Johnson v. United States

• Docket Number: 23-60956-CIV-ALTMAN,21-60184-CR-ALTMAN
• Decision Date: 04 August 2023
• Parties: SAMANTHA JOHNSON, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

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SAMANTHA JOHNSON, Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. 23-60956-CIV-ALTMAN, 21-60184-CR-ALTMAN

United States District Court, S.D. Florida

August 4, 2023

Samantha Johnson, pro se

ORDER

ROY K ALTMAN, UNITED STATES DISTRICT JUDGE

Samantha Johnson pled guilty to one count of conspiracy to defraud the United States and, for that crime, is serving a 30-month sentence in the custody of the Bureau of Prisons. See Second Amended Judgment, United States v Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Aug. 31, 2022), ECF No. 98 at 1-2. She's now filed a motion to vacate her conviction and sentence under 28 U.S.C. § 2255. See Motion to Vacate (“Motion”) [ECF No. 1]. Johnson believes that her Motion is untimely under the limitations period set out in 28 U.S.C. § 2255(f)(1), and she tries to justify that untimeliness by claiming that (1) she “did not have access to the law library due to the COVID 19 pandemic” and (2) “[t]he resources she needed to prepare, copy, and study for her pro se 2255 petition were virtually inaccessible[.]” Id. at 10-11. We've already interpreted this as a request for “us to find that § 2255's limitations period was equitably tolled.” Limited Order to Show Cause [ECF No. 3] at 1.

Since the timeliness of Johnson's Motion was very much in doubt, we ordered the Government to “file a limited Response addressing the timeliness of the Motion.” Id. at 2. The Government filed that Response on June 13, 2023. See Response Memorandum of Fact and Law Addressing Whether Johnson's 28 U.S.C. § 2255 Motion is Timely (“Response”) [ECF No. 7]. After careful review, we agree with the Government that Johnson isn't entitled to equitable tolling and that, as a result, her Motion must be DISMISSED.

The Facts

A grand jury in our District charged Johnson with one count of conspiracy to wrongfully disclose individually identifiable health information (Count 1) and nine substantive counts of wrongfully disclosing individually identifiable health information (Count 2-10). See Indictment, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. June 30, 2021), ECF No. 1 at 1-13. The Government alleged, and Johnson later admitted, that Johnson and a co-conspirator gained access to the “personal identifying information address and telephone contact numbers of individuals [who] were patients at Memorial Health Care System” in Hollywood, Florida. See Factual Proffer, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Jan. 24, 2022), ECF No. 58 at 1. Johnson then used that information “to obtain leads on acquiring distressed, abandoned[,] foreclosed and/or probated real property.” Id. at 3. On January 24, 2022, Johnson pled guilty to Count 1 of the Indictment, and the Government later dismissed the remaining counts. See Plea Agreement, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Jan. 24, 2022), ECF No. 57 at 1.

On March 24, 2022, we sentenced Johnson to 30 months in prison. See Judgment, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Mar. 24, 2022), ECF No. 76 at 1-2. We also ordered Johnson to pay some restitution, but we deferred until a later date a final determination of the specific amount she would owe in restitution. See id. at 6. We then amended Johnson's judgment two more times. First, on March 28, 2022, we added a provision recommending that “[t]he defendant be placed at FCI Tallahassee[.]” Amended Judgment, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Mar. 28, 2022), ECF No. 78 at 2. Second, on August 31, 2022, we amended the judgment to reflect the parties' stipulation that Johnson owes $59,387.02 in restitution. See Second Amended Judgment, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Aug. 31, 2022), ECF No. 98 at 6. Johnson never filed a direct appeal. See generally Docket.

On April 25, 2023,^[1] Johnson filed a pro se “Motion to Request Extension of Time to File Petition Pursuant to 28 U.S.C. § 2255.” Motion for Extension of Time, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. May 2, 2023), ECF No. 111. In that motion, Johnson asked us to extend § 2255's limitations period by ninety days because she didn't have “full access to the law library” and because she lacked “adequate time to properly prepare” a § 2255 motion. Id. at 1-2. We denied Johnson's motion for an extension of time, explaining that “we can't preemptively grant a motion for extension of time” in a § 2255 proceeding before the movant has filed her motion to vacate in the first place. Paperless Order, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. May 3, 2023), ECF No. 112 (citing United States v. Cuya, 964 F.3d 969, 972 (11th Cir. 2020)); see also Swichkow v. United States, 565 Fed.Appx. 840, 844 (11th Cir. 2014) (“Here, because Swichkow had yet to file an actual § 2255 motion at the time he sought an extension to the limitations period, there was no actual case or controversy to be heard. Thus, the district court properly concluded that it lacked jurisdiction to consider Swichkow's requests for an extension of time to file a § 2255 motion absent a formal request for habeas relief.”). Johnson filed her § 2255 Motion on May 15, 2023. See Motion at 12.

The Law

“Section 2255 allows a federal prisoner to seek post-conviction relief from a sentence imposed in violation of the Constitution or laws of the United States or if it is otherwise subject to collateral attack.” Murphy v. United States, 634 F.3d 1303, 1306 (11th Cir. 2011). But “Congress created a one- year statute of limitations for § 2255 motions” in § 2255(f), id. at 1307, which provides that “[t]he limitation period shall run from the latest of”:

(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)(1)-(4).

Still, a § 2255 movant can, in very limited circumstances, file an otherwise untimely motion to vacate. First, “§ 2255's period of limitations may be equitably tolled.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Equitable tolling applies if the movant can show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Second, an untimely motion will be excused if the movant presents proof of her “actual innocence.” See McQuiggin v. Perkins, 569 U.S. 383, 393 (2013) (“[A] prisoner's proof of actual innocence may provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error.”). To avail herself of the actual-innocence exception, the movant must satisfy two elements. One, she must “support the actual innocence claim ‘with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir. 2006) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). In this context, “[a]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (cleaned up). Two, she must show that, in light of this new evidence, “it is more likely than not that no reasonable juror would have convicted [the movant].” Schlup, 513 U.S. at 329.

Analysis

Both Johnson and the Government agree that Johnson's Motion is untimely under § 2255(f), and Johnson doesn't allege that she's “actually innocent” of the crimes she pled guilty to. See generally Motion; Response. The sole issue before us, then, is whether Johnson is entitled to equitable tolling. See Motion at 11 (“Petitioner feels that she qualifies for the extended time in which to file her petition [which] is only 11/2 months past her 1 year time limit.”); Response at 5 (“There is no dispute that the Motion is untimely. The only question is whether the untimeliness should be excused.”).^[2] Johnson insists that the effects of the COVID-19 pandemic constituted an “extraordinary circumstance” that prevented her from filing her Motion on time because the prison restricted her access to the law library. See Motion at 10-11 (“Petitioner did not have access to the law library due to the COVID 19 pandemic. The resources she needed to prepare, copy, and study for her pro se 2255 petition were virtually inaccessible and not open for her full use until the beginning of 2023.”). We find this argument unpersuasive for two reasons.

First the Eleventh Circuit has repeatedly held that “lockdowns and periods in which a prisoner is separated from his legal papers are not ‘extraordinary circumstances' in which equitable tolling is appropriate.” Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir. 2004); see also Miller v. Florida, 307 Fed.Appx. 366, 368 (11th Cir. 2009) (“[E]ven restricted access to a law library, lock-downs, and solitary confinement do not qualify as extraordinary circumstances warranting equitable tolling.”). And district courts throughout our Circuit have uniformly held that law-library restrictions caused by the COVID-19 pandemic should be treated no differently. See, e.g., Lutgen v....