradicted

by the record.

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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)). It only applies

in “truly extraordinary circumstances.” Johnson, 340 F.3d at 1226 (citing Jones v. United

States, 304 F.3d 1035, 1039-40; Drew, 297 F.3d at 1286). The onus is on the 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)).

Defendant claims that he did not learn of the facts underlying one of his claims until

August 14, 2006 when he asked prison authorities to review his file. This statement does

not support a conclusion that the claim in question could not have been discovered earlier

through the exercise of due diligence, or that equitable tolling should apply.3 Therefore,

defendant’s motions should be dismissed as untimely.

Accordingly, it is ORDERED:

Defendant’s motions to proceed in forma pauperis (doc. 17, 436) are DENIED as

moot. 

And based on the foregoing, it is respectfully RECOMMENDED:

The motions to vacate, set aside, or correct sentence (Case 3:03cr140, doc.

435, and case 3:03cr147, doc. 16) be summarily DENIED as untimely.

At Pensacola, Florida, this 21st day of August, 2007.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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Case No: 3:03cr147/RV; 3:07cv340/RV/MD

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; United States v. Roberts, 858

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

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