United States District Court, N.D. Georgia, Rome Division
TO VACATE 28 U.S.C. § 2255
FINAL REPORT AND RECOMMENDATION
E. JOHNSON UNITED STATES MAGISTRATE JUDGE
Kenneth Darnell Williams, is confined in the Shawangunk
Correctional Facility in Wallkill, New York. Movant submitted
a “Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody” .
Because movant challenges his previous conviction in this
Court, the Clerk docketed the matter as a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(“Motion to Vacate”).
matter is before the Court for preliminary review pursuant to
Rule 4(b) of the Rules Governing Section 2255 Proceedings.
For the reasons stated below, the undersigned
RECOMMENDS that the Motion to Vacate be
DISMISSED as untimely and a certificate of
appealability be DENIED.
indictment filed on February 8, 2000, movant was charged with
two counts of conspiracy to distribute narcotics, in
violation of 21 U.S.C. § 846 . On June 27, 2000, a
jury found movant guilty on count one and not guilty on count
two . On August 28, 2000, the District Court filed the
Judgment and Commitment, sentencing movant to seventy-two
months of imprisonment, followed by six years of supervised
release . Movant did not appeal. On August 10, 2010, the
District Court discharged movant from supervised release and
terminated the proceedings .
Motion to Vacate, postmarked on April 13, 2018, movant claims
that (1) his counsel provided ineffective assistance
throughout the proceedings, including failing to file an
appeal, and (2) there was “no evidence in support of
the conviction” because the “star prosecution
witness” committed perjury. (Mot. Vacate 1-4.) Movant
attaches a document indicating that his conviction was cited
as a predicate felony when he was sentenced for a drug crime
committed in New York in 2011. (Id. at 5.) Movant
thus suggests that he is challenging his conviction in this
Court because it affected his New York sentence and may have
other future consequences.
dismissal of a § 2255 motion is proper “[i]f it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not
entitled to relief . . . .” 28 U.S.C. foll. §
2255, Rule 4(b). A § 2255 motion is subject to the
one-year statute of limitations provided by 28 U.S.C. §
2255(f). The one-year period runs from the latest of the
dates on which (1) movant's conviction became final; (2)
a government impediment to making the § 2255 motion was
removed; (3) a right that movant asserts was initially
recognized by the United States Supreme Court, if the right
has been newly recognized and made retroactively applicable
to cases on collateral review; or (4) movant, with due
diligence, could have discovered the facts supporting his
claims. See 28 U.S.C. § 2255(f)(1)-(4).
§ 2255(f)(1), movant had no more than ten business days
in which to appeal his conviction after the District Court
filed the Judgment and Commitment on August 28, 2000.
See Fed. R. App. P. 4(b)(1)(A)(i) & 26(a)
(2000). Movant did not appeal, and the period in which to do
so expired no later than September 12, 2000. Thus,
movant's conviction became final no later than that date,
and the one-year statute of limitations in § 2255(f)(1)
expired no later than September 12, 2001. Movant postmarked
the Motion to Vacate more than sixteen and one-half years
late, on April 13, 2018. Movant does not indicate that the
circumstances set forth in § 2255(f)(2)-(4) apply to
tolling is appropriate when a [movant] untimely files because
of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.”
Sandvik v. United States, 177 F.3d 1269, 1271 (11th
Cir. 1999) (per curiam). As to the alleged failure of
movant's counsel to file an appeal, “[m]ere
attorney negligence does not justify equitable tolling. . . .
For a [movant] to be entitled to equitable tolling, there
must be egregious attorney misconduct, such as proof of bad
faith, dishonesty, divided loyalty, mental impairment or so
forth on the lawyer's part.” Scott v.
Duffy, 372 Fed.Appx. 61, 63 (11th Cir. 2010) (per
curiam) (citations and internal quotation marks omitted).
Movant fails to show that counsel's failure to file an
appeal satisfies that standard. Movant also fails to show
that he acted diligently in waiting more than sixteen and
one-half years before seeking § 2255 relief. Therefore,
movant is not entitled to equitable tolling.
innocence is not itself a substantive claim, but rather
serves only to lift the procedural bar caused by [a
movant's] failure timely to file [a] § 2255
motion.” United States v. Montano, 398 F.3d
1276, 1284 (11th Cir. 2005) (per curiam). To demonstrate
actual innocence, a movant must “support his
allegations of constitutional error with new reliable
evidence . . . that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). A movant
“must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.” Id. at 327. Movant has not
presented new reliable evidence demonstrating actual
the undersigned RECOMMENDS that the Motion
to Vacate be DISMISSED as untimely.