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United States v. Roberts

United States District Court, W.D. Arkansas, Texarkana Division

October 25, 2016



          Susan O. Hickey United States District Judge

         Before the Court is the Report and Recommendation filed August 30, 2016, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 73). Judge Bryant recommends that Roberts' Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 55) be denied. In addition, Judge Bryant also recommends that Roberts' Motion to Certify to the United States Attorney General that 18 U.S.C. § 2423(a)'s Constitutionality Has Been Called Into Question, Pursuant to 28 U.S.C. § 2403 (ECF No. 68), as well as his Motion Requesting the Court Order the Clerk to File Petitioner's Motion Refused by the Clerk (ECF No. 69) also be denied. Roberts has filed timely objections to the Report and Recommendation. (ECF No. 74). The Court finds the matter ripe for consideration. After reviewing the record de novo, the Court adopts Judge Bryant's Report and Recommendation as its own.


         On August 22, 2012, Roberts was charged in an Indictment with Transportation of a Minor in violation of 18 U.S.C. § 2423(a). Roberts ultimately pled guilty to the count in the Indictment and was sentenced to 120 months in the Bureau of Prisons with credit for time served in federal custody, as well as three years of supervised release. In addition, Roberts was ordered to pay $91, 408.60 in restitution. On June 4, 2013, Roberts filed a Notice of Appeal and the United States Court of Appeals for the Eighth Circuit subsequently affirmed his conviction. (ECF No. 31).

         On November 13, 2014, Roberts filed a pro se Motion for Review of Sentence Pursuant to 18 U.S.C. § 3742(a)(1). (ECF No. 32). The Court subsequently denied Roberts' motion, reasoning that the claims raised therein would be more appropriate in a motion brought under 28 U.S.C. § 2255. (ECF No. 44). The Court ordered Roberts to re-file his claims in a Motion to Vacate, Correct, or Set Aside Sentence pursuant to 28 U.S.C. § 2255 on or before October 30, 2015. (ECF No. 44 at pp. 2-3).

         Roberts did not file the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to § 2255 until February 1, 2016. (ECF No. 55). In the motion, Roberts raises claims of ineffective assistance of counsel. The Government filed its response to the motion and asserted that the claims raised in Roberts' motion were time-barred. (ECF No. 62). The Government further argues that, even if Roberts' ineffective assistance of counsel claims were not time-barred, Roberts' claims were without merit and should be denied. Id. In addition, the Government argued that any request for a certificate of appealability should be denied. Id.

         On August 30, 2016, Judge Bryant issued a Report and Recommendation that Roberts' Motion under § 2255 be denied because the motion is time-barred under the Antiterrorism and Effective Death Penalty Act's (“AEDPA”) one-year statute of limitations. Specifically, Judge Bryant noted that Roberts failed to comply with this Court's order directing Roberts to file such a motion on or before October 30, 2015. (ECF No. 44). Moreover, Judge Bryant concluded that Roberts was not entitled to equitable tolling of the statute of limitations in this matter because Roberts failed to show that he pursued his rights diligently or that he had some extraordinary circumstance in his way that prevented timely filing. (ECF No. 73, p. 6).


         A. Motion to Vacate, Set Aside or Correct Sentence

         On September 8, 2016, Roberts filed timely objections to Judge Bryant's Report and Recommendation. (ECF No. 74). As to his motion pursuant to § 2255, Roberts objects to Judge Bryant's conclusion that he failed to show adequate grounds for equitable tolling of the statute of limitations. Specifically, Roberts contends that he has demonstrated diligence through filing multiple motions with the Court, as well as with the United States Court of Appeals for the Eighth Circuit. In addition, Roberts asserts that his “clear ignorance of law” demonstrates that he meets the extraordinary prong. (ECF No. 74, p. 2).

         Equitable tolling affords an otherwise time-barred petitioner relief from the one-year time limit imposed on § 2255 motions. U.S. v. Martin, 408 F.3d 1089, 1092 (8th Cir. 2005). Equitable tolling is proper only if the movant demonstrates (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. Fla., 560 U.S. 631, 632 (2010). The diligence prong concerns “those affairs within the [movant's] control, ” while the extraordinary circumstances prong “is meant to cover matters outside [the movant's] control.” Menominee Indian Tribe of Wisconsin v. U.S., 136 S.Ct. 750, 756 (2016). Equitable tolling is only available when the movant satisfies both elements of the test. Id. at 752.

         The Court finds Richards' assertion that equitable tolling is appropriate in this matter unpersuasive. First, the Court is unpersuaded that Richards has met the diligence prong simply through filing multiple motions prior to the instant motion. Such filings do not provide an adequate basis as to why Roberts failed to exercise similar diligence and file his § 2255 motion on or before the deadline explicitly set within the Court's previous order.

         However, even if Richards' frequent filings prior to the instant motion are evidence of diligence, he still would not be able to take advantage of equitable tolling because he has failed to demonstrate “extraordinary circumstances.” The Eighth Circuit has previously held that ignorance of the law and lack of legal experience is not an “extraordinary circumstance” that would justify equitable tolling for an untimely filing, even for a pro se prisoner. See e.g., Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (holding that a “[p]etitioner's misunderstanding of the Arkansas rules, statutes, and the time period set forth therein do not justify equitable tolling”). Accordingly, Richards has not presented facts or circumstances necessary to warrant equitably tolling the filing deadline for his § 2255 motion.

         B. Certificate ...

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