IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRANCE KEOKI :

CALLEN,

:

Petitioner,

:

vs. CIVIL ACTION NO. 09-0068-CG-C

:

UNITED STATES OF CRIMINAL ACTION NO. 06-0176-CG

AMERICA, :

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Terrance Keoki Callen, 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. 666). 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 Callen’s § 2255 motion be dismissed

as time-barred pursuant to 28 U.S.C. § 2255(f).

FINDINGS OF FACT

1. On October 19, 2006, Callen entered a counseled guilty plea to

Count 16 of the superseding indictment. (See Doc. 327) Count 16 of the

superseding indictment charged petitioner with possession with intent to

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distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). (Compare id.

with Doc. 199) Callen was sentenced, on April 4, 2007, to 151 months

imprisonment. (See Docket Sheet, Minute Entry for April 4, 2007) Judgment

was entered by the Court on April 10, 2007. (Doc. 494) Petitioner’s 151-month

sentence was ordered to run concurrently “with any sentence the defendant

receives in Dallas County Circuit Court case number 06-298. The Court

orders that the custody time be counted from the time the defendant was

arrested on state charges in Dallas County, Alabama, which was March

28, 2006.” (Id. at 2) Callen did not appeal his conviction and sentence. (Doc.

1, at 2) 

2. On February 15, 2008, petitioner filed a pleading styled, “Motion

to Correct the Sentence.” (Doc. 597) Therein, petitioner stated that he was

under the impression that his federal sentence would run concurrent with all

state sentences and, therefore, requested that his sentence run concurrent with

the robbery sentence (Dallas County Circuit Court # 95-472) he was presently

serving. (See id.) Chief United States District Judge Callie V. S. Granade

denied petitioner’s motion by endorsement on March 6, 2008. (Doc. 602) 

Callen requests that his sentence be run concurrent with a state

robbery sentence that he is now serving. That request was made

at the time of sentencing and was denied. The J&C accurately

reflects the sentence imposed in this case. The motion is

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3

therefore DENIED.

(Id.)

3. On September 25, 2008, Callen filed a motion for retroactive

application of sentencing guidelines to his crack cocaine offense pursuant to

18 U.S.C. § 3582(c)(2). (Doc. 654) Petitioner’s motion was denied by order

dated October 23, 2008. (Doc. 657) “The defendant’s original total offense

level was derived from the Career Offender provision of the Sentencing

Guidelines, which makes him ineligible for a reduction in sentence due to the

amended Guidelines for crack cocaine offenses.” (Id.) 

4. Callen filed the instant motion to vacate, pursuant to 28 U.S.C.

§ 2255, on February 5, 2009. (Doc. 666, at 14 (motion executed on February

5, 2009)) When he filed his motion, petitioner claimed that the one-year statute

of limitations was inapplicable. (Id. at 13) 

The one year limitation does not apply to the movant

because he is bringing his 2255 for (2 level reduction 2D1.1)

(Amendment) as a newly recognized right by the U.S. Supreme

Court made retroactive in March 2008. Although it is Congress

that amended 2D1.1 for crack cocaine sentences[,] the courts

have granted 1 year limitation from the date the amendment

became retroactive.

(Id.)

5. On February 23, 2009, the government filed a motion to dismiss

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1 Callen appears to have transposed the (1) and (b); the undersigned reads

petitioner’s response as asserting that this Court should liberally construe his complaint as a

combination 3582(b)(1) and 3582(c)(2) motion.

4

Callen’s § 2255 motion on the basis that it is barred by the one-year statute of

limitations set forth in 28 U.S.C. § 2255(f). (Doc. 668) Callen filed his

response to the government’s motion on March 16, 2009. (Doc. 670)

At the heart of the Gov’t’s motion[] to dismiss is the

argument that the petitioner[’]s 2255 motion should be

dismissed based solely on the fact that according to the

Government the 2255 motion is time barred, [and] it is further

asserted that there is no equitable tolling in this case that would

provide for an extension. The petitioner[’]s position is that

because the merits of his 2255 motion have not been responded

to that this court accept the actual merits of his brief as correct

in law and in fact.

Because Petitioner[’]s Pro Se complaint should be

liberally construed, the Petitioner would humbly ask that the

court liberally construe his 2255 motion as a 3582(1)(B)1

 motion

in conjunction with a 3582(c)(2) motion. By putting 3582(1)(B)

(sic) and 3582(c)(2) in conjunction with each other would allow

the court to modify the term of imprisonment for career status.

And 3582(c)(2) would allow the court to give a two level

reduction under 2D.1.1 of the United States Sentencing

Guidelines. According to 3582(1)(B) (sic) the court may modify

a sentence expressly permitted by statute. The statute under

which the court may modify the petitioner[’]s career offender

term of imprisonment is cited as 3553(a), which clearly states

that the court may remove any incorrect or misapplied

sentencing recommendations if a person is found [] to be subject

to the incorrect or misapplied sentencing recommendations.

Statute 3553(a) has a lofty goal of ensuring that defendants are

sentenced appropriately for crimes they commit. In the instant

case it is clear that the movant is not a career offender and thus

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is eligible for the 2 level reduction under 2D.1.1 of the U.S.S.G.

...

[T]he petitioner respectfully request[s] that his previously

filed 2255 motion be liberally construed as a 3582(1)(B) (sic)

motion to modify the career offender sentence pursuant to

statute 3553(a) and further that the 3582(1)(B) (sic) motion be

construed as joint with a 3582(c)(2) motion allowing for a 2

level reduction pursuant to 2D.1.1 of the U.S.S.G. and that the

petitioner receive the correct sentence this Honorable Court

recalculates based on the facts previously set forth and further

set forth herein.

(Id. at 1-2 & 2-3 (emphasis in original)) 

CONCLUSIONS OF LAW

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

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

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—

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2 In his complaint, Callen contends that the one-year limitation period is

inapplicable because he is pursuing his attack “as a newly recognized right by the U.S. Supreme

Court made retroactive in March 2008[.]” (Doc. 1, at 13) This argument implicates subsection

(3) of § 2255(f) which provides that the one-year period shall run from “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[.]” Id. 

Callen cannot prevail on this argument for a number of reasons. First, it was the United

States Sentencing Commission, not Congress and certainly not the Supreme Court, which

provided for the retroactive application of new sentencing guidelines in crack cocaine cases.

Moreover, petitioner already had his remedy in this regard because the Court entertained but

rejected his motion for sentence modification. (Compare Doc. 657 with Doc. 654) As recognized

by the Fourth Circuit, even where a sentence is modified pursuant to § 3582(c), such

modification does not affect the date upon which a petitioner’s judgment of conviction becomes

6

 

 (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).

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

petitioner’s case2

 and therefore, the timeliness of Callen’s petition must be

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final. United States v. Sanders, 247 F.3d 139, 142 (4th Cir.), cert. denied, 534 U.S. 1032, 122

S.Ct. 573, 151 L.Ed.2d 445 (2001). Finally, petitioner’s true attack now is upon the fact that he

was found to be a career offender, a sentencing factor which was readily apparent from the

moment of sentencing and which could have been attacked on direct appeal or, at the very least,

concurrently raised with his § 3582(c) sentence-modification request. For these reasons,

therefore, petitioner’s argument in his complaint that his § 2255 motion is saved by subsection

(3) of § 2255(f) is rejected. The undersigned would parenthetically note that Callen appears to

have abandoned this argument because it is nowhere raised in his response to the government’s

motion to dismiss. (See Doc. 670)

7

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

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

10, 2007. Because petitioner did not appeal his conviction or sentence, the

judgment of conviction became final on April 20, 2007, ten days after it was

entered. 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, Callen had until April 20, 2008 to timely file a

collateral attack pursuant to § 2255. Because petitioner did not file his § 2255

motion until February 5, 2009, some nine and one-half months after his oneyear limitation period expired, this Court cannot reach the merits of

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petitioner’s claim unless he is entitled to equitable tolling. 

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

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

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9

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

‘”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.’”). 

4. 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

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with the petitioner[.]’”). Petitioner makes absolutely no equitable tolling

argument (Doc. 670) and, therefore, the undersigned finds that this Court can

make no determination other than that petitioner’s own lack of due diligence,

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

petition. This is simply 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, supra, 548 F.3d at

1001 (“We have emphasized that ‘[e]quitable tolling is an extraordinary

remedy that must be applied sparingly’ for ‘[a] truly extreme case.’”).

5. What petitioner wants this Court now to do is liberally construe

his § 2255 motion as a combination motion to modify his sentence pursuant to

18 U.S.C. §§ 3582(b)(1) and 3582(c)(2) and modify his sentence on the basis

that he is not a career offender. While this Court should reject petitioner’s

request on the basis that he should have combined his “career offender”

argument with his § 3582(c)(2) motion back on September 25, 2008 (see Doc.

654), or on the alternative basis that he should have raised this issue on appeal,

see, e.g., United States v. Shannon, 449 F.3d 1146, 1147 (11th Cir. 2006)

(“Zackery Shannon appeals the decision of the district court to sentence him

as a career offender[.]”), a consideration of this argument serves petitioner no

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better than application of the one-year statue of limitations. This is because the

Court, at sentencing, properly concluded that Callen was a career offender.

A defendant who is at least 18 years old when he

commits an offense “is a career offender if . . . the instant

offense of conviction is a felony that is either a crime of

violence or a controlled substance offense . . . and . . . the

defendant has at least two prior felony convictions of either a

crime of violence or a controlled substance offense.” Prior

felony convictions under section 4B1.1 are counted using the

definitions and instructions for computing criminal history in

section 4A1.2. A prior conviction is “any sentence previously

imposed upon adjudication of guilt . . . for conduct not part of

the instant offense.” A prior conviction is counted when

“imprisonment exceeding one year and one month . . . was

imposed within fifteen years of the defendant’s commencement

of the instant offense.”

Shannon, supra, 449 F.3d at 1148 (internal citations omitted). Callen does not

argue that he was not at least 18 when he committed the instant offense nor

does he argue that the instant offense is not a controlled substance offense. In

addition, he does not contend that he does not have a prior conviction for

conduct not part of the instant offense. Instead, his sole argument is that he did

not have at sentencing in this cause two prior felony convictions because his

three prior robbery sentences imposed by the Circuit Court of Dallas County

on January 28, 1997 were imposed for related convictions and, therefore, count

as but one sentence/conviction. (Compare Doc. 666, at 4-5 with Doc. 670, at

1-3) 

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6. The law is clear in this circuit that “‘[p]rior sentences are not

considered related if they were for offenses that were separated by an

intervening arrest (i.e., the defendant is arrested for the first offense prior to

committing the second offense).’” United States v. Wilks, 464 F.3d 1240, 1244

(11th Cir.) (citation omitted), cert. denied, 549 U.S. 1066, 127 S.Ct. 693, 166

L.Ed.2d 539 (2006); see also United States v. Duty, 302 F.3d 1240, 1241 (11th

Cir. 2002) (same). Moreover, “[t]his inquiry is preliminary to any

consideration of consolidated sentencing[.]” Wilks, supra. In other words, the

fact that Callen’s robbery convictions were consolidated for purposes of

sentencing does not prevent same from being counted as more than one

conviction/sentence under the § 4B1.1 career offender enhancement provision

provided an intervening arrest separated the underlying predicate offenses. See

id. In this case, it is clear that the Court did not err when it counted Callen’s

third-degree robbery conviction separate from one of his first-degree robbery

convictions “in applying the § 4B1.1 career offender enhancement because his

prior convictions are unrelated under § 4A1.2.” Id. (citation omitted).

Although consolidated for sentencing on the same day, Callen’s first

conviction was for a charge of third-degree robbery of a convenience store

stemming from an arrest on May 2, 1995. Petitioner’s second conviction

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3 The third charge actually consolidated for sentencing by the state court on

January 28, 1997, another first-degree robbery charge stemming from a June 29, 1996 arrest, was

not counted by the United States Probation Office, or considered by the Court, in determining

whether Callen was a career offender.

13

stemmed from an arrest on May 25, 1996 for the first-degree robbery of a

motel.3

 More than one year separated the arrests for these two convictions.

“Because an intervening arrest separated the underlying predicate offenses,”

Wilks, supra, this Court did not err in counting them separately and enhancing

Callen’s sentence under § 4B1.1. Id. Accordingly, petitioner’s § 2255 motion,

in addition to being time-barred, has no merit.

CONCLUSION

The Magistrate Judge recommends that the instant petition be dismissed

as time-barred pursuant to 28 U.S.C. § 2255(f). Such dismissal is also proper

since Callen’s § 2255 motion has no merit.

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 24th day of March, 2009.

 s/WILLIAM E. CASSADY 

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

l. Objection. Any party who objects to this recommendation or anything in it must,

within ten 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)©; 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 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. 

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.

_s/WILLIAM E. CASSADY___________ 

UNITED STATES MAGISTRATE JUDGE

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