Dodd v. U.S.

Decision Date16 April 2004
Docket NumberNo. 02-16134.,02-16134.
Citation365 F.3d 1273
PartiesMichael Donald DODD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Janice Bergmann (Court-Appointed), Fed. Pub. Def., Fort Lauderdale, FL, Kathleen M. Williams (Fed. Pub. Def.), Miami, FL, for Petitioner-Appellant.

Lisette M. Reid, Anne R. Schultz, U.S. Atty., Jonathan D. Colan, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE*, Judge.

MARCUS, Circuit Judge:

Michael Donald Dodd, a federal prisoner, appeals the dismissal of his petition to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Dodd claims that his conviction violated both the Sixth Amendment and the Due Process Clause because the district court failed to charge the jury that in order to find him guilty of engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848, it had to find him guilty of each constituent violation by a unanimous vote. The district court dismissed Dodd's petition after adopting a Report and Recommendation from a magistrate judge which concluded that Dodd had failed to file his § 2255 application within the one-year statute of limitations applicable to such motions under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255(1)-(4). After thorough review of the record and the parties' briefs, we find no reversible error and affirm.

I.

The factual background of this case is relatively straightforward, and we offer only the following brief summary of the relevant facts and procedural history. On June 25, 1993, a grand jury sitting in the United States District Court for the Southern District of Florida charged Dodd by superseding indictment with knowingly and intentionally engaging in a CCE, in violation of 21 U.S.C. §§ 841 and 846 ("Count I"); conspiring to possess with intent to distribute marijuana (as part of Count I's CCE), in violation of 21 U.S.C. § 841(a)(1) ("Count II"); conspiring to possess with intent to distribute cocaine (as part of Count I's CCE), in violation of 21 U.S.C. § 841(a)(1) ("Count III"); and sixteen counts of using and possessing a passport obtained by false statement, in violation of 18 U.S.C. § 1546(a) ("Counts IV-XIX"), arising out of his leadership role in the "Spangler Posse," a large Jamaican drug distribution network based in New York City, from the 1970's through at least the 1980's.

After trial by jury, Dodd was found guilty as to all counts except for Count III. The district court imposed a 360-month term of imprisonment, followed by five years of supervised release. On May 7, 1997, we affirmed his conviction on direct appeal. See United States v. Dodd, 111 F.3d 867 (11th Cir.1997) (per curiam). Dodd did not petition the Supreme Court for certiorari, and his conviction became final on August 6, 1997, when the time for filing a petition for certiorari expired.1

On April 4, 2001, more than three years later, Dodd filed this § 2255 petition, arguing that his Sixth Amendment and due process rights were violated because the jury in his underlying criminal case was not instructed that to find him guilty of the CCE count, it had to find him guilty of each constituent violation by a unanimous vote. Dodd based his argument on the Supreme Court's June 1, 1999, decision in Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (holding that to find a defendant guilty on a CCE count, a jury must find the defendant guilty by a unanimous vote of each of the constituent violations of the CCE).

In its response to Dodd's petition, the government argued that Dodd's motion was time-barred, because it had been filed well beyond AEDPA's one-year limitations period.2 While the government conceded that the date the statute of limitations begins to run for a Richardson claim is unsettled in this Circuit, it urges us to hold that AEDPA's one-year statute of limitations period began to run on June 1, 1999, the day the Supreme Court decided Richardson. Under these circumstances, Dodd's petition — filed almost two years later — plainly would be untimely unless the statute of limitations were somehow tolled.

Dodd responds that the one-year statute of limitations period for Richardson claims did not begin to run until April 19, 2002, when this Court made Richardson retroactively applicable to cases on collateral review in Ross v. United States, 289 F.3d 677 (11th Cir.2002), cert. denied, 537 U.S. 1113, 123 S.Ct. 944, 154 L.Ed.2d 787 (2003). If we adopt this date as the trigger for the statute of limitations, then any motion filed prior to April 19, 2003 — including Dodd's — would be timely.

In the alternative, Dodd says that even if the limitations period began to run immediately after Richardson was decided, it should be equitably tolled from October 25, 1999, to September 11, 2000, during which time he was in custody of the U.S. Marshal, did not have access to his legal papers, and was impeded from filing his motion. On October 25, 1999, Dodd was transported from the federal correctional facility in Talladega, Alabama, where he maintained his legal papers, to the federal detention center in Miami, Florida, pursuant to a writ of habeas corpus ad testificandum issued by the United States Attorney for the Southern District of Florida. During his time in Miami, Dodd's papers remained in Talladega. He was returned to Talladega on September 11, 2000.

Dodd filed his § 2255 motion approximately seven months later, on April 4, 2001. Subsequently, on October 18, 2001, the magistrate judge issued a Report and Recommendation concluding that Dodd's motion should be dismissed because (1) the motion was filed more than one year after the Supreme Court's decision in Richardson, and was thus time-barred, and (2) Dodd failed to demonstrate that the circumstances surrounding his late filing were extraordinary or could not have been overcome with due diligence. The district court adopted the magistrate judge's Report and Recommendation on October 31, 2001, and dismissed Dodd's motion as time-barred.

The district court granted Dodd a Certificate of Appealability on the issue of whether the limitations period should have been equitably tolled. This Court subsequently expanded the Certificate of Appealability to include the following issue:

[F]or purposes of a newly recognized right, pursuant to 28 U.S.C. § 2255(3), does the one-year statute of limitations begin to run on the date the Supreme Court initially recognized the right, or does it begin on the date a court first held that the right is recognized retroactively on collateral review?

This question — regarding the date from whence the one-year limitations period of 28 U.S.C. § 2255(3) begins to run — has generated a split among our sister Circuits. Compare United States v. Lopez, 248 F.3d 427, 432-33 (5th Cir.2001) (concluding that limitations period begins to run on the date Supreme Court initially recognizes new right), Nelson v. United States, 184 F.3d 953, 954 (8th Cir.1999) (same), Triestman v. United States, 124 F.3d 361, 371 n. 13 (2d Cir.1997) (stating same in dicta) and Donaldson v. United States, Nos. 01-CV-1061(NPM) & 92-CR-51-001, 2002 WL 1839213 at *4 (N.D.N.Y. Aug. 6, 2002) (following Triestman) with Ashley v. United States, 266 F.3d 671, 673-74 (7th Cir.2001) (concluding that the limitations period begins to run on the date when the new right is declared to be retroactively applicable on collateral review), United States v. Valdez, 195 F.3d 544, 547-48 (9th Cir.1999), United States v. Lloyd, 188 F.3d 184, 187-88 (3d Cir.1999) (assuming that limitations period begins to run only after either Supreme Court's own retroactivity decision or decision by Court of Appeals declaring right retroactively available on collateral review within the relevant circuit), and Berthoff v. United States, 140 F.Supp.2d 50, 59-60 (D.Mass.2001) ("[T]his Court ... believes the better interpretation of section 2255(3) is that the new limitations period should run from the date on which either the Supreme Court or the controlling circuit court holds the new right to be retroactive on collateral review.").

After thoroughly reviewing the record and the briefs, as well as the conflicting case law as to when the limitations period in § 2255(3) begins running, we affirm the dismissal of Dodd's § 2255 motion. In doing so, we join those circuits which have concluded that the limitations period in § 2255(3) is triggered on the date the Supreme Court initially recognizes a new right. We further hold that Dodd has failed to present sufficient evidence to support the application of the doctrine of equitable tolling, an "extraordinary remedy" which we apply only "sparingly." Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000)

II.

This Court reviews de novo a district court's determination "that a petition for federal habeas corpus relief was time-barred," Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir.2002), as we review all issues concerning statutory interpretation. Kaufmann, 282 F.3d at 1337; see also United States. v. Hooshmand, 931 F.2d 725, 737 (11th Cir.1991). Likewise, we review de novo a "district court's determination that equitable tolling is inapplicable...." Steed, 219 F.3d at 1300. However, a district court's determinations of the facts relevant to a petitioner's equitable tolling claim "will be reversed only if clearly erroneous.... This standard requires us to affirm a district court's findings of fact unless `the record lacks substantial evidence' to support that determination." Drew v. Dep't of Corr., 297 F.3d 1278, 1283 (11th Cir.2002) (citing Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir.2001) and quoting Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1558 (11th Cir.1995)), cert. denied, 537 U.S. 1237, 123...

To continue reading

Request your trial
213 cases
  • United States v. Chang Hong
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 11 Octubre 2011
    ...Thomas, 627 F.3d 534, 536–37 (4th Cir.2010); see also Wiegand v. United States, 380 F.3d 890, 892 (6th Cir.2004); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir.2004) aff'd 545 U.S. 353, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005); United States v. Swinton, 333 F.3d 481, 486–87 (3d Cir.200......
  • Sallie v. Chatman
    • United States
    • U.S. District Court — Middle District of Georgia
    • 15 Julio 2014
    ...of diligence for someone in his situation.’ ” Myers v. Allen, 420 Fed.Appx. 924, 927 (11th Cir.2011) (quoting Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir.2004) ). “Efforts reasonably expected of one petitioner might be unattainable for another.” Id. (citing Hunter v. Ferrell, 587 F......
  • Iacullo v. Stamper
    • United States
    • U.S. District Court — Middle District of Alabama
    • 22 Agosto 2016
    ...in which a petition for certiorari must be filed ordinarily ends ninety (90) days after the entry of judgment." Dodd v. United States, 365 F.3d 1273, 1275 n.1 (11th Cir. 2004). Thus, Iacullo's convictions became final on or about July 21, 1998, after the ninety-day period for filing a petit......
  • Howard v. U.S.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 25 Junio 2004
    ...right was newly recognized to satisfy Teague's new rule requirement, and applying Teague's retroactivity analysis); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir.2004) (concluding that a right was newly recognized based on precedent establishing that a new rule had been announced for......
  • Request a trial to view additional results
2 books & journal articles
  • Judicial Estoppel and the Eleventh Circuit Consumer Bankruptcy Debtor - Hon. James D. Walker, Jr. and Amber Nickell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 56-4, June 2005
    • Invalid date
    ...bankruptcy court's ability to revoke a discharge is subject to a statute of limitations. 11 U.S.C. Sec. 727(d)-(e) (2000). 111. Parker, 365 F.3d at 1273. 112. If the trustee abandons the claim and the debtor pursues it in his own name, he will still be subject to the defense of judicial est......
  • Bankruptcy - Hon. James D. Walker, Jr. and Amber Nickell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 56-4, June 2005
    • Invalid date
    ...the bankruptcy context, see Hon. James D. Walker, Jr. & Amber Nickell, Bankruptcy, 55 mercer l. rev. 1101, 110408 (2004). 7. See Parker, 365 F.3d at 1273 n.4. 8. Id. 9. In re Upshur, 317 B.R. 446 (Bankr. N.D. Ga. 2004); In re Huggins, 305 B.R. 63 (Bankr. N.D. Ala. 2003). 10. Id. 11. 305 B.R......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT