IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRY ANN FREDRIKSEN, :

Petitioner. :

vs. : CA 09-0342-KD

UNITED STATES OF AMERICA, : CR 07-0391-KD

Respondent. :

REPORT AND RECOMMENDATION

Petitioner, a federal prison inmate proceeding pro se, has filed a

motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. §

2255 (Doc. 48). This action has been referred to the undersigned for entry

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

After consideration, it is recommended that Fredriksen’s § 2255 motion be

dismissed as time-barred pursuant to 28 U.S.C. § 2255(f). It is also

determined that Petitioner is not entitled to a certificate of appealability. 

I. Factual Background/Procedural History

On January 28, 2008, Fredriksen entered a counseled guilty plea to

Count 1 of the superseding indictment, or conspiracy to possess with the

intent to distribute methamphetamine. (Doc. 30, p. 1.) Counts 2, 3, 4, 5, and

6 were dismissed on motion of the United States. (Doc. 45, p. 1.) 

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 The Judgment was executed on April 18, 2008 and entered into the Court record on

May 1, 2008. (See Doc. 45.)

2

 Following Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (per

curiam), the date a prisoner presents a filing to prison authorities for mailing must be deemed the

date of filing with the Court. See also Adams v. U.S., 173 F.3d 1339, 1341 (11th Cir. 1999)

(stating that a “pro se prisoner's motion to vacate is deemed filed the date it is delivered to prison

authorities for mailing.”). 

2

Fredriksen was sentenced on April 18, 2008, to 135 months imprisonment.

(See Docket Sheet, Minute Entry for April 18, 2008.) Judgment was

entered by this Court (Doc. 45) on April 18, 2008,1

 and Petitioner filed a

Notice of Non-Appeal (Doc. 44) on April 22, 2008. The paragraph above

Fredriksen’s signature clearly states:

I have been advised by the Court and by my attorney of my

right to appeal my conviction and sentence. I have consulted

with my attorney, who has explained the advantages and

disadvantages of taking an appeal. I have had sufficient time

to consider my options and require no further explanation. 

After consideration, it is my desire to inform the Court that I

do not wish to take an appeal.

(Doc. 44, p. 1 (emphasis added).) Fredriksen accordingly did not file an

appeal. Therefore, this Court’s judgment became final ten days after May

1, 2008, or May 15, 2008, allowing for weekends and holidays. 

On June 4, 2009, Petitioner signed and dated her current § 2255

petition, which was then filed on June 15, 2009.2

 (Doc. 48, p. 6.) Therein,

Petitioner stated that she never received a downward departure for her

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cooperation with Assistant U.S. Attorney George May or the arresting

officers, that her confession was coerced, and that she was “sentenced for

all drugs in all counts,” despite the other counts being dismissed by the

government. (Id. at 4-5.) Nowhere in her § 2255 petition did Fredriksen

give any reasons for failing to file a timely motion to vacate her sentence.

On June 24, 2009, the government filed a Motion to Dismiss

Fredriksen’s § 2255 motion on the basis that it is barred by the one-year

statute of limitations set forth in 28 U.S.C. § 2255(f). (Doc. 50.) After

Fredriksen made no response to that motion, the undersigned entered a

show cause order on December 16, 2009, entreating Fredriksen to explain

why her petition should not be dismissed as a matter of law for being

clearly filed after the one-year statute of limitations found in 28 U.S.C. §

2255(f) without having established (or even attempted to establish) any

basis for equitable tolling. (Doc. 50, p. 2.) On December 30, 2009,

Petitioner responded to the undersigned via a letter (Doc. 52) stating that

she filed her motion untimely because “[she] was unaware that there was a

time limit or even a course of action to correct ineffective counsel.” (Doc.

52, p. 1.) Fredriksen further explains:

First I was sent to County Jail for the first 3 [months] of my

incarceration which had no law library [sic]. Then I was sent

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to Tallahassee, Fl. and [sic] they have a law library[,] but the

clerks are not allowed to give inmates any advice concerning

their cases, which left me just as ignorant as when I started. 

Then I was transferred to Waseca, [Minnesota,] and here we

do have a law library and people to advise us. As soon as I

was aware that there is [sic] a course of action to be taken, I

filed the [Motion to Vacate].

(Id.) 

II. Discussion.

A. The Motion to Vacate

The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) was enacted on April 24, 1996 and, pertinent to this case,

added a new subdivision to 28 U.S.C. § 2255, subdivision f, providing for a

one-year period of limitations within which federal prisoners must file their

motions to vacate pursuant to 28 U.S.C. § 2255. Akins v. United States, 204

F.3d 1086, 1089 (11th Cir.) (“On April 24, 1996, Section 105 of the

Antiterrorism and Effective Death Penalty Act . . . took effect. That section

amended 28 U.S.C. § 2255, establishing a one-year ‘period of limitation’

for motions filed pursuant to § 2255.”), cert. denied, 531 U.S. 971, 121

S.Ct. 410, 148 L.Ed.2d 316 (2000). That section reads: 

(f) 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

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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) 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).

Subsections (2), (3), and (4) of § 2255(f) clearly do not apply to

petitioner’s case and therefore, the timeliness of Fredriksen’s petition must

be calculated under § 2255(f)(1) based upon the date on which her

conviction became final. In this case, the Court entered judgment against

Fredriksen on May 1, 2008. Because Petitioner did not appeal her

conviction or sentence, the judgment of conviction became final on May 15,

2008, ten days after it was entered. Mederos v. United States, 218 F.3d

1252, 1253 (11th Cir. 2000) (“[T]he judgment of conviction became final

on February 2, 1998, ten days after it was entered.”); see Fed.R.App.P.

4(b)(1)(A) (“In a criminal case, a defendant’s notice of appeal must be filed

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in the district court within 10 days after the later of: (i) the entry of either

the judgment or the order being appealed; or (ii) the filing of the

government’s notice of appeal.”). Therefore, under Mederos, Fredriksen

had until May 15, 2009, to timely file a collateral attack pursuant to § 2255.

Because Petitioner did not file her § 2255 motion until June 4, 2009, twenty

days after her one-year limitation period expired, this Court cannot reach

the merits of Petitioner’s claim unless she is entitled to equitable tolling. 

“In the § 2255 context, equitable tolling ‘is appropriate when a

movant untimely files because of extraordinary circumstances that are both

beyond [her] control and unavoidable even with diligence.’ . . . ‘The

“extraordinary circumstances” standard applied in this circuit focuses on the

circumstances surrounding the late filing of the habeas petition, rather than

the circumstances surrounding the underlying conviction.’ . . . The

petitioner has the burden of proving entitlement to equitable tolling by

showing that ‘extraordinary circumstances that were both beyond [her]

control and unavoidable even with diligence’ prevented filing the petition

on time.” Jones v. United States, 304 F.3d 1035, 1039-1040 (11th Cir.

2002) (emphasis in original), cert. denied, 538 U.S. 947, 123 S.Ct. 1622,

155 L.Ed.2d 490 (2003); see also Johnson v. United States, 340 F.3d 1219,

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1226 (11th Cir. 2003) (“We have held that equitable tolling is appropriate

when a prisoner’s § 2255 petition is untimely because of extraordinary

circumstances that are both beyond [her] control and unavoidable even with

diligence. . . . We have emphasized, however, that equitable tolling applies

only in truly extraordinary circumstances. . . . Appellant bears the burden of

establishing that he is entitled to this extraordinary relief.”), aff’d, 544 U.S.

295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005); see Diaz v. Secretary for the

Dept. of Corrections, 362 F.3d 698, 700-701 (11th Cir. 2004) (“Equitable

tolling is to be applied when ‘”extraordinary circumstances” have worked to

prevent an otherwise diligent petitioner from timely filing his petition.’ . . .

Thus, the petitioner must show both extraordinary circumstances and due

diligence in order to be entitled to equitable tolling.”); Steed v. Head, 219

F.3d 1298, 1300 (11th Cir.2000) (“Section 2244 is a statute of limitations,

not a jurisdictional bar. Therefore, it permits equitable tolling ‘when a

movant untimely files because of extraordinary circumstances that are both

beyond his control and unavoidable even with diligence.’”). 

In this case, Petitioner has not established that the instant habeas

corpus petition was timely filed nor has she established that extraordinary

circumstances and due diligence counsel equitable tolling of the limitations

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period. Johnson, supra, 340 F.3d at 1226; Jones, supra, 304 F.3d at 1040;

see Johnson v. Florida Department of Corrections, 513 F.3d 1328, 1333

(11th Cir.) (“Johnson bears the burden of establishing equitable tolling.”),

cert. denied sub nom. Johnson v. McNeil, U.S. , 129 S.Ct. 348, 172

L.Ed.2d 86 (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[.]’”). In her response to the

undersigned’s show cause order of December 30, 2009, Petitioner stated

only that she was unaware of the one-year statute of limitations (Doc. 52)

and, therefore, the undersigned finds that this Court can make no

determination other than that petitioner’s own lack of due diligence,

ultimately, is responsible for the untimeliness of the filing of the instant §

2255 petition. This is simply not one of those rare cases in which principles

of equitable tolling can save petitioner from AEDPA’s one-year limitations

period. Johnson, supra, 340 F.3d at 1226; see also Melson, supra, 548 F.3d

at 1001 (“We have emphasized that ‘[e]quitable tolling is an extraordinary

remedy that must be applied sparingly’ for ‘[a] truly extreme case.’”). It is

perhaps important to remember, in this regard, that ignorance of the law

does not give rise to a proper argument for equitable tolling. U.S. v.

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Caldwell, 2007 WL 625913, *3 (M.D.Ala.) (citing Felder v. Johnson, 204

F.3d 168, 171-73 (5th Cir. 2000) as holding that “ignorance of the law does

not amount to an extraordinary circumstance excusing the late filing of a

habeas corpus petition.”).

B. The Certificate of Appealability

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

the undersigned recommends that a certificate of appealability in this case

be denied. 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 or her 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. § 2243(c)(2). Where, as here, 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

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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, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (emphasis added). 

Because, as previously established, Fredriksen’s § 2255 petition was

presented outside of § 2255(f)’s one-year statute of limitations without any

argument for equitable tolling, reasonable jurists could not disagree with the

undersigned’s straightforward application of the statute of limitations as

barring Petitioner’s current action.

III. Conclusion.

For the foregoing reasons, it is the undersigned’s recommendation

that the instant petition be DISMISSED as time-barred pursuant to 28

U.S.C. § 2255(f) and further, that Petitioner not be granted a certificate of

appealability.

The instructions which follow the undersigned’s signature contain

important information regarding objections to the report and

recommendation of the Magistrate Judge.

DONE this the 8th day of February, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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3 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

11

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

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

objections with the Clerk of this court. Failure to do so will bar a de novo determination

by the district judge of anything in the recommendation and will bar an attack, on appeal,

of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v.

Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

Unit B, 1982)(en banc). The procedure for challenging the findings and

recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4

(June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. §

636(b)(1)(A), by filing a ‘Statement of Objection to Magistrate Judge’s

Recommendation’ within ten days3

 after being served with a copy of the

recommendation, unless a different time is established by order. The

statement of objection shall specify those portions of the

recommendation to which objection is made and the basis for the

objection. The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be reviewed de novo

and a different disposition made. It is insufficient to submit only a copy

of the original brief submitted to the magistrate judge, although a copy of

the original brief may be submitted or referred to and incorporated into

the brief in support of the objection. Failure to submit a brief in support

of the objection may be deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28

U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and

original records in this case are adequate for purposes of review. Any party planning to

object to this recommendation, but unable to pay the fee for a transcript, is advised that a

judicial determination that transcription is necessary is required before the United States

will pay the cost of the transcript.

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