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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILMER ALONZO STANLEY HINDS, : 

 Petitioner, : 

 CIVIL ACTION 12-0462-KD-M

v. : 

 CRIMINAL ACTION 08-00135-KD-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 (Doc. 91) 

and Respondent’s Motion to Dismiss (Doc. 93). 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 Respondent’s Motion to Dismiss (Doc. 93) be granted, that 

Petitioner’s Motion to Vacate (Doc. 91) be denied, that this 

action be dismissed, and that judgment be entered in favor of 

Respondent, the United States of America, and against Petitioner 

Wilmer Alonzo Stanley Hinds. It is further recommended that, 

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should Petitioner file a certificate of appealability, it be 

denied as he is not entitled to appeal in forma pauperis.

Hinds was indicted on April 25, 2008 for conspiracy to 

distribute cocaine in violation of 21 U.S.C. § 846 (Doc. 17). 

On June 20, 2008, Petitioner entered into an agreement 

(hereinafter Agreement) in which he pled guilty to the single 

charge against him (Doc. 28, ¶ 2). In the Agreement, Hinds 

stated that he had freely and voluntarily entered into it with 

the advice of counsel (Doc. 28, ¶¶ 6, 9). On October 9, 2008, 

United States District Judge DuBose sentenced Petitioner to 120

months on the conviction as well as five years of supervised 

release following his release from prison, and an assessment of 

one hundred dollars (Doc. 48). The Judgment was entered onto 

the docket of the Court on October 24, 2008 (Doc. 48).

On September 24, 2010, Hinds filed a Notice of Appeal (Doc. 

65). On February 28, 2012, the United States Court of Appeals 

for the Eleventh Circuit dismissed the appeal as untimely (Doc. 

90). 

Petitioner filed his Motion to Vacate, Set Aside, or 

Correct Sentence under 28 U.S.C. § 2255 on July 11, 20121 in 

which he raised the following claims: (1) His sentence was 

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Error! Main Document Only.Under the “mailbox rule,” the date a 

prisoner delivers a § 2255 petition to prison authorities is deemed to 

be the date it was filed with the court. See Washington v. United 

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illegal because he is actually innocent of allegations that he 

threatened his codefendant; (2) his codefendant’s testimony was 

fraudulent, rendering the judgment void; and (3) he was denied 

his right to effective assistance of counsel (Doc. 91). 

Respondent filed a Motion to Dismiss on August 22, 2012 (Doc. 

93) to which Petitioner replied (Doc. 95).

Before taking up Hinds’s claims, the Court notes that 

Respondent argues that this action should be dismissed as it was

not filed within the one-year statute of limitations period 

(Doc. 93, pp. 2-3). Respondent refers to provisions of the 

Anti-Terrorism and Effective Death Penalty Act of 1996 

(hereinafter AEDPA) which amended, in pertinent part, 28 U.S.C. 

§ 2255. The specific provisions state as follows: 

 States, 243 F.3d 1299, 1301 (11th Cir. 2001). 

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 

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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). 

 Petitioner’s conviction became final on November 7, 2008, 

fourteen days after judgment was entered onto the Court’s docket 

on October 24, 2008. Fed.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”). That means that on 

November 8, 2008, the AEDPA limitations clock began to run and 

that Hinds’s § 2255 petition should have been filed no later 

than November 7, 2009. Petitioner’s Motion to Vacate was filed 

on July 11, 2012 (Doc. 91), two years and eight months too late.

 The Court finds that it is of no moment that Hinds filed an 

appeal, albeit late. If filing a late appeal stopped the 

limitations clock from running, AEDPA would have no meaning as a 

criminal defendant could file an appeal at any time in an effort 

to stop the clock so that a § 2255 action would be considered to 

be timely filed. See United States v. Black, 2006 WL 2547339, 

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*3 (M.D. Ala. 2006).

However, 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.” 

Hinds has asserted that this action should be considered to 

have equitably tolled the statute as his delay was due to false 

hope and promises given him by the prosecutor and defense 

counsel (Doc. 95, p. 2). Petitioner has also asserted that his 

co-defendant has admitted that Hinds did not threaten him with a 

gun and that this information should pave the way for him to be 

resentenced as this is “newly discovered evidence” (Doc. 95, pp. 

3-4, 17-20).

The Court finds no merit in Petitioner’s assertions. Hinds 

has not demonstrated that his attorney and the prosecutor misled 

him in any way. More to the point, though, only Petitioner can 

be held responsible for the late filing of this action as there 

is no constitutional right to counsel on collateral review. 

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never 

held that prisoners have a constitutional right to counsel when 

mounting collateral attacks upon their convictions”). 

As far as the “newly discovered evidence,” even were the 

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Court to find that this was new evidence—and it does not make 

that finding—the letter which forms the basis for this claim was 

dated December 6, 2010 (Doc. 95, pp. 17-18). Petitioner still 

waited more than twenty months before filing this action after 

“discovering” this new evidence; this, too, fails to satisfy the 

requirements of AEDPA.

After considering the arguments and evidence submitted, the 

Court finds that Petitioner has not demonstrated any 

extraordinary circumstances; he has certainly not been diligent 

in the filing of this action as it comes more than two and onehalf years too late. The Court finds that Petitioner has not 

demonstrated any basis for finding that he has equitably tolled 

the statute. 

In summary, Hinds has raised three claims in this petition, 

but the Court has not considered them as this action is timebarred under AEDPA. Therefore, it is recommended that 

Respondent’s Motion to Dismiss (Doc. 93) be granted, that 

Petitioner’s Motion to Vacate (Doc. 91) be denied as timebarred, that this action be dismissed, and that judgment be 

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

and against Petitioner Wilmer Alonzo Stanley Hinds.

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

§ 2255 Cases, the undersigned recommends that a certificate of 

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appealability (hereinafter COA) 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 habeas corpus 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 being 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 Hinds did not file this action in a timely manner, a 

reasonable jurist could not conclude either that this Court is 

in error in dismissing the instant petition or that Petitioner 

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 

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in dismissing the petition or that the petitioner should be 

allowed to proceed further”). 

CONCLUSION

It is recommended that Hinds’s petition for writ of habeas 

corpus, filed pursuant to 28 U.S.C. § 2255, be denied. It is 

further recommended that, should Petitioner file a certificate 

of appealability, it be denied as he is not entitled to appeal 

in forma pauperis.

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 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 “Statement of Objection to Magistrate Judge’s 

Recommendation” within fourteen days after being 

served with a copy of the recommendation, unless a 

different time is established by order. The statement 

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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 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.

DONE this 21st day of September, 2012.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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