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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES EDWARD LEE, : 

 Petitioner, : 

 CIVIL ACTION 15-0034-CG-M

v. : 

 CRIMINAL ACTION 11-00371-CG-M

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. This 

action was referred to the undersigned Magistrate Judge for 

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

Rule 8(b) of the Rules Governing Section 2255 Cases. It is now 

ready for consideration. The record is adequate to dispose of 

this matter; no evidentiary hearing is required. It is 

recommended that Petitioner’s Motion to Vacate (Doc. 106) be 

denied, that this action be dismissed, and that judgment be 

entered in favor of Respondent, the United States of America, 

and against Petitioner James Edward Lee. It is further 

recommended that any certificate of appealability filed by 

Petitioner be denied as he is not entitled to appeal in forma 

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pauperis. 

Lee was indicted on December 28, 2011 for conspiracy to 

distribute cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. 

§ 2 and for being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1) (Doc. 1). On March 19, 2012, 

Lee entered into a plea agreement in which he admitted to being 

a felon in possession of a firearm (Doc. 58). On September 18, 

2012, United States District Court Judge Granade sentenced 

Petitioner to ninety-two months on the conviction as well as 

three years of supervised release following his release from 

prison and an assessment of one hundred dollars (Doc. 100). Lee 

did not appeal his conviction or sentence (Doc. 99).

Petitioner filed his Motion to Vacate, Set Aside, or 

Correct Sentence under 28 U.S.C. § 2255 on January 12, 2015 in 

which he raises the single claim that his sentence was too long 

based on the statute under which he was sentenced (Doc. 106). 

Respondent filed a response on March 5 (Doc. 108) to which 

Petitioner replied (Doc. 112).

Before taking up Lee’s claim, the Court notes that 

Respondent has answered the Petitioner, arguing that this 

petition should be dismissed as it was not filed within the oneyear statute of limitations period (Doc. 108, pp. 3-4). 

Respondent refers to provisions of the Anti-Terrorism and 

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Effective Death Penalty Act of 1996 (hereinafter AEDPA) which 

amended, in pertinent part, 28 U.S.C. § 2255. The specific 

provisions state as follows: 

A prisoner in custody under sentence of a 

court established by Act of Congress 

claiming the right to be released upon the 

ground that the sentence was imposed in 

violation of the Constitution or laws of the 

United States, or that the court was without 

jurisdiction to impose such sentence, or 

that the sentence was in excess of the 

maximum authorized by law, or is otherwise 

subject to collateral attack, may move the 

court which imposed the sentence to vacate, 

set aside or correct the sentence.

***

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 

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supporting the claim or claims 

presented could have been discovered 

through the exercise of due diligence.

28 U.S.C. § 2255(f). The AEDPA became effective on April 24, 

1996. Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 

1998). 

Since he did not file an appeal, Lee’s conviction became 

final on October 2, 2012, fourteen days after the entry of 

judgment. F.R.App.P. 4(b)(1)(A)(i) (“In a criminal case, a 

defendant’s notice of appeal must be filed in the district court 

within 14 days after [] the entry of either the judgment or the 

order being appealed”). The next day, the AEDPA clock began, 

running through October 2, 2013, the last day Petitioner could 

timely file this petition. This petition was filed on January 

12, 2015.

 Lee has stated that he did not file his action sooner 

because he did not know his options, laying the blame at his 

attorney’s feet (Doc. 112). The Court notes that there is no 

constitutional right to counsel on collateral review of a 

conviction, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), so 

there is no right to effective assistance of counsel on 

collateral review, Wainwright v. Torna, 455 U.S. 586, 587-88 

(1982), and such ineffective assistance does not excuse Lee’s 

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filing this action too late. Toles v. Jones, 888 F.2d 95, 99-

100 (11th Cir. 1989), cert. denied, 506 U.S. 834 (1992); Coleman 

v. Thompson, 501 U.S. 722, 752 (1991). 

 Nevertheless, the Court will treat Lee’s reply as a request 

to consider this petition to have equitably tolled the statute. 

Under Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 

1999), cert. denied, 531 U.S. 971 (2000), “[e]quitable tolling 

is appropriate when a movant untimely files because of 

extraordinary circumstances that are both beyond his control and 

unavoidable even with diligence.” Petitioner has not 

demonstrated any extraordinary circumstances; he has certainly 

not been diligent in the filing of this action as it comes more 

than fifteen months too late. The Court finds that Petitioner 

has not demonstrated any basis for finding that he has equitably 

tolled the statute. 

 Lee has raised a single claim in this petition. However, 

his petition was filed too late and is due to be dismissed under 

AEDPA. Therefore, it is recommended that the petition be denied

and that this action be dismissed.

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2255 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) be denied. 28 U.S.C. foll. § 

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

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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 petition only where a circuit justice or judge 

issues a COA. 28 U.S.C. § 2253(c)(1). A COA 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 denied on procedural grounds, “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). As Lee has not filed this action in a 

timely manner, a reasonable jurist could not conclude that this 

Court errs in dismissing this petition or that he should be 

allowed to proceed further. 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”). 

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CONCLUSION

It is recommended that Petitioner’s Motion to Vacate filed 

pursuant to 28 U.S.C. § 2254 be denied (Doc. 106). It is 

further recommended that any certificate of appealability filed 

by Petitioner be denied as he is not entitled to appeal in forma 

pauperis. Finally, it is recommended that judgment be entered 

in favor of Respondent, the United States of America, and 

against Petitioner James Edward Lee.

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 

(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 

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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 Judge’s 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 7th day of May, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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