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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. 3:01cr107/LAC

3:06cv377/LAC/MD

JIMMY MERCHANT SR.

REPORT AND RECOMMENDATION

This matter is before the court upon defendant’s memorandum in support of his title

28 U.S.C. § 2255(4) motion (doc. 197). Defendant has not filed an actual motion on the

proper forms as required by Local Rule 5.1(J). However, requiring him to do so would be

futile as his motion is subject to summary dismissal.

BACKGROUND and ANALYSIS

Defendant pleaded guilty to conspiracy to possess with intent to distribute

methamphetamine in violation of title 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 846. He was

sentenced on February 26, 2002 to a term of 251 months imprisonment, which was to run

concurrent with any undischarged terms of imprisonment. (Doc. 105 at 2). On October 8,

2004, defendant submitted a “motion to compel” seeking an answer or explanation from

the government with respect to its intent to file a Rule 35 motion, to which the government

responded. (Doc. 167 & 168). The court denied the defendant’s motion requesting review

of the government’s decision not to file a substantial assistance motion, finding that he had

not suggested a constitutionally impermissible motive for its decision. (Doc. 169). It also

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denied his request for reconsideration on December 14, 2004. (Doc. 175 & 178). The

instant § 2255 motion was docketed on September 5, 2006.

In this motion defendant claims that he received ineffective assistance of counsel

at sentencing because counsel, as a result of various acts and omissions, did not secure

a 5K1 or Rule 35 sentence reduction for him, that counsel was ineffective because he did

not appeal, and that counsel should have been present at meetings between the defendant

and DEA Agent Claude Posey. Defendant acknowledges that the motion is facially

untimely.

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. Defendant admits that the instant motion is “belated” but states that it

is the result of the discovery of new facts which could only have been discovered through

the exercise of due diligence after the normal one year statute of limitations expired. He

claims that the one year limitations period should be calculated from May 26, 2006, “when

he discovered the facts supporting his arguments for relief through the exercise of due

diligence.” He claims that May 26, 2006 was the date when he finally learned from Agent

Posey that no Rule 35 motion would be forthcoming in his case. Defendant asserts that

Agent Posey had a “constitutionally impermissible motive” for not recommending to the

United States Attorney that a Rule 35 motion be filed: Posey’s former interaction with the

defendant in Escambia County Alabama when Agent Posey was a local sheriff’s deputy

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and defendant was a “small time drug dealer.” Thus, he argues, Agent Posey was

discriminatorily “executing a personal vendetta” against him, in great part due to a mistaken

belief that the defendant withheld information from him about an Escambia County

Alabama murder. 

The problems with the instant motion are twofold. First, it appears that defendant

voluntarily chose to relinquish his right to pursue his ineffective assistance of counsel

claims in a timely manner, instead holding out hope that he would receive a Rule 35

motion, which was never “promised” to him. The fact that the hoped-for motion has not

materialized does not allow him to turn the clock back to seek previously relinquished

avenues of review. 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 § 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. In this case,

defendant’s assertion that he was mislead by Agent Posey over a period of nearly four

years that a Rule 35 motion would be forthcoming does not meet his burden. 

Second, defendant has not shown that this court has the authority to review the

government’s decision not to file a Rule 35 motion in his behalf. Although Rule 35(b) does

not define “substantial assistance” several courts have acknowledged that § 5K1.1 of the

sentencing guidelines supplies the appropriate parameters for evaluating substantial

assistance. United States v. Medjuck, 222 F.R.D. 399 (N.D. Cal. 2004) (adopting the

5K1.1 factors for the use under Rule 35(b)). See also United States v. Gangi, 45 F.3d 28

(2nd Cir. 1995); Wade v. United States, 504 U.S. 181 (1992); United States v. Forney, 9

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F.3d 1492 (11th Cir. 1993); United States v. Johnson, 241 F.3d 1049 (8th Cir. 2001). The

decision to file a § 5K1 motion is a matter of prosecutorial discretion. United States v.

Nealy, 232 F.3d 825, 831(11th Cir. 2000), cert. denied, 122 S.Ct. 552, 151 L.Ed.2d 428

(2001); United States v. Forney, 9 F.3d 1492, 1501 (11th Cir. 1993). The government has

a power, not a duty, to file such a motion when a defendant has substantially assisted.

Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992).

Even plea agreements that require the government to consider whether the aid to the

prosecution constitutes substantial assistance do not create a contractual duty to file a 5K1

motion. Forney, 9 F.3d at 1499-1500. Judicial review of a decision not to file a 5K1 motion

is appropriate only where there is an allegation and substantial showing that the

prosecution refused to file a substantial assistance motion because of a constitutionally

impermissible motivation, such as race or religion. Wade, 504 U.S. at 185-86, 112 S.Ct.

at 1843-44, 118 L.Ed.2d 524; Nealy, 232 F.3d at 831. Defendant’s assertion that Agent

Posey had a personal vendetta against him does not rise to the level of a constitutionally

impermissible motivation. See Forney, 9 F.3d at 1501-1502 n.5 (the government’s

decision to make or withhold a substantial assistance motion “is not reviewable for

arbitrariness or bad faith”); Wade, 504 U.S. at 186; 112 S.Ct. at 1844 (generalized

allegations of improper motive are insufficient to entitle a defendant to relief). 

Accordingly, it is respectfully RECOMMENDED:

The defendant’s motion to vacate as incorporated into his supporting memorandum

(doc. 197) be summarily dismissed. 

At Pensacola, Florida, this 13th day of September, 2006.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy hereof. 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 any objections shall be served upon any 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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