FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 1, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15656

Non-Argument Calendar

________________________

D. C. Docket Nos. 05-20934-CV-DLG & 02-20794-CR-DLG

TERRY TUCKER, 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 1, 2007)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
In his petition, Tucker alleged that his lawyer was ineffective in other ways, as well. We 1

need not discuss those allegations in the context of this appeal, which focuses solely on the

timeliness of Tucker’s habeas petition. 

2

After pleading guilty to distributing cocaine, Terry Tucker was sentenced to

federal prison on April 23, 2003. He did not appeal the sentence. Nearly two

years later, on April 5, 2005, Tucker filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2255, contending that his trial counsel had been ineffective

by failing to file a timely appeal. The district court dismissed the petition as 1

untimely. Tucker appeals from that judgment, challenging the court’s decision

regarding timeliness and raising several peripheral issues as well. 

Although the district court issued a certificate of appealability on four

questions, only one demands resolution: Did the trial court clearly err when it

adopted the magistrate judge’s finding that Tucker’s petition was untimely? The

answer is no; therefore, we affirm. 

Under 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), a prisoner moving to vacate his sentence

must do so within one year 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

(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.

Tucker contends that his petition was timely under § 2255(4) because he filed it

within one year of discovering that his lawyer had not filed a direct appeal of his

sentence. 

In determining whether a motion is timely under § 2255(4), a district court

must first consider whether the petitioner exercised due diligence in discovering

the facts underlying his claim. Aron v. United States, 291 F.3d 708, 711 (11th Cir.

2002). Due diligence does not require a litigant to undertake repeated exercises in

futility or to exhaust every imaginable option, but rather to make reasonable efforts

to discover the facts underlying each claim. Id. at 712. If the court finds that a

petitioner was not diligent in his efforts, it must proceed to consider when the

petitioner could have discovered the facts essential to his claim had he been acting

diligently. Id. at 711, n.1. So long as the petition is filed within one year of the

date on which the facts could have been discovered with reasonable diligence, the

petition will be timely. 
 On appeal, Tucker argues that the magistrate judge violated the Magistrates Act, 28 2

U.S.C. § 636(b)(1) and Rule 8(b) of the Rules Governing Section 2255 Proceedings by issuing

his third revised report and recommendation without first being asked by the district judge to

amend or supplement his report. Nothing in § 636(b)(1) prohibits magistrates from correcting

perceived errors in their reports and recommendations when mistakes come to light, and good

sense suggests that such a practice is both prudent and efficient. The district court reviewed each

version of the report and recommendation, as well as Tucker’s objections to each of the three

versions, before adopting the magistrate’s findings and denying Tucker’s habeas petition. The

entire process of determining the disposition of Tucker’s petition “t[ook] place under the district

court’s total control and jurisdiction, and the judge exercise[d] the ultimate authority to issue an

appropriate order.” Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006) (citing Thomas v.

4

This court reviews for clear error the question whether a petitioner exercised

due diligence in discovering the evidence upon which he bases his § 2255 petition. 

Id. at 711. This standard requires us to affirm a district court's findings of fact

unless the record lacks substantial evidence to support the factual determinations. 

Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). In cases such as

this, where a magistrate judge has made a credibility determination based on an

assessment of witnesses’ in-court testimony, we “defer to the magistrate judge’s

determinations unless his understanding of the facts appears to be unbelievable.” 

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). 

Tucker argues that the magistrate’s credibility determinations, adopted by

the trial court, were inconsistent and therefore incredible. In support of this

argument, Tucker points to the fact that the magistrate judge twice revised and

supplemented his report and recommendation (once at the request of the district

judge and once sua sponte). Several of the facts set forth in earlier versions of the 2
Arn, 106 S. Ct. 466, 474 (1985)). We find no merit to Tucker’s challenge to the magistrate’s

action. 

5

magistrate’s report and recommendation contradict facts found in the final report

and recommendation, leading Tucker to conclude that all of the court’s factual

findings were unreliable. Of most concern to Tucker is the fact that in the original

report and recommendation, filed January 27, 2006, the magistrate found that

Tucker had asked his lawyer to file an appeal of his sentence and that the lawyer

did not do so, a fact that would constitute ineffective assistance per se. See

Peguero v. United States, 119 S. Ct. 961, 965 (1999). In the second supplemental

report and recommendation filed May 3, 2006, the magistrate rescinded the

finding, concluding instead that “counsel’s testimony that Tucker did not ask him

to file a notice of appeal [was] more credible than Tucker’s” testimony to the

contrary. 

Although it is understandable that Tucker objects to the magistrate judge’s

unexplained change of mind, his focus is misplaced. The disposition of Tucker’s

habeas petition turns not on whether he asked his lawyer to file an appeal, but on

whether he filed his habeas petition within “one year of 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(4). The magistrate judge was clear

in his finding that Tucker was not diligent in that regard, and the district judge did
Although Tucker provided the court with a copy of a legal call request form dated 3

October 12, 2004, the form contained no notations indicating whether the call was ever made. 

6

not clearly err by adopting the magistrate’s findings of fact and the legal

conclusions that flowed from them.

During the evidentiary hearing held before the magistrate judge, Tucker

testified unequivocally that after he was sentenced he asked his lawyer to file an

appeal. The remainder of Tucker’s testimony, which addressed the steps he took

between sentencing and the filing of his § 2255 petition, was difficult to follow and

at times contradictory. Tucker testified that after his sentencing hearing he spoke

to his lawyer for ten minutes about his decision to appeal; a few breaths later, he

testified that the conversation lasted only five seconds. At one point in the

evidentiary hearing, Tucker testified that he began working with his cellmate on

his habeas petition between four and seven months after being sentenced, during

the time he allegedly believed his direct appeal was pending. Later, he testified

that he began work on the petition in earnest shortly after learning that his lawyer

had not filed an appeal; however, he was unable to recall when he discovered that

his appeal had not been filed. Tucker admitted that he made no effort to contact

his lawyer to discuss the status of any appeal, although he did try to obtain

unspecified paperwork from the lawyer. Tucker admitted that he made no effort to

contact the court to check on the status of appeal until October 2004 at the earliest.3
 As a peripheral matter, Tucker takes issue with a sentence in the magistrate judge's 4

second revised report and recommendation which read, "A member of the clerk's office at the

Court of Appeals advised that when mail is received and no appeal is pending, it is usually

returned to the inmate and sometimes forwarded to the district court . . . . That did not happen

in this case." The magistrate judge noted that there were no forwarded letters in Tucker's district

court file, and that no docket entries indicated that Tucker had inquired about the status of any

appeal. 

Tucker suggests that the magistrate judge's reliance on the appellate clerk's out of court

statement violated his rights by preventing him from cross-examining the clerk about the

procedures for returning mail to prisoners. In the third revised report and recommendation,

however, the magistrate judge clarified that even if he had not consulted the clerk, his credibility

determination would have remained the same because of the contradictions and vagaries of

Tucker's testimony. Any reliance on the clerk's statements was, at worst, a harmless error. 

7

 The transcript reveals that Tucker was unfamiliar with legal terminology and

may have had difficulty understanding some of the questions posed to him at the

evidentiary hearing. Nevertheless, it was not clearly wrong for the magistrate

judge to conclude that Tucker could not provide a coherent timeline of events

because he had not acted as diligently as he claimed. The magistrate’s credibility

determination was bolstered by the fact that although Tucker testified that he wrote

to the court immediately after learning that there was no appeal pending, he did not

produce copies of the letters he had allegedly written, and none were found in the

district court file.4

The basis for Tucker's ineffective assistance claim was the fact that his

lawyer did not file a timely appeal when allegedly asked to do so. The magistrate

judge emphasized that Tucker could have discovered this fact at any time

following the expiration of his appeal deadline in May 2003, by contacting the
8

court or his lawyer. Tucker contends that the question should not have been when

it became possible for Tucker to discover the information, but when a reasonably

diligent person would have sought the information and found it. Tucker argues

that because the judge failed to specify a date by which a reasonably diligent

person would have discovered that no appeal was pending in the case, the court's

finding on diligence was flawed. 

What Tucker overlooks is that "the due diligence inquiry is an individualized

one," Aron, 291 F.3d at 712. The magistrate was not required to speculate about

when a prototypical Diligent Person would have inquired about the status of a

prototypical appeal, but rather when a reasonably diligent person in petitioner's

situation would have taken action that led to the discovery that no appeal had been

filed. 

As the magistrate judge pointed out repeatedly, Tucker's testimony regarding

his alleged diligence was vague and unconvincing. Tucker and his girlfriend

testified that they made repeated attempts to contact Tucker's trial lawyer, but they

asked for paperwork, not about the status of any pending appeal. Although

Tucker did send his lawyer one letter asking what had happened to "the appeal

briefs," he did not do so until February 7, 2005, a delay the magistrate found to be

inconsistent with diligent action. Moreover, at the evidentiary hearing, Tucker
9

could not remember when he learned that there was no appeal, when he began

working on the habeas petition, or how long he waited to take action after learning

that there was no pending appeal. In the face of these individualized facts, it was

reasonable for the magistrate to conclude that a reasonably diligent person in

Tucker's position would have discovered that there was no pending appeal more

than one year before Tucker's habeas petition was filed. 

The district court did not clearly err in its finding that Tucker did not

exercise reasonable diligence, which means that Tucker's petition is barred as

untimely. Consequently, we are unable to consider the underlying merits of

Tucker's claim that his lawyer was ineffective. 

AFFIRMED.