United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge
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.
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).
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).
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.
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).
Motion to Vacate, Set Aside or Correct Sentence
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).
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.
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.
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.