IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHRISTIAN ROBINSON, :

Petitioner, :

vs. : CIVIL ACTION NO. 10-0104-CG-C

UNITED STATES OF : CRIMINAL ACTION NO. 07-0270-CG

AMERICA, 

:

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Christian Robinson, a federal prison inmate proceeding pro

se, has filed a motion to vacate, set aside or correct his sentence pursuant to 28

U.S.C. § 2255 (Doc. 25). 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).

It is recommended that Robinson’s § 2255 motion be dismissed as time-barred

pursuant to 28 U.S.C. § 2255(f).

FINDINGS OF FACT

1. On October 24, 2007, Robinson entered a counseled guilty plea

to the sole count of the indictment charging the offense of possession of a

firearm by a person convicted of a misdemeanor crime of domestic violence

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in violation of 18 U.S.C. § 922(g)(9). (Compare Doc. 15 (order on guilty plea)

with Doc. 1 (indictment)) Robinson was sentenced, on January 29, 2008, to

120 months imprisonment. (See Docket Sheet, Minute Entry for January 29,

2008) Judgment was entered by the Court on February 7, 2008. (Doc. 20) Four

(4) years of petitioner’s 120-month sentence was ordered to run concurrently

“with any custody sentence the defendant receives for attempted murder

in state court case (Mobile County) DC 2007-8590.” (Id. at 2) Robinson did

not appeal his conviction and sentence. (Doc. 25, at 1) In fact, on the same date

the Court entered its judgment, February 7, 2008, petitioner signed and filed,

through his appointed attorney, a notice of no appeal. (Doc. 19 (“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.”))

2. On May 21, 2009, petitioner filed a motion for extension of time

to file a § 2255 petition. (Doc. 22) United States District Judge Callie V. S.

Granade denied petitioner’s motion by endorsement on July 27, 2009. (Doc.

24) 

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Federal courts have no authority to extend the one-year

limitation period where no § 2255 petition has been filed, or to

treat a motion for extension of time as a substantive motion for

relief under 28 U.S.C. § 2255 where the motion does not contain

allegations sufficient to support a claim under § 2255. See Green

v. United States, 260 F.3d 78, 83 (2nd Cir. 2001); United States

v. Leon, 203 F.3d 162, 164 (2nd Cir. 2000).

(Id.)

3. Robinson filed the instant motion to vacate, pursuant to 28

U.S.C. § 2255, on February 23, 2010. (Doc. 25, at 6 (motion executed on

February 23, 2010)) Within the context of this motion, petitioner claims his

petition has been timely filed. (Id. at 3) 

Movant states for the record that the United States Court of the

[S]outhern District of Alabama appointed counsel never placed

Mr. Robinson on the proper notice to file an Appeal after the

Sentencing court had given the proper instruction under Rule

11.[] The movant assert the sixth amendment once it is attached

the attorney has a duty to advise him of the stage after the

defendant have been convicted to follow up on filing an Appeal.

However if the Attorney felt there were no merits to the

defendant case he was to file the proper motion with the Appeals

court in reference to an Anders Brief which would properly

removed him or her from the defendant case. Thereforth (sic)

the Movant have every right to file this motion as timely filed at

this time with this honorable court. A defendant cannot be

denied access to court w[h]ere relief is warrant set by the record

shown.

(Id.)

CONCLUSIONS OF LAW

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1. Rule 4 of the Rules Governing Section 2255 Cases provides, in

pertinent part, that “[i]f it plainly appears from the motion, any attached

exhibits, and the record of prior proceedings that the moving party is not

entitled to relief, the judge must dismiss the motion and direct the clerk to

notify the moving party.” 28 U.S.C. foll. § 2255, Rule 4(b). Because this rule

is all but identical to its § 2254, see 28 U.S.C. foll. § 2254, Rule 4, it is clear

that a district court has the authority under this rule to dismiss frivolous habeas

petitions prior to any answer by the United States. 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 Day v. Crosby, 391 F.3d

1192, 1194 & 1195 (11th Cir. 2004) (“The critical difference between the

ordinary civil case and a habeas case involves Rule 4 of the Rules Governing

Section 2254 cases. . . . The Fifth, Fourth, and Second Circuits have concluded

that ‘[t]his rule differentiates habeas cases from other civil cases with respect

to sua sponte consideration of affirmative defenses.’ . . . The Advisory

Committee Notes to Rule 4 state that a federal district court has ‘the duty . . .

to screen out frivolous applications.’ . . . A concession of timeliness by the

state that is patently erroneous does not compromise the authority of a district

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court sua sponte to dismiss a habeas petition as untimely, under AEDPA.”),

judgment aff’d sub nom. Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675,

164 L.Ed.2d 376 (2006); 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.”); Emerson v.

United States, 2004 WL 743914, *1 (N.D. Tex. 2004) (“Respondent United

States of America [] has not filed an answer, but the Court has reviewed

Emerson’s pleadings and finds that his petition should be denied. See Rule 4

of the Rules Governing Section 2254 Cases . . . and Rule 4(b)[,] Rules

Governing Section 2255 Proceedings[.]”), cert. denied, 541 U.S. 1081, 124

S.Ct. 2435, 158 L.Ed.2d 996 (2004); United States v. Gray, 1996 WL 228461,

*16 (N.D. Fla. 1996) (“Finally, Judge Coffin noted [in concurring in part and

dissenting in part in United States v. Quin, 836 F.2d 654, 658-659 (1st Cir.

1988)] that federal courts are not helpless to manage frivolous habeas or postconviction petitions. Patently frivolous claims may be dismissed summarily

without answer by the Government.”).

2. The Anti-Terrorism and Effective Death Penalty Act of 1996

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

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a new subdivision to 28 U.S.C. § 2255 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).

(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

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).

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

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1 Petitioner’s May 21, 2009 motion for an extension of time to file his § 2255

petition (Doc. 22), in fact, was filed after his one-year limitations period had expired.

7

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

calculated under § 2255(f)(1) based upon the date on which his conviction

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

February 7, 2008. Because petitioner did not appeal his conviction or sentence,

the judgment of conviction became final on February 19, 2008, ten days after

it was entered (excluding the relevant intervening Sunday and holiday).

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 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,

supra, Robinson had until February 19, 2009 to timely file a collateral attack

pursuant to § 2255. Because petitioner did not file his § 2255 motion until

February 23, 2010 (see Doc. 25, at 6),1

 more than a year after his one-year

limitation period expired, this Court cannot reach the merits of petitioner’s

claims unless he is entitled to equitable tolling. 

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

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movant untimely files because of extraordinary circumstances that are both

beyond his 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 his 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, 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 his 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

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‘”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.’”). 

5. In this case, petitioner has not established that the instant habeas

corpus petition was timely filed nor has he established that extraordinary

circumstances and due diligence counsel equitable tolling of the limitations

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 fact, petitioner makes no conventional equitable

tolling argument but instead contends he has “every right to file this motion as

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timely filed at this time” because his trial attorney failed to file written notice

of appeal or place him on “proper notice to file an Appeal after the Sentencing

court had given the proper instruction under Rule 11.” (Doc. 25, at 3) While

this argument does not begin to explain why Robinson did not file the instant

attack in a timely manner and serves only to underscore the undersigned’s

ultimate determination that petitioner’s own lack of due diligence, ultimately,

is responsible for the untimeliness of the filing of the instant § 2255 petition,

it also wholly ignores his specific written acknowledgment after consultation

with his attorney, on February 7, 2008, that he did not desire to take an appeal

from his conviction and sentence (see Doc. 19). Accordingly, in the

undersigned’s opinion this is 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 v. Allen, 548 F.3d

993, 1001 (11th Cir. 2008) (“We have emphasized that ‘[e]quitable tolling is

an extraordinary remedy that must be applied sparingly’ for ‘[a] truly extreme

case.’”), cert. denied, U.S. , 130 S.Ct. 254, 175 L.Ed.2d 173 (2009).

6. 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

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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. § 2243(c)(2). Where, as here, a habeas petition is being

denied on procedural grounds without reaching the merits of the underlying

constitutional claims, “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, 120 S.Ct. 1595, 1604, 146

L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct.

1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a

petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were “adequate to deserve encouragement

to proceed further.”’”). Inasmuch as a district court can raise sua sponte the

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AEDPA statute of limitations, see Jackson v. Secretary for the Dept. of

Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002), within the context of Rule

4, see Johnson v. Chase, 2006 WL 2949442, *1 (S.D. Ga. 2006) (“Federal

district courts are empowered pursuant to Rule 4 to raise the AEDPA’s statute

of limitation sua sponte and dismiss those actions that are time barred.”), a

reasonable jurist could not conclude either that this Court is in error in

dismissing the instant petition or that Robinson should be allowed to proceed

further, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 (“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.”). 

CONCLUSION

The Magistrate Judge recommends that the instant petition be dismissed

as time-barred pursuant to 28 U.S.C. § 2255(f). Petitioner is not entitled to a

certificate of appealability and, therefore, he is not entitled to appeal in forma

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pauperis.

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 3rd day of March, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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2 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). 

14

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 days2

 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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