Rives v. United States
Decision Date | 30 November 2018 |
Docket Number | CIVIL FILE NO. 1:18-CV-3197-TWT-JFK,CRIMINAL INDICTMENT NO. 1:14-CR-0130-TWT-JFK-4 |
Parties | KAMALI RIVES, Movant, v. UNITED STATES OF AMERICA, Respondent. |
Court | U.S. District Court — Northern District of Georgia |
MOTION TO VACATE 28 U.S.C. § 2255
Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered in this Court under the above criminal docket number. The matter is before the Court on the motion to vacate [297] and Respondent's response [302]. The docket does not show that Movant has filed a reply within the time directed by the Court [298], and the matter is ready for disposition. For the reasons discussed below, the undersigned recommends that Movant's motion to vacate be dismissed as untimely and that a certificate of appealability (COA) be denied.
The grand jury for the Northern District of Georgia charged Movant on one count of bank fraud conspiracy, ten counts of bank fraud, seven counts of access device fraud, and five counts of aggravated identity theft. (Indictment, ECF No. 1). On December 16, 2015, represented by Jay Strongwater, Movant pleaded guilty to all counts. (Plea With Counsel, ECF No. 205-1). On March 4, 2016, the Court imposed a total 234-month term of imprisonment. (Corrected J., ECF No. 219; Sentencing Tr. at 127, ECF No. 244). On March 28, 2017, the Eleventh Circuit Court of Appeals affirmed the judgment against Movant. (USCA Op., ECF No. 262). The record does not indicate that Movant sought further direct review.
On June 29, 2018, Movant filed his § 2255 motion, signed on June 28, 2018.1 (Mot. to Vacate, ECF No. 297). Therein, Movant asserts that he received ineffective assistance of counsel in regard to objections to the presentence investigation report (PSR) and at sentencing. (Id. at 5-6, 8-9). Movant left blank "Place of Confinement" on the § 2255 motion and provided a non-prison address on his mailing label. (Id. at 1; Envelope, ECF No. 297-1).
Respondent argues that this action should be dismissed as untimely because Movant, an absconder, is not entitled to application of the prisoner mailbox rule and because his motion is untimely based on the June 29, 2018, filing date and is untimelyeven if it is deemed filed on the date that he signed it. (Resp't Resp. at 3-7, ECF No. 302 ( )).
Movant has not replied. A review of the BOP's website shows that Movant is "NOT IN BOP CUSTODY[.]" See https://bop.gov/inmateloc/ (follow "Find By Number" hyperlink, number 65922-019) (last visited Nov. 28, 2018).
28 U.S.C. § 2255(f).
Equitable tolling of the federal limitations period sometimes may be warranted, but Williams v. United States, 491 F.3d 1282, 1284 (11th Cir. 2007). Actual innocence also provides a limited exception to AEDPA's time limitations. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).2
To determine the filing date for a motion to vacate, a prisoner filing may be deemed filed on the day that the prisoner delivered it for mailing to prison officials, which, absent evidence to the contrary, is presumed to be the date on which he signed it. Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (citing Houston v. Lack, 487 U.S. 266, 276 (1988); United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012)). Under § 2255 rules, "[a] paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on orbefore the last day for filing." Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 3(d). An absconder, however, who is neither confined nor required to deposit his motion in a prison mailing system, is not entitled to any benefit from the prisoner mailbox rule. See Dombrowsky v. Hill, No. 1:11-CV-3048-MHS, 2014 WL 12539353, at *1 (N.D. Ga. Apr. 21, 2014) ( ); Allen v. United States, No. 1:06-CR-0155-CAP-GGB, 2012 WL 928726, at *2 n.2 (N.D. Ga. Jan. 27, 2012) () , report and recommendation adopted by 2012 WL 928733 (N.D. Ga. Mar. 16, 2012).
Here, Respondent states that Movant is an absconder, which statement is consistent with BOP records, and Movant has not shown otherwise. As an absconder, Movant is not entitled to application of the prisoner mailbox rule, and his motion's filing date is as docketed, June 29, 2018. Under § 2255(f)(1), Movant's convictions became final on June 26, 2017, when his time to seek a writ of certiorari in the United States Supreme Court expired, ninety days after the Eleventh Circuit Court of Appeals on March 28, 2017, affirmed his convictions. See Michel v. United States, 519 F.3d1267, 1268 n.1 (11th Cir. 2008) ( ). There is no indication that § 2255(f)(2)-(4), the actual innocence exception, or equitable tolling apply. Thus, Movant's § 2255 motion to vacate was due by June 27, 2018, at the latest,3 and his motion, filed on June 29, 2018, is untimely. Further, even if his motion was deemed filed on June 28, 2018, it remains untimely. Accordingly, this action must be dismissed as untimely.
Further, it is doubtful that Movant is entitled to challenge his convictions under § 2255 in the first place. As an absconder, Movant appears to have waived his right to collaterally challenge his conviction in this Court. See Hall v. State of Ala., 700 F.2d 1333, 1337 (11th Cir. 1983) (); United States v. Collins, 651 F. Supp. 1177, 1179-80 (S.D. Fla. 1987) ( ). Additionally, it is questionable that an escaped convict can meet the in custody requirement for a collateral challenge under § 2255. See 28 U.S.C. § 2255 ; Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 402 (11th Cir. 1988) ( ).
Under Rule 11 of the Rules Governing § 2255 Cases, The Court will issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, the prisoner in order to obtain a COA, still must show both (1) "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right" and (2) "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."
Lambrix v. Sec'y, DOC, 872 F.3d 1170, 1179 (11th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert. denied, ___ U.S. ___, 138 S. Ct. 312 (2017).
It is recommended that a COA is unwarranted because based on the record before the Court it is not reasonably debatable that Movant's motion to vacate is untimely. If the Court adopts this recommendation and denies a COA, Movant is advised that he "may not appeal the denial but may seek a certificate from the court ofappeals under Federal Rule of Appellate Procedure 22." Rule 11(a), Rules Governing Section 2255 Proceedings for the United States District Courts.
For the reasons stated above,
IT IS RECOMMENDED that Movant's motion [113] to vacate, set aside, or correct his federal sentence be DENIED and DISMISSED as...
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