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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. 5:10-cr-39-RS-GRJ

MARTIN RAMIREZ-RODRIGUEZ,

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 333, Defendant’s Motion To Vacate, Set

Aside, Or Correct Sentence pursuant to 28 U.S.C. § 2255, and Doc. 344, the

Government’s Motion to Dismiss the motion to vacate as time-barred. The Government

has filed a Supplemental Response, Doc. 351, and Defendant has filed a reply in

opposition to the motion to dismiss, Doc. 357. For the following reasons, the

undersigned recommends that the Government’s motion to dismiss the motion to

vacate as time-barred be granted. 

Section 2255 provides:

(a) A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the sentence

was imposed in violation of the Constitution or laws of the United States, or that

the court was without jurisdiction to impose such sentence, or that the sentence

was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the sentence to vacate, set

aside or correct the sentence.

28 U.S.C. § 2255(a). “A 1-year period of limitation shall apply to a motion under this

section.” Id. at § 2255(f). The one-year limitations period 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
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States is removed, if the movant 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.

Id. Further, “in the proper case, § 2255’s period of limitations may be equitably tolled.” 

Sandvik v. United States, 177 F.3d 1269, 1271 (11 Cir. 1999). However, equitable th

tolling is an extraordinary remedy that is applied sparingly; indeed, it is appropriate only

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

beyond his control and unavoidable even with diligence.” Sandvik, 177 F.3d at 1271;

see also Wade v. Battle, 379 F.3d 1254, 1264-65 (11th Cir.2004) (movant bears burden

of establishing entitlement to extraordinary remedy of equitable tolling) (§ 2254 case).

The judgment of conviction in this case was entered on November 10, 2010.

Doc. 240. Defendant did not appeal. For purposes of the limitations period,

Defendant’s conviction became final when the 14-day period for filing an appeal

elapsed on November 24, 2010. See Fed. R. App. P. 4(b)(1)(a), 26(a)(2) (2010). 

The limitations period expired one year later, on November 25, 2011.

The instant motion to vacate was filed on February 27, 2012, beyond the oneyear limitations period. However, Petitioner executed the motion under penalty of

perjury, and he avers in the motion that it was placed in the prison mailing system on

October 26, 2011. Doc. 333 at 13. When a prisoner provides a declaration under

penalty of perjury establishing that he has satisfied the requirements of the “mailbox

rule” by timely providing his federal court filing to prison officials for mailing, the burden

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of proof then shifts to the respondent to establish through the prison mail log or other

records that the pleading was not in fact delivered in a timely manner. See Allen v.

Culliver, 471 F.3d 1196, 1198-99.

In the Supplemental Response, the Government provides a declaration from

Coleman Supervisory Correctional Systems Specialist Shereen Dunlap. Doc. 351,

Exh. A. According to the declaration, inmates at FCC Coleman deliver outgoing special

or legal mail directly to a staff member. The staff member confirms that the inmate

delivering the mail is the same inmate reflected in the return address and then delivers

it to the mail room. When staff are given special/legal mail, they note the date of

receipt on the back of the envelope, and stamp it with a statement reflecting that the

mail was processed through special mailing procedures. Absent extraordinary

circumstances, outgoing letter mail is dispatched to the U.S. Postal Service within 24

hours of receipt by the staff member, excluding weekends and holidays. No such

extraordinary circumstances occurred during the time period in question that would

have delayed mail by more than a few days at most. Id. The Government suggests

that a hearing could be scheduled for it to introduce evidence that Defendant presented

his motion to prison officials within a few days of its postmark date of February 23,

2012, well after the expiration of the limitations period. Doc. 351.

The undersigned concludes that an evidentiary hearing is unnecessary. In his

reply to the Defendant’s Supplemental Response, Defendant states that he did not use

the Coleman special mail or legal mail prison mailing system to mail his motion to

vacate. Doc. 357 at 5. Defendant states that he instead utilized the general

correspondence mail depository prison mailing system in his housing unit. Id. 

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The Rules Governing Section 2255 Proceedings govern whether Petitioner's

initial mailing was timely. See Michel v. United States, 519 F.3d 1267, 1272 (11th Cir.

2008). Rule 3(d), Rules Governing Section 2255 Proceedings, incorporates the

“mailbox rule,” conditioned, however, on the inmate using the institution's prescribed

legal mail system, if one is available. Rule 3(d) provides that “a paper filed by an

inmate confined in an institution is timely if deposited in the institution's internal mailing

system on or before the last day for filing. If an institution has a system designed for

legal mail, the inmate must use that system to receive the benefit of this rule.”

The Government’s Supplemental Response establishes that FCC Coleman has

a special or legal mail system available to inmates, which, if utilized, results in the mail

being dated and stamped with a statement reflecting that the mail was processed

through special mailing procedures. The envelope containing Defendant’s motion bore

no such marks. Moreover, Defendant concedes that he did not comply with Rule 3(d).

Rather, by his own admission, he used the prison's general correspondence mailing

system. Doc. 357. Accordingly, he does not receive the benefit of the mailbox rule, as

incorporated into Rule 3(d), Rules Governing Section 2255 Proceedings. See Porchia v.

Norris, 251 F.3d 1196, 1198 (8th Cir. 2001) (in context of Rule 4(c)(1), Fed.R.App.P., if

“a prison maintains two internal mail systems, one for regular mail and another for legal

mail, the prisoner gains the benefit of the mailbox rule only if he deposits his notice of

appeal in the system designed for legal mail.”); United States v. Harris, 333 Fed. Appx.

720 (4th Cir. 2009) (same); Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (in

context of § 2254 proceeding, if “the prison has a legal mailing system, then the

prisoner must use it as the means of proving compliance with the mailbox rule.”). 

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Accordingly, the undersigned concludes that the instant motion to vacate, Doc.

333, is untimely.

Certificate of Appealability 

Section 2255 Rule 11(a) provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant,” and if a

certificate is issued “the court must state the specific issue or issues that satisfy the

showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing

Section 2255 Cases.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument

to the attention of the district judge in the objections permitted to this report and

recommendation.

In light of the foregoing, it is respectfully RECOMMENDED that the motion to

dismiss, Doc. 344, be GRANTED, that the motion to vacate, Doc. 333 be DENIED, and

that a COA be DENIED.

IN CHAMBERS this 11 day of December 2012. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written

objections to the proposed findings and recommendations within 14 days after

being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 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 No: 5:10-cr-39-RS-GRJ