United States District Court, S.D. Georgia, Brunswick Division
REPORT AND RECOMMENDATION
pleading guilty to conspiracy to possess with intent to
distribute cocaine, cocaine base, and "Molly, " all
Schedule I or Schedule II controlled substances, doc.
(plea agreement); doc. 293 (judgment for 151 months'
imprisonment), Eric LaShawn Demery took no appeal. He now
moves under 28 U.S.C. § 2255 to reduce his sentence in
light of a November 1, 2015 amendment to the Sentencing
Guidelines' "mitigating role" adjustment.
See doc. 85; U.S.S.G. § 3B1.2. Preliminary
§ 2255 Rule 4 review shows that his motion must be
was entered on February 18, 2015, making Demery's
conviction final fourteen days later. Fed. R. App. P.
4(b)(1)(A)(i) (defendants must notice their appeals within 14
days from the entry of judgment). He then had until March 3,
2016 (one year later) to seek § 2255 relief. 28 U.S.C.
§ 2255(f). He did not signature-file the present
§ 2255 motion, however, until August 19, 2016 - over
five months too late. Doc. 357. Movant offers no explanation
for his failure to timely file his § 2255 motion.
the statute of limitations "can be equitably tolled
where a petitioner untimely files because of extraordinary
circumstances that are both beyond his control and
unavoidable even with diligence, " Kicklighter v.
United States, 281 F.App'x 926, 930 (11th Cir. 2008)
(quoting Outler v. United States, 485 F.3d 1273,
1280 (11th Cir. 2007)), this is not such a case. Demery has
not demonstrated either the existence of "extraordinary
circumstances" that prevented his timely filing the
petition, Wakefield v. R.R. Ret. Bd., 131 F.3d 967,
970 (11th Cir. 1997) (neither a litigant's pro
se status nor ignorance of the law normally warrants
equitable tolling), or that he diligently pursued relief.
See Diaz v. Sec'y for Dep't of Corr., 362
F.3d 698, 702 (11th Cir. 2004) ("equitable tolling is
available only if a petitioner establishes both
extraordinary circumstances and due diligence"). Hence,
Demery's motion is time-barred unless he can show an
exception, like a new rule of law retroactively available to
him. See 28 U.S.C. § 2255(f).
in Amendment 794, however, entitles him to resentencing. That
amendment merely "clarified the factors to consider for
a minor-role adjustment" - it did not substantively
change § 3B1.2. United States v. Casas, 632
F.App'x 1003, 1004 (11th Cir. 2015). Indeed, the
Sentencing Commission specifically explained that Amendment
794 is intended only as a clarifying amendment.
U.S.S.G. Supp. App. C, Amend. 794 (Reason for Amend.)
("This amendment provides additional guidance to
sentencing courts in determining whether a mitigating role
threshold inquiry, " therefore, "is whether
[Demery's] claim that his sentence is contrary to a
subsequently enacted clarifying amendment is cognizable under
§ 2255." Burke v. United States, 152 F.3d
1329, 1331 (11th Cir. 1998). See, e.g., Jacobs v. United
States, 2016 WL 4183312 at * 1 (S.D. Ga. Aug. 5, 2016);
Knight v. United States, 2016 WL 4082701 (S.D. Ga.
Jul. 29, 2016). Burke confirms that § 2255
relief is not available to Demery. In both cases, the movants
did not appeal. Burke, 152 F.3d at 1331. After
sentencing, the Sentencing Commission added a clarifying
amendment to the Guidelines, and the petitioners moved under
§ 2255 to modify their sentences based on the change.
in Burke, Demery "was afforded the opportunity
to" challenge the denial of a minor role adjustment
"at his original sentencing and on direct appeal."
Id. at 1332. He never did."Considering all of the
circumstances, [the Court] cannot say that the alleged
misapplication of the sentencing guidelines in this case was
fundamentally unfair or that it constituted a miscarriage of
justice sufficient to form the basis for collateral
also contends, without providing specifics, that his counsel
was ineffective for failing to "raise the issue of a
minor participa[nt] roleduring sentencing], and request a
downward departure." Doc. 357 at 9. As discussed above,
however, Demery did not execute his § 2255 motion until
over a year after final judgment was entered. See
docs. 293 (judgment dated February 18, 2015), 357
(movant's motion dated August 19, 2016, seventeen months
later); see also 28 U.S.C. § 2255(f) (one year
statute of limitation). Amendment 794 won't stop the
limitations clock for an untimely ineffective assistance of
counsel (IAC) claim, and Demery does not otherwise explain
the delay, allege that he has been pursuing his rights
diligently, or contend that some extraordinary circumstance
prevented him from timely filing his motion. Put another way,
equitable tolling is not warranted. See Williams v.
United States, 586 F.App'x 576, 576 (11th Cir.
2014). Movant's IAC claim, therefore, is
Eric LaShawn Demery's § 2255 motion should be
DENIED. Applying the Certificate of Appealability (COA)
standards set forth in Brown v. United States, 2009
WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court
discerns no COA-worthy issues at this stage of the
litigation, so no COA should issue either. 28 U.S.C. §
2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus
Cases Under 28 U.S.C. § 2254 ("The district court
must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant")
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F.App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F.App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.
The Court is citing to the criminal
docket in CR214-014 unless otherwise noted, and all page
numbers are those imprinted by the Court's ...