IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRELL MICKELS : 

#11733-003, :

 Petitioner, : 

 : CRIMINAL NO. 10-00152-WS-B

vs. : CIVIL ACTION NO. 14-00357-WS-B

 :

UNITED STATES OF AMERICA, : 

Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate, 

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 113) 

and the Government’s Motion to Dismiss (Doc. 120). This action 

has been referred to the undersigned Magistrate Judge for a 

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) 

and Rule 8(b) of the Rules Governing Section 2255 Cases and is 

now ready for consideration. The undersigned has conducted a 

careful review of the record and finds that no evidentiary 

hearing is required to resolve this case. Kelley v. Sec’y for 

Dep’t of Corr., 377 F.3d 1317 (11th Cir. 2004). Following a 

complete review of this action, the undersigned recommends that 

the Government’s Motion to Dismiss be GRANTED and that Mickels’

habeas petition be DISMISSED. The undersigned also recommends 

that should Mickels file a certificate of appealability, it 

should be DENIED as he is not entitled to appeal in forma

pauperis.

I. PROCEDURAL HISTORY

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On July 29, 2010 Terrell Mickels was indicted on charges of 

conspiracy to possess with intent to distribute crack cocaine

(Count One) and possession with intent to distribute crack 

cocaine (Count Two, Three, and Four). (Doc. 1). On October 26, 

2010, Mickels entered a guilty plea, pursuant to a written plea 

agreement, to possession with intent to distribute crack cocaine 

in violation of 21 U.S.C. § 841(a)(1) (Count Three). (Doc. 41). 

Mickels was sentenced to a term of 188 months and Counts 

One, Two, and Four were dismissed on the Government’s Motion 

(Minute Entry 06/21/2011). Judgment was entered on June 21, 

2011. (Doc. 70). Mickels did not file an appeal. However, more 

than two (2) years later, on September 3, 2013, Mickels filed a 

“Motion for Retroactive Application of Sentencing Guidelines to 

Crack Cocaine Offense 18 USC 3582.” His motion was denied. 

(Docs. 91, 94). He appealed the denial, and on June 2, 2014, 

the Eleventh Circuit dismissed the appeal as time-barred. (Doc. 

110).

Mickels filed the instant Motion to Vacate, Set Aside, or 

Correct Sentence under 28 U.S.C. § 2255 (Doc. 113) on July 22, 

2014. 1 In the motion, Mickels argues that he was coerced into 

 1 		 Although the petition was received by the Clerk’s Office on 

July 28, 2014 pursuant to the mailbox rule, a prisoner’s 

petition is deemed filed on the date it is delivered to prison 

officials for mailing, absent contrary evidence. Washington v. 

United States, 243 F.3d 1299, 1301 (llth Cir. 2001). The record 

reflects that Mickels certified that he sent his petition on 

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pleading guilty because of the ineffective assistance of his 

counsel. (Doc. 113 at 1). He also argues that he was illegally 

sentenced above the statutory maximum. According to Mickels, 

“the Supreme Court held that any fact that increases a 

defendant’s mandatory minimum must be submitted to a jury to be 

proven beyond a reasonable doubt. (citing Alleyne 11-9335) 

[sic].” (Doc. 113 at 2). In response to Mickels’ motion, the 

Government filed a Motion to Dismiss and argues that Mickels’

petition should be dismissed as time-barred. (Doc. 120). For 

the following reasons, the undersigned finds that Mickels’

petition is untimely and recommends that the Motion to Dismiss 

be GRANTED.

II. DISCUSSION

A § 2255 motion to vacate a federal sentence is subject to 

a one-year statute of limitations. Pursuant to the AntiTerrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 

2255 (f), the limitations period begins running from the latest 

specified dates, as follows:

A 1-year period of limitation shall apply to 

a motion under this section. The limitation 

period shall run from the latest of –

(1) the date on which the judgment of 

conviction becomes final;

 

July 22, 2014, and absent evidence to the contrary, that date 

is deemed the date on which he tendered the petition to prison 

officials for mailing.

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(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) 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(f). 

In most cases, the triggering date is the date upon which 

the judgment of conviction became final under 28 U.S.C. § 

2255(f)(1). In this case, the judgment was entered on June 21, 

2011; thus, Mickels' conviction and sentence became final 

fourteen (14) days later on July 5, 2011. (Doc. 70). See

Fed.R.App.p.4(b)(1)(A)(i); See also Mederos v. United States, 

218 F.3d 1252, 1253 (11th Cir. 2000). Therefore, the last day 

that Mickels could have timely filed his § 2555 petition was on 

July 5, 2012, one year after the statute of limitations began to 

run. Mickels, however, did not file his § 2555 motion until 

July 22, 2014, which was more than two (2) years after the time 

for filing had expired. (Doc. 113). 

Mickels does not argue that his petition was filed within 

the one-year statute of limitations. Instead, as noted by the 

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Government, Mickels cites Alleyne v. United States, 133 S. Ct. 

2151, 186 L. Ed. 2d 314 (2013) and appears to argue that 28 

U.S.C. § 2555(f)(3) applies to his case because a new right was 

recognized and made retroactively applicable by the Supreme 

Court’s decision in Alleyne. In support of this argument, 

Mickels states, “[d]efendant meets the first prong in the 

saving[s] clause because he reserved this argument or raised 

this issue at hearing, which satisfies retroactivity.” (Doc. 113 

at 2). The Court is not persuaded by this argument. 

As noted, § 2255(f)(3) provides that the one-year statute 

of limitations begins to run from "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." 28 

U.S.C. § 2255(f)(3). Mickels’ purported reliance on Alleyne is 

unavailing because Alleyne does not apply retroactively on 

collateral review. As recently explained by the Eleventh 

Circuit:

First, neither Alleyne itself nor any later Supreme 

Court decision holds that Alleyne is retroactive. See

United States v. Harris, 741 F.3d 1245, 1250 n.3 (11th 

Cir. 2014). Second, the Alleyne Court explained that 

its holding was an application of the rule established 

in Apprendi v. New Jersey, see Alleyne, 133 S. Ct. at 

2163 (applying Apprendi, 530 U.S. 466, 120 S. Ct. 

2348, 147 L. Ed. 2d 435 (2000)), and we have 

repeatedly held that Apprendi 's rule does not apply 

retroactively on collateral review. See, e.g., 

Dohrmann v. United States, 442 F.3d 1279, 1281-82 

(11th Cir. 2006) (holding that Apprendi does not 

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retroactively apply to § 2241 petitions); McCoy v. 

United States, 266 F.3d 1245, 1258 (11th Cir. 2001) 

(holding that Apprendi does not retroactively apply to 

§ 2255 motions). If Apprendi's rule is not retroactive 

on collateral review, then neither is a decision 

applying its rule. See In re Anderson, 396 F.3d 1336, 

1340 (11th Cir. 2005) (explaining that decisions 

"based on an extension of Apprendi" are not 

retroactive); see also Simpson v. United States, 721 

F.3d 875, 876 (7th Cir. 2013) (concluding that Alleyne

is not retroactive because Apprendi is not 

retroactive). Finally, every one of our sister 

circuits to consider the issue in a published decision 

has concluded that Alleyne is not retroactively 

applicable on collateral review. See United States v. 

Winkelman, 746 F.3d 134, 136 (3d Cir. 2014); In re 

Kemper, 735 F.3d 211, 212 (5th Cir. 2013); Simpson,

721 F.3d at 876.

Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285-86, (11th Cir. 

2014). Thus, even if Mickels could show that Alleyne recognized 

a new right that is applicable to his case, Alleyne does not 

apply to his case, as Alleyne does not apply retroactively.

Therefore, § 2255(f)(3) does not restart the statute of 

limitations in this case. For this reason, unless Mickels can 

demonstrate that he is entitled to equitable tolling, his motion

is due to be dismissed.

Equitable tolling applies to the statute of limitations set 

forth in 28 U.S.C. § 2255(f). Sandvik v. United States, 177 F.3d 

1269, 1271 (llth Cir. 1999); see also Holland v. Florida, 560 

U.S. 631, 130 S. Ct. 2549, 1777 L. Ed. 2d 130 (2010) (holding 

similar statute of limitations in 28 U.S.C. § 2244(d) is subject 

to equitable tolling). “[A] petitioner is entitled to equitable 

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tolling only if he shows (1) that he has been pursuing his rights 

diligently, and (2) that some extraordinary circumstance stood in 

his way.” Holland, 560 U.S. at 649 (internal quotation marks 

omitted); see also Sandvik, 177 F.3d at 1271. The diligence 

required is “reasonable diligence,” not “maximum feasible 

diligence,” see Holland, 560 U.S. at 653, and the extraordinary 

circumstance prong requires a causal connection between the 

circumstance and the late filing. San Martin v. McNeil, 633 F.3d 

1257, 1267 (11th Cir. 2011). Serious attorney misconduct, 

including acts of gross negligence and acts of outright willful 

deceit, can constitute “extraordinary circumstances” which would 

justify equitable tolling of a movant’s § 2255 motion. Downs v. 

McNeil, 520 F.3d 1311, 1323 (llth Cir. 2008); see also Holland, 

560 U.S. at 633 (holding that equitable tolling may be available 

in an “extraordinary” instance in which the conduct of a 

petitioner’s attorney constitutes more than “garden variety” or 

“excusable neglect”).

In this case, Mickels does not assert that he is entitled 

to equitable tolling of the statue of limitations. (Doc. 113).

Nor has he alleged or offered any facts that suggest that he has 

diligently pursued his rights, and that some extraordinary 

circumstance, beyond his control, stood in his way. While 

Mickels briefly mentions that he received ineffective assistance 

of counsel, he has proffered no facts that suggest, let alone 

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demonstrate, any acts by his attorney that prevented him from 

timely filing his § 2255 petition. The burden firmly rests with 

the petitioner to establish that he is entitled to the benefit of 

this extraordinary remedy. Drew v. Dep't of Corr., 297 F.3d 1278, 

1286 (11th Cir. 2002). See Jones v. United States, 304 F.3d 1035, 

1040 (11th Cir. 2002); Johnson v. Fla. Dep’t of Corr., 513 F.3d 

1328, 1333 (11th Cir. 2008) (“Johnson bears the burden of 

establishing equitable tolling.”), cert. denied sub nom., Johnson 

v. McNeil, 555 U.S. 851, 129 S. Ct. 348 (2008); Spottsville v. 

Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) (“The burden of 

establishing entitlement to this extraordinary remedy plainly 

rests with the petitioner[.]”) (quoting Wade v. Battle, 379 F.3d 

1254, 1265 (11th Cir. 2004)(internal quotations omitted)). 

Accordingly, Mickels is not entitled to equitable tolling of the 

statute of limitations.

Thus, because Respondent has asserted the defense of 

statute of limitations and Mickels has not established that his 

motion was timely filed and he has failed to meet his burden of 

establishing extraordinary circumstances which would justify the 

equitable tolling of the AEDPA’s limitation period, the 

undersigned finds that Mickels’ Motion to Vacate, Set Aside, or 

Correct Sentence under § 2255 should be DISMISSED as timebarred.

III. CERTIFICATE OF APPEALABILITY 

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Pursuant to Rule 11(a) of the Rules Governing § 2255 

Proceedings, the undersigned recommends that no certificate of 

appealability should be issued in this case. 28 U.S.C. foll. 

§ 2255, Rule 11(a) (“The district court must issue or deny a 

certificate of appealability when it enters a final order 

adverse to the applicant.”). The habeas corpus statute makes 

clear that an applicant is entitled to appeal a district court’s 

denial of his habeas corpus petition only where a circuit 

justice or judge issues a certificate of appealability. 28 

U.S.C. § 2253(c)(1). A certificate of appealability may issue 

only where “the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

Where a habeas petition is being denied on procedural grounds 

without reaching the merits of an underlying constitutional 

claim, “a COA should issue [only] when the prisoner shows . . . 

that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional 

right, and that jurists of reason would find it debatable 

whether the district court was correct in its procedural 

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Mickels’ claim does not warrant the issuance of a 

Certificate of Appealability in this case. For the reasons 

discussed above, Mickels’ claim was not timely filed. Under the 

circumstances, a reasonable jurist could not conclude that this 

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Court is in error in invoking this procedural bar with respect 

to his claims. See Slack, 529 U.S. at 484. (“Where a plain 

procedural bar is present and the district court is correct to 

invoke it to dispose of the case, a reasonable jurist could not 

conclude either that the district court erred in dismissing the 

petition or that the petitioner should be allowed to proceed 

further.”). It is thus recommended that the Court deny any 

request for a Certificate of Appealability.

IV. CONCLUSION

For the foregoing reasons, it is recommended that the 

Respondent’s Motion to Dismiss be GRANTED (Doc. 120), that 

Petitioner’s § 2255 Motion to Vacate, Set Aside, or Correct 

Sentence (Doc. 113), be DISMISSED as time-barred and that 

judgment be entered in favor of Respondent, the United States of 

America, and against Petitioner, Terrell Mickels. The 

Undersigned Magistrate Judge further finds that Mickels is not 

entitled to the issuance of a Certificate of Appealability and 

as a result, he should not be permitted to appeal in forma

pauperis. 

Notice of Right to File Objections

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

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(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. §

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “ [a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice. ” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judges report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 11th day of June, 2015.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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