1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

UNITED STATES OF AMERICA, ) 

) CIVIL ACTION NO. 10-0280-KD 

v. ) 

) CRIMINAL ACTION NO. 05-267-KD-N 

JAMES PATRICK PREYEAR, ) 

) 

Defendant/Petitioner. ) 

 REPORT AND RECOMMENDATION

 Petitioner, James Preyear, has filed a Motion to Vacate, Set Aside or Correct Sentence (doc. 

569) pursuant to 28 U.S.C. § 2255. This matter has been referred to the undersigned pursuant to 28 

U.S.C. § 636 for preliminary proceedings and for preparation of a Report and Recommendation 

concerning the disposition of the Motion. Because the record indicated that the Motion was filed 

more than one year after the petitioner’s conviction and sentence became final, by order (doc. 571) 

dated June 3, 2010, the undersigned sua sponte1 raised the issue of the one-year statute of limitations 

found in 28 U.S.C. § 2244(d)(1), and allowed petitioner an opportunity to address that issue. 

Petitioner filed a timely Response (doc. 575). 

 

1 Rule 4 of the Rules Governing Section 2255 Cases provides, in pertinent part: “If it plainly appears from the face of the 

petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make 

an order for its summary dismissal and cause the petitioner to be notified.” Thus, a district court has the authority under 

this rule to dismiss frivolous habeas petitions prior to any answer by the United States. See Acosta v. Artuz, 221 F.3d 

117, 123 (2nd Cir.2000) (“[T]he authority to raise [ ] procedural defenses sua sponte is consistent with the authority 

provided to the district courts in 2254 Habeas Rule 4 and 2255 Habeas Rule 4(b).”); see also Day v. McDonough, 547 

U.S. 198, 209, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006) ( “[W]e hold that district courts are permitted, but not 

obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.”); Kiser v. Johnson, 163 F.3d 326, 

328 (5th Cir.1999) (finding that a district court has the power under Rule 4 of the Rules Governing Section 2254 Cases 

“to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state.”). 

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The Anti-Terrorism and Effective Death Penalty Act of 1996, ' 101(Supp. II 1997) 

(AAEDPA@), which became effective on April 24, 1996, provides that a petitioner has one year from 

Athe date on which the judgment became final by the conclusion of direct review or the expiration of 

the time for seeking such review@ to file a federal habeas corpus petition. 28 U.S.C. '

2244(d)(1)(A).2

 He filed a direct appeal of his conviction and sentence, which was denied by the 

Eleventh Circuit as set forth in the mandate, issued January 18, 2008. Preyear did not Petition the 

Supreme Court for Writ of Certiorari within the 90 days allowed by Rule 13 of the Rules of the 

Supreme Court,3 so his conviction became final on April 17, 2008. The habeas Motion was filed on 

June 1, 2010, and recites that it was signed on May 21, 2010; that latter date is the earliest date on 

which it could have been presented to prison authorities for mailing. 

 As noted in the prior order, petitioner’s Motion appears to assert that, because his sentence 

was modified under 18 U.S.C. § 3582(c)(2), (doc. 535) his one-year period should be restarted from 

the date that order was entered, August 4, 2009. While petitioner has not renewed that argument in 

responding to the statute of limitations issue, the undersigned nonetheless addresses that claim. As 

previously explained in the court’s order of June 3, 2010, 

 “[a] sentencing adjustment undertaken pursuant to Section 3582(c)(2) does not 

constitute a de novo resentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th 

Cir. 2000). Hence, a § 3582(c) sentence modification, whether granted or denied, 

does not restart the § 2255(f)(1) limitations period. 18 U.S.C. § 3582(b) 

(notwithstanding the fact that a sentence may be subject to modification under 

3582(c)(2), “a judgment of conviction that includes such a sentence constitutes a 

final judgment for all other purposes”); United States v. Dixon, 2009 WL 1559947 at 

*3 (E.D.Pa. June 3, 2009) (“a motion under § 3582(c)(2) does not affect the finality 

 2

 No other starting date described in that statute appears to be applicable. 

3 As discussed below, Preyear asserts that his attorney told him that he would file a Petition for Writ 

of Certiorari, but failed to do so. However, that alleged statement does not alter the date on which 

the Judgment became final. 

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of a sentence and judgment of conviction.... 18 U.S.C. § 3582(b) makes it absolutely 

clear that the finality of a judgment of conviction and sentence is not affected by the 

possibility that the sentence might be later modified.”); Gomez v. United States, 

2009 WL 1309338 at *2 (N.D.Tex. May 11, 2009) (order reducing sentence pursuant 

to § 3582(c)(2) “did not alter the date on which [the] judgment of conviction became 

final under § 2255(f)(1)”); cf. Peagler v. United States, 2009 WL 1383325 at *2 

(M.D.Ala. May 15, 2009) (applying same reasoning after grant of a Fed.R.Crim.P. 35 

motion). 

Johnson v. U.S., 2010 WL 724096 (S.D.Ga. March 2, 2010). 

 Petitioner argues that the limitations period should be subject to equitable tolling under 

the facts of his case. He asserts that his attorney told him that he would file a petition for writ of 

certiorari to the Supreme Court, but never did so, and that the delay while he thought that 

petition was pending is sufficient to equitably toll the limitations period. 

 The Supreme Court has recently held that the one-year limitations period of 28 U.S.C. 

§ 2244(d) is subject to equitable tolling. Holland v. Florida, ---U.S. ----, 130 S.Ct. 2549 (2010). 

In Holland, the Court held that “a petitioner is entitled to equitable tolling only if he shows (1) 

that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 

stood in his way and prevented timely filing.” Id. at ---, 130 S.Ct. at 2562 (internal quotations 

omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In so doing, the Court 

reversed the Eleventh Circuit’s per se application of its rule that attorney error, even if “grossly 

negligent,” may never warrant equitable tolling of AEDPA’s one-year limitation period.4

 

Holland, at ---, 130 S.Ct. 2563. The Court held that “the exercise of a court’s equitable powers 

... must be made on a case-by-case basis,” id. (quoting Baggett v. Bullitt, 377 U.S. 360, 375 

 

4 The Eleventh Circuit had held: “[w]e will assume that [petitioner’s attorney]’s alleged conduct is negligent, even 

grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer's standard of care-in 

the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the 

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(1964)), and that, while “a garden variety claim of excusable neglect ... does not warrant 

equitable tolling,” id. at ---, 130 S.Ct. at 2564 (quoting Irwin v. Dept. of Veterans Affairs, 498 

U.S. 89, 96 (1980)), some greater level of unprofessional attorney conduct may do so under the 

facts of a particular case. Id. Mere attorney negligence includes such matters as an attorney’s 

miscalculation of the limitations period. Id., at ---, 130 S.Ct. at 2564 (citing Lawrence v. Florida, 

549 U.S. 327, 336 (2007)). Further, the Court held that a petitioner is required to exercise 

reasonable diligence rather than maximum feasible diligence. Id. at ---, 130 S.Ct. at 2565. 

 Petitioner’s response lacks detail, particularly with regard to specific dates. Petitioner 

has thus failed to show when he learned that he had been wrong about when his 2255 motion 

was due. The details which are provided, however, do indicate that petitioner was not 

reasonably diligent once he discovered that no petition for writ of certiorari had been filed, and 

thus, that the limitations period for his habeas motion had already begun to run. As noted, 

Preyear’s conviction and sentence became final on April 17, 2008. He states that, at some 

unspecified time, he contacted one of the inmates who assisted other inmates with legal matters 

and “requested advice” from him. Response (doc. 575) at 1. The inmate advised Preyear to 

contact his appellate counsel, Mr. Dumas, concerning the status of his certiorari petition and 

“advised petitioner of AEDPA’s statute of limitation and immediately wrote several letters to 

Dumas.” Id. 

 Petitioner has attached copies of a letter to Attorney Dumas and of a letter to the Clerk of 

the U.S. Supreme Court as exhibits to his response. The letters are dated April 22, 2009, and 

 lawyer's part-can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.” 

Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008). This standard was found to be too strict. 

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April 28, 2009, respectively. Contrary to petitioner’s argument, however, the letter to Mr. 

Dumas does not mention the petition for writ of certiorari. Regardless, he has also attached a 

copy of the letter he received from the Supreme Court, dated May 6, 2009, which states that no 

petition for writ of certiorari had been filed on his behalf. While serious questions remain 

concerning Preyear’s knowledge and diligence prior to that date, it is unquestionable that, within 

a short period of time after May 6, 2009, he was actually aware that there was no delay in the 

running of the limitations period due to the pendency of such a petition before the Supreme 

Court. 

 Despite this knowledge, petitioner did not complete and mail his § 2255 motion until 

May 21, 2010, approximately one full year after learning that the time had run on April 17, 2009. 

 Once he learned that the limitations period had run, Preyear did not file his petition within a 

reasonable time. Presuming, without deciding, that an alleged error by Preyear’s appellate 

counsel was sufficient to trigger equitable tolling5, and further presuming at this stage of the 

proceedings that every factual assertion made by Preyear in his Response is true, a one-year 

delay following notice fails to satisfy the diligence requirement for equitable tolling. See Felton 

v. Florida, 153 Fed.Appx. 620, 621 (11th Cir. 2005) (“Despite this notice, Felton did not file his 

federal habeas petition until some 147 days later. Thus, even if the court's failure to issue a 

mandate is deemed extraordinary (and we do not think it is), Felton's 147-day delay forecloses a 

finding that he exercised the required due diligence.”) 

 

5

 In Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002), the Eleventh Circuit affirmed the application of equitable tolling 

because the petitioner did not learn of the denial of his state habeas application for eighteen months. Id. at 711. The court 

reasoned that the state court's shortcomings were “certainly beyond [the petitioner's] control,” and because of his 

subsequent diligence, he was entitled to equitable tolling. Id. 

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 Preyear also claims that some portion of his delay was excusable because it resulted from 

the death of the inmate who had helped him contact the Clerk of the Supreme Court. That 

inmate legal assistant died in July of 2009. Petitioner had no constitutional right to 

representation in preparing his habeas motion. See e.g. Coleman v. Thompson, 501 U.S. 722, 

757 (1991); Saunders v. U.S., Slip Copy, 2010 WL 2180543, *5 (11th Cir. June 2, 2010). If the 

lack of professional legal representation does not excuse timely filing, the loss of 

nonprofessional assistance clearly can not do so. Regardless, the lengthy delay following actual 

notice of the need to file his petition can not be attributed to whatever brief lack of assistance 

may have resulted. 

Further, given the lengthy delay and clear lack of diligence, there is no non-frivolous basis 

for an appeal of this ruling. Pursuant to the changes to Rule 11 of the Rules Governing Section 2255 

Proceedings which became effective December 1, 2009, the court addresses the appealability of the 

recommended denial of plaintiff=s habeas petition. AA [COA] may issue only if the applicant has 

made a substantial showing of the denial of a constitutional right.@ Id. at ' 2253(c)(2). To make such 

a showing, a defendant Amust demonstrate that reasonable jurists would find the district court=s 

assessment of the constitutional claims debatable or wrong,@ Tennard v. Dretke, 542 U.S. 274, 282, 

124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 

1595, 146 L.Ed.2d 542 (2000)), or that Athe issues presented were >adequate to deserve 

encouragement to proceed further,= @ Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 

154 L.Ed.2d 931 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 

L.Ed.2d 1090 (1983)). 

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Additionally, the undersigned here addresses the related issue of whether any appeal of an 

order adopting this Report and Recommendation and denying habeas relief may be brought in forma 

pauperis. An appeal may not be taken in forma pauperis if the trial court certifies in writing that the 

appeal is not taken in good faith. 28 U.S.C. ' 1915(a)(3); see Fed.R.App. P. 24(a)(3)(A); Lee v. 

Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding that Agood faith@ is Aan objective concept@

and that Anot taken in good faith@ is Aa synonym for frivolous@); DeSantis v. United Techs, Corp., 15 

F.Supp.2d 1285, 1288-89 (M.D.Fla.1998) (stating that good faith Amust be judged by an objective, 

not a subjective, standard@ and that an appellant Ademonstrates good faith when he seeks appellate 

review of any issue that is not frivolous@). An appeal filed in forma pauperis is frivolous if Ait 

appears that the Plaintiff has little to no chance of success,@ meaning that the Afactual allegations are 

clearly baseless or that the legal theories are indisputably meritless.@ Carroll v. Gross, 984 F.2d 392, 

393 (11th Cir. 1993). For the foregoing reasons, the undersigned recommends that the court find no 

possible good faith basis for appeal of the denial of the petitioner’s habeas claims, and thus that no 

appeal of such a ruling may be brought in forma pauperis. 

 Accordingly, it is hereby RECOMMENDED that petitioner’s Motion to Vacate, Set 

Aside or Correct Sentence (doc. 569) be DISMISSED as untimely filed; that a certificate of 

appealability not be granted; and that any motion which petitioner may file seeking leave to 

appeal this ruling in forma pauperis be denied. The attached sheet contains important 

information regarding objections to the Report and Recommendation. 

DONE this the 22nd day of September, 2010. 

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE=S EXPLANATION OF PROCEDURAL RIGHTS 

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT 

1. 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 

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 

AStatement of Objection to Magistrate Judge=s Recommendation@ within ten [now 

fourteen] days 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. 

(Emphasis added) 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 

action 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. 

 /s/ Katherine P. Nelson 

 UNITED STATES MAGISTRATE JUDGE 

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