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Brown v. United States

United States District Court, N.D. Georgia, Atlanta Division

July 24, 2015

UNITED STATES OF AMERICA, Respondent. Civil File Nos. 1:08-CV-0263-CC-JFK, 1:15-CV-2161-CC-JFK


CLARENCE COOPER, District Judge.

The matter is before the Court (1) on Magistrate Judge Janet F. King's Final Report and Recommendation ("R&R") [191], which recommends denying Movant's motion for relief from judgment [169], motions to compel [171, 176], and motion for nunc pro tunc action [179] (all filed in regard to the June 2011 denial of Movant's initial 28 U.S.C. § 2255 motion); dismissing as successive Movant's June 2015 petition to vacate sentence, construed as a second § 2255 motion to vacate [189]; and denying a certificate of appealability on all matters; (2) on Movant's objections [193]; and (3) on Movant's motion to amend [170] and motion to appeal in forma pauperis [185].

In reviewing a Magistrate Judge's Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). Absent objection, the district judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, " 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation, " Fed.R.Civ.P. 72, advisory committee note, 1983 Addition, Subdivision (b). "[T]he district court has broad discretion in reviewing a magistrate judge's report and recommendation" - it "does not abuse its discretion by considering an argument that was not presented to the magistrate judge" and "has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge." Williams v. McNeil, 557 F.3d 1287, 1290-92 (11th Cir. 2009).

I. Discussion

Represented by Clifford E. Hardwick, Movant pleaded guilty to malicious damage of a building by fire and using fire and an explosive to commit a felony. (Guilty Plea and Plea Agreement at 1, ECF No. 45-1.) In his plea agreement, Movant stipulated that he should receive a total twenty-year sentence and waived his right to appeal or collaterally attack his sentence, unless his sentence exceeded twenty years, resulted from an upward departure from his sentencing guidelines range, or the government appealed. ( Id. at 4-5.) On July 5, 2005, the Court imposed a 240-month total term of imprisonment. (J., ECF No. 52.)

Movant did not appeal. In January 2008, Movant filed his first § 2255 motion. (Mot. to Vacate, ECF No. 54.) After holding an evidentiary hearing, the Court rejected Movant's argument for equitable tolling of the Antiterrorism and Effective Death Penalty Act's (AEDPA's) one-year limitations period and denied his § 2255 motion as untimely. (Order, June 14, 2011, ECF No. 136.) The Court found that Movant had not shown reasonable diligence - "the efforts made by the defendant to contact his attorney in 2005 were meager; he never wrote his attorney to inquire about the status of his appeal and he made no attempt to contact his attorney whatsoever in 2006, 2007 and 2008." ( Id. at 2.) On January 13, 2012, the Eleventh Circuit Court of Appeals denied a certificate of appealability. (Order of USCA, Jan. 13, 2012, ECF No. 168.)

The Eleventh Circuit found as follows:

Here, [Movant] did not dispute that his § 2255 motion - which was filed on January 24, 2008 - was untimely, as his conviction became final in July 2005, and the limitations period expired a year later.... Rather, [Movant] asserted that he was entitled to equitable tolling based on his attorney's failure to file a direct appeal. Although Holland[1] did hold that, in some cases, the AEDPA's one-year statute of limitations might be equitably tolled based on an attorney's negligence, Holland also reaffirmed the requirement that the prisoner must pursue his rights diligently....
[Movant] has not shown that the district court clearly erred in finding that he did not exercise due diligence in filing his § 2255 motion. [Movant's] admissions during the habeas evidentiary hearings show that: (1) he did not personally try to contact counsel anytime after August 2005; (2) he never tried to contact counsel by letter; and (3) he never contacted the court regarding the status of his appeal. Furthermore, [Movant] failed to produce any evidence showing that he had diligently attempted to ascertain the status of his case and timely file his § 2255 motion. Thus, because [Movant] admitted that he did nothing to ascertain the status of his appeal, other than attempt to call his counsel during the month following his sentencing, the district court did not clearly err in finding that he was not diligent....
Although [Movant] argues in his motion for a COA that the district court erred by not considering the evidence of his attorney's subsequent suspension from practicing law, such evidence is irrelevant to whether [Movant] pursued his rights diligently. Moreover, [Movant] cannot show that the district court's credibility determinations were clearly erroneous. The district court's determination that [Movant's] testimony regarding his appeal wishes was not credible was supported by the fact that [Movant] agreed to and understood the sentence appeal waiver provision in his plea agreement and by the fact that Hardwick testified that [Movant] never asked him to appeal his sentence.... Additionally, the total sentence that [Movant] received was the same as the sentence recommended in his written plea agreement, thus suggesting that he had no reason to ask his counsel to appeal his sentence after it was imposed. Therefore, the record did not lack substantial evidence to support the district court's credibility determination.
Finally, to the extent that [Movant] argued that his pro se status and lack of legal knowledge should excuse his delay in learning about his appeal and filing his § 2255 motion, the district court properly rejected these arguments as grounds for equitable tolling.

(Order of USCA, Jan. 13, 2012, at 5-6 (citations omitted).)

A. Movant's Post-Judgment Motions

1. April 2012 Fed.R.Civ.P. ...

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