Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:01cr21-RH

 vs. Case No. 4:07cv263-RH/WCS

MORRIS DEWAYNE GREEN,

Defendant.

 /

 REPORT AND RECOMMENDATION TO DISMISS § 2255 MOTION

Defendant Morris, proceeding pro se, filed motion to vacate sentence pursuant to

28 U.S.C. § 2255, a memorandum of fact and law in support, and a motion for leave to

file affidavit. Docs. 46-48. The affidavit is accepted, and the motion to file (though

unnecessary) is granted. 

There is a one year time limit for filing a § 2255 motion, which 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 movant was prevented from making a motion by

such governmental action;

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 1 of 9
Page 2 of 9

1

 The § 2255 motion was submitted on an older form, which had a cover page

marked as p. 1. So the first page of the motion is marked as p. 2, the second page as

p. 3, etc. The court references the actual page (for example, the first page is referenced

as p. 1), which is also how the document appears in the electronic docket. There are

exhibits attached to the motion which Defendant references by exhibit number, but the

exhibits are not marked. The court therefore references the exhibits (part of doc. 46, at

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

(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.

§ 2255, ¶ 6. See also § 2255 Rule 3(c) ("[t]he time for filing a motion is governed by 28

U.S.C. § 2255, para. 6."). 

The § 2255 motion was filed on May 22, 2007 (the date Defendant delivered it for

mailing). Defendant's conviction was affirmed by the Eleventh Circuit on March 27,

2002. Doc. 44. For purposes of § 2255 ¶ 6(1), it became final on June 25, 2002, when

the 90 days for filing a petition for writ of certiorari expired. Clay v. United States, 537

U.S. 522, 525, 123 S.Ct. 1072, 1075, 155 L.Ed.2d 88 (2003) ("[f]or the purpose of

starting the clock on § 2255's one-year limitation period . . . a judgment of conviction

becomes final when the time expires for filing a petition for certiorari contesting the

appellate court's affirmation of the conviction."). 

If the period commenced under § 2255 ¶ 6(1), Defendant had to file his § 2255

motion no later than June 25, 2003, and the current motion is untimely. As addressed

ahead, Defendant asserts that the time commenced from a later date. 

The grounds raised in the § 2255 motion are as follows. Defendant claims he

was denied the right to appeal as counsel failed to file an appeal or consult with him

regarding an appeal (ground one). Doc. 46, p. 41

; doc. 47, pp. 3-4, 6-10. He claims

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 2 of 9
Page 3 of 9

pp. 16-27) by page number. 

2

 Defendant may be confusing this case with his Georgia case, in which no

appeal was taken. 

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

that, when he learned that counsel failed to file an appeal, he "proceeded in this court

with these proceedings seeking the reinstatement of his right to appeal," and counsel's

failure to file the appeal and deceiving Defendant into believing it had been filed warrant

tolling of the limitations period. Doc. 47, pp. 3-4, 5. In ground three, regarding

substantial assistance, Defendant asserts inter alia that his "direct appeal was forfeited

by counsel's failure to appeal because of cooperation." Id., p. 15. 

This claim is contradicted by the record as there was no failure to appeal. 

Defense counsel filed a notice of appeal, doc. 30, and the judgment was ultimately

affirmed by the Eleventh Circuit. Doc. 44.2 These allegations fail to justify a later

commencement date or toll the limitations period, and are without merit on the record. 

Defendant asserts ineffective assistance of counsel for advising him to enter a

plea and to cooperate with the Government to earn a sentence reduction (ground two). 

Doc. 46, p. 5; doc. 47, pp. 11-14. Defendant claims that his guilty plea was not knowing

and voluntary due to the ineffectiveness of counsel, and that his plea was coerced

(ground three). Doc. 46, p. 7. Specifically, Defendant alleges that he was promised

that if he pleaded guilty he could cooperate and earn a sentence reduction, and that he

has provided assistance but his sentence has not been reduced. Doc. 47, p. 15. He

claims that he did not understand the consequences of his plea, as he was advised to

plead guilty and cooperate for a sentence reduction. Id. Defendant claims that counsel

was incompetent for advising him to plead guilty and cooperate, and then abandoning

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 3 of 9
Page 4 of 9

3

 Defendant received three points for acceptance of responsibility. PSR, ¶ ¶ 10,

19. He is apparently confusing credit for acceptance of responsibility with credit for

substantial assistance to the Government. 

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

him. Id. "Further, counsel attempted to charge Green for assistance he owed to Green

already." Id. Defendant claims entitlement to an evidentiary hearing as a separate

ground for relief (ground four). Doc. 46, p. 8; doc. 47, pp. 16-17. 

In his affidavit, Defendant states that the only reason he pleaded guilty was to

receive substantial assistance; that he understood his cooperation would continue after

his Georgia arrest and he would receive a reduction to either the Florida or Georgia

sentence; that he was told by the agents his assistance was substantial and he was

entitled to a sentence reduction; and that the main reason he pleaded guilty in the

Georgia case "was based on the promise of a sentence reduction consideration." Doc.

48, attached affidavit, pp. 1-2. 

In the statement regarding timeliness of the § 2255 motion, Defendant claims

that he entered his plea pursuant to the advice that a substantial assistance motion

would be filed, and although he entered a plea he did not receive a reduction for

acceptance of responsibility due to the minimum mandatory penalty. Doc. 46, p. 12.3

He claims that he cooperated with authorities in Florida, but counsel advised him not to

take action because of the possible pending prosecution in Georgia. Id. He claims

counsel wanted funds to assist him in receiving a sentence reduction, and investigated

the matter once he was paid. Id. 

Because I was led to believe that my cooperation would/could be

accepted by both, Florida and Georgia Courts, I contacted AUSA King in

Georgia. In her reply, AUSA King make[s] clear that my case would not

be considered for a sentence reduction. This letter regarding efforts at

cooperation was dated on January 23, 2007. Accordingly, January 23,

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 4 of 9
Page 5 of 9

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

2007 was the date on which the facts supporting the claim or claims could

have been discovered through the exercise of due diligence. Due

diligence was exercised by Green when he continued to seek a sentence

reduction.

Id., pp. 12-13, citations (to exs. 11 and 12) omitted. 

The letter of January 23, 2007, written to Defendant by Assistant United States

Attorney Tracia King in the Middle District of Georgia, provides:

I am writing this letter in response to your correspondence dated January

9, 2007. First of all, I have not made any request for you to provide

assistance of any kind. As I told you, your attorney, and even your father

who called just a few weeks ago, I cannot tell you that you can receive a

reduction in your sentence based on assistance from a third party. Since

speaking with you more than six months ago, you have failed to provide

me with any information about precisely what this third party can do by

way of assistance. Without knowing this information, there is absolutely

no way for me to assess whether there would be any federal interest in the

information nor does it allow me to assess whether said assistance would

be substantial. 

Accordingly, I will not consider your case for a Rule 35 sentence

reduction. Please do not contact me any further about this matter. 

Doc. 46, p. 27. 

Defendant does not supply a letter dated January 9, 2007, but he submitted a

letter he wrote to King dated December 27, 2006. Id., p. 26. Defendant states there

that he is writing "in response to your request regarding substantial assistance," that he

has offered to provide assistance through a third party, and provides the name and

number of the third party who could provide assistance. Id. 

Long before King's letter in January 2007, Defendant had to have been aware

that he would not be getting a reduction for substantial assistance in this case. There

was no plea agreement, and at the time of the plea the court asked if there was any

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 5 of 9
Page 6 of 9

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

prospect of a substantial assistance motion. Doc. 36, p. 13. See also PSR, ¶ 53

(noting there was no plea agreement). The prosecutor responded:

There's a possibility, and I discussed that with Mr. Green and his lawyer

before the case was called today, and indicated that this plea would

enable us to speak to him, and he indicated that he had some information. 

We indicated that we would be willing to listen, and, if we can apply it and

use it in some positive way, the government felt that it established

substantial assistance, we would have no reluctance to file that motion, if it

was appropriate.

Doc. 36, p. 13. The Government had advised Defendant that if he went to trial and was

convicted, "we would be much less interested in talking to him." Id., p. 14. Asked by

the court if the Government had made any promise to file a substantial assistance

motion, the Government responded, "[n]o, sir, there has been no promise." Id. 

Defendant was advised that the filing of a motion was entirely up to the

prosecutor; it was not something that could be done by the court or defense counsel. 

Id. He was advised that even if the motion was filed, it was entirely up to the court

whether (and how much) to reduce the sentence. Id., pp. 14-15. Defendant was

advised he could not later withdraw his plea if he did not like the decision of the

Government or the court. Id., p. 15. Defendant indicated he understood. Id. 

The possibility that Defendant might provide substantial assistance was noted by

the prosecutor at sentencing, "hop[ing] that that reaches fruition . . . ." Doc. 37, p. 15. 

Defendant was sentenced on August 16, 2001, and judgment was entered on August

21, 2001. Docs 28 (minutes) and 29 (judgment). 

A Fed.R.Crim.P. 35(b) motion must generally be filed within one year of

sentencing. Rule 35(b)(1). A motion made be made later if the information was not

known to the defendant until a year or more after sentencing; the information is provided

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 6 of 9
Page 7 of 9

4

 At the time of Defendant's sentencing, the rule required that the motion be filed

within one year of sentencing, and later than one year only if the information was not

known by the defendant until one year or more after sentencing. Rule 35(b) (2001). It

had been amended to allow the other exceptions before the one year for filing a § 2255

motion had expired, see Rule 35 (2003), so the court assumes the additional exceptions

would apply here. 

5

 The failure to file a substantial assistance motion could only be a basis for relief

if it somehow undermined the knowing and voluntary nature of Defendant's guilty plea. 

Cf. United States v. Dorsey, 497 F.3d 1221, 1224-25 (11th Cir. 2007) (the court lacks

authority to review the Government's refusal to file a substantial assistance motion

absent an allegation and a substantial showing that the refusal was based on a

constitutionally impermissible motive, such as race or religion) (collecting cases).

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

within one year but does not become useful to the Government until later; or the

defendant provides information outside the period which he knew of earlier but did not

anticipate would be useful to the Government until after one year, and "which was

promptly provided to the government after its usefulness was reasonably apparent to

the defendant." Rule 35(b)(2)(A)-(C).4

 

When a motion had not been filed within one year of August 16, 2001, it should

have been apparent that it probably would not be filed. Defendant had a reasonable

amount of time to investigate or pursue a challenge to his guilty plea at that time,5 as the

one year for the Government to file a Rule 35 motion expired on August 16, 2002, and

(as set forth above) Defendant's one year for filing a § 2255 motion expired on June 25,

2003. Even if the expiration of the Rule 35(b) period could commence the limitations

period under § 2255 ¶ 6(4), the § 2255 motion was filed several years too late. 

Further, assuming the information from the Georgia prosecutor were somehow

relevant to the merits or timeliness analysis of the § 2255 motion in this case, Defendant

was aware of the facts earlier than 2007. He wrote a letter to King on October 31,

2002, stating that while his Florida case was pending he furnished information to ATF

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 7 of 9
Page 8 of 9

6

 Defendant was indicted in the Middle District of Georgia on March 7, 2002, for

car-jacking with intent to cause death or serious bodily harm, and for using, carrying,

possessing, and discharging a firearm during and in relation to a crime of violence (i.e.,

the car-jacking). M.D. Georgia case number 6:02cv04-CDL (available in PACER)

(Public Access to Court Electronic Records). 

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

Agent Bill Crummett, who promised that Defendant would get a substantial assistance

motion either in the Northern District of Florida or the Middle District of Georgia. Doc.

46, p. 16. By letter dated December 2, 2002, King responded:

The Middle District of Georgia does not have any agreement with you

concerning any potential cooperation by you which would result in a

possible reduction of the sentence you received in this district. Any

information provided by you to the Northern District of Florida should be

handled with your case in the Northern District of Florida. 

Id., p. 17. At the time of this letter, Defendant still had time to file his § 2255 motion in

this court. 

Defendant cannot challenge his sentence here based on what happened in

Georgia. He had not even been indicted in that case until after judgment had been

entered in this case. See PSR, ¶ 36 (noting that the United States Attorney in the

Southern District was considering charges for the car-jacking and shooting in Georgia

set forth in ¶ 24; "[a]ny charging decisions will be made subsequent to the resolution of

this federal case.").6

It plainly appears from the § 2255 motion, supporting documents, and the record

that Defendant is not entitled to any relief because the motion is untimely. 

Consequently, the § 2255 motion should be summarily dismissed. § 2255 Rule 4(b). 

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 8 of 9
Page 9 of 9

Case Nos. 4:01cr21-RH and 4:07cv263-RH/WCS

It is therefore respectfully RECOMMENDED that the § 2255 motion, doc. 46, be

SUMMARILY DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on October 22, 2007.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

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.

Case 4:01-cr-00021-RH-WCS Document 50 Filed 10/22/07 Page 9 of 9