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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TODD JEFFERY GATES, : 

 Petitioner, : 

 CIVIL ACTION 12-0330-KD-M

v. : 

 CRIMINAL ACTION 10-00026-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. 98) 

and Respondent’s Motion to Dismiss (Doc. 102). 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. 102) be granted, that 

Petitioner’s Motion to Vacate (Doc. 98) be denied, that this 

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

Respondent, the United States of America, and against Petitioner 

Todd Jeffery Gates. It is further recommended that, should 

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Petitioner file a certificate of appealability, it be denied as 

he is not entitled to appeal in forma pauperis.

Gates was indicted on February 24, 2010 for the following: 

conspiring to manufacture methamphetamine in violation of 21 

U.S.C. § 846 (count one); manufacturing methamphetamine in 

violation of 21 U.S.C. § 841(a)(1) (count two); possessing with 

the intent to distribute methamphetamine in violation of 21 

U.S.C. § 841(a)(1) (counts three and seven); possessing with the 

intent to distribute Dimethoxy-4isopropylthiothemethylamine in 

violation of 21 U.S.C. § 841(a)(1) (count four); and using and 

carrying a firearm while committing a drug trafficking crime in 

violation of 18 U.S.C. § 924(c)(1) (count six); the Government 

also sought forfeiture of six different weapons (count eight) 

(Doc. 1). On June 11, 2010, Petitioner entered into a plea 

agreement in which he admitted that he was guilty of committing

counts one and six of the indictment (Doc. 39). Three days 

later, United States District Court Judge Kristi DuBose accepted 

the plea and found Gates guilty as charged (Doc. 43). On March 

2, 2011, Judge DuBose sentenced Petitioner to 97 months as to 

count one and sixty months as to count six as well as four years 

of supervised release on count one and three years on count six, 

to be served concurrently, following his release from prison, 

and an assessment of two hundred dollars (Doc. 96). On March 4, 

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2011, Gates filed a Notice of Non-Appeal (Doc. 93). On March 

29, 2011, the judgment entered against Petitioner was entered 

onto the docket of this action (see Doc. 96).

On May 14, 2012, Petitioner filed his Motion to Vacate, Set 

Aside, or Correct Sentence under 28 U.S.C. § 2255 in which he 

raised the following claims: (1) Gates did not knowingly and 

voluntarily enter into his plea agreement; (2) his attorney 

rendered ineffective assistance of counsel; and (3) the weapons 

charge did not apply in his case (Doc. 98). On June 19, 2012, 

Respondent filed a Motion to Dismiss (Doc. 102) to which 

Petitioner has replied (Doc. 104).

In its Motion to Dismiss (Doc. 102), Respondent has 

asserted that Petitioner’s claims should be dismissed as his 

petition was not filed within the one-year statute of 

limitations period (Doc. 102). Respondent refers to provisions 

of the Anti-Terrorism and Effective Death Penalty Act of 1996 

(hereinafter AEDPA) that 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 

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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 

supporting the claim or claims 

presented could have been discovered 

through the exercise of due diligence.

28 U.S.C. § 2255(f). 

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

final on April 12, 2011, fourteen days after the entry of 

judgment. 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 

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

order being appealed”). Though this action was not docketed in 

this Court until May 14, 2012, Petitioner executed his § 2255 

petition on May 1, 2012 (Doc. 98, p. 6).1 Under AEDPA, 

Petitioner should have filed this action no later than April 12, 

2012.

Gates has argued that this action is timely as he 

“submitted his petition within the one year time frame as to 

when the Petitioner received notice of his final judgment” (Doc. 

104, p. 1). Petitioner also asserts that the Court’s failure to 

consider his claims would result in a fundamental miscarriage of 

justice (Doc. 104, p. 2).

The Court understands Gates’s assertion to be a plea for a 

finding that he has equitably tolled AEDPA. 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 asserted that any delay in filing this

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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 States, 243 F.3d 1299, 1301 

(11th Cir. 2001).

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action is a result of his having been held in State Court for 

prosecution following the entry of judgment in this action (Doc. 

104). He also cites the lack of legal resources during the time 

he was awaiting his state criminal trial. Id. Gates has also 

asserted that his tardiness was due to ineffective assistance of 

counsel. Id. 

The Court finds that Petitioner has failed to prove any of 

the reasons asserted for his tardiness: the delayed notice to 

him that judgment had been entered, the State Court prosecution, 

the lack of resources, or the ineffectiveness of his counsel. 

The Court further finds that Gates has not demonstrated any 

extraordinary circumstances in the tardy filing of this action; 

likewise, there has been no showing that any miscarriage of 

justice will be visited upon Petitioner if this Court does not 

consider his claims. The Court finds that Gates has not 

demonstrated any basis for finding that he has equitably tolled 

the statute. 

Therefore, it is recommended that Respondent’s Motion to 

Dismiss be granted (Doc. 102), that this petition be denied as 

it is time-barred under the provisions of AEDPA (Doc. 98), that 

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

of Respondent, the United States of America, and against 

Petitioner Todd Jeffery Gates.

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

§ 2254 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) in this case be denied. 28 

U.S.C. foll. § 2254, 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 Gates 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 

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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

It is recommended that Petitioner’s petition for writ of 

habeas corpus, filed pursuant to 28 U.S.C. § 2254, 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 

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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 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 31st day of August, 2012.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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