United States District Court, E.D. Texas, Beaumont Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
CHRISTINE A. NOWAK, UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant Troy Ramone Johnson's
Letter Motion for extension of time to appeal
(“Motion”) [Dkt. 39]. On February 5, 2018, the
motion was referred to the undersigned U.S. Magistrate Judge
for consideration and a determination or recommended
disposition pursuant to 28 U.S.C. § 636 [Dkt. 40].
Having considered the Letter Motion, and all other relevant
filings, the Court recommends the Motion be
DENIED to the extent asserted under
Appellate Rule 4(b); and, to the extent Defendant's
Letter Motion is a request for an extension of the one year
deadline to file a 2255 request for relief it should be
docketed for consideration in Defendant's related case:
Cause No. 4:18cv231.
20, 2016, Defendant pleaded guilty without a plea agreement
to possession of a firearm by a felon, in violation of Title
18 U.S.C. § 922(g) [Dkt. 22]. On January 10, 2017, the
Court sentenced Defendant to 51 months of imprisonment in the
Bureau of Prisons [Dkt. 34]. On January 13, 2017, the
criminal judgment was entered on the docket. On January 31,
2018, over a year later, the present motion was filed [Dkt.
39]. Therein, Defendant requests a thirty (30) to forty-five
(45) day extension of time to file his “appeal.”
Id. Defendant asserts that he is entitled to this
relief because his prison was on institutional lockdown from
December 8, 2017 until January 3, 2018.
to Rule 4(b) of the Federal Rules of Appellate Procedure,
Defendant had 14 days to file timely notice of appeal from
entry of judgment. Fed. R. App. P. 4(b)(1)(A). A judgment is
entered for the purposes of Rule 4(b) when it is entered on
the criminal docket. Fed. R. App. P. 4(b)(6). Upon a finding
of “excusable neglect” or “good cause,
” section 4 of Rule 4(b) permits a district court, with
or without motion, to extend the time to file notice of
appeal for a period not to exceed 30 days from the expiration
of time otherwise prescribed in Rule 4(b). Fed. R. App. P.
4(b)(4). However, district courts cannot extend such time to
file beyond the time period prescribed in Rule 4(b).
Therefore, if a defendant does not request an extension until
after the 30-day extension period has expired, the district
court's power to act is limited. United States v.
Leijano-Cruz, 4733d. 571 (5th Cir. 2006); Balderrama
v. United States, EP 13-CR-925, 2015 WL 12942489, *2, n.
13-14 (W.D. Tex. May 28, 2015) (Order ECF No. 83, Jan. 15,
acknowledges that he did not timely file an appeal [Dkt. 39].
Defendant's notice of appeal was not filed within
fourteen days after entry of judgment. Moreover,
Defendant's motion for extension was not filed within
thirty days of the expiration of the appeal period as
required by Rule 4(b). See United States v.
Vivar-Villarreal, 364 Fed.Appx. (5th Cir. 2010) (citing
United States v. Leijano-Cruz, 4733d. 571 (5th Cir.
2006)). As such, the Court lacks the power to grant Defendant
relief under Appellate Rule 4(b).
the Court concludes that Defendant's pending request for
extension of time to appeal should be construed as a request
for an extension of the one year deadline to file a §
2255 request for relief and should be docketed in
Defendant's related civil case: Cause No. 4:18cv231. On
April 2, 2018, Defendant filed a motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 [Dkt.
41; Civ. 4:148cv231 Dkt. 1].
one-year limitations period of the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), as
codified in 28 U.S.C. § 2255, is not jurisdictional and,
therefore, is subject to equitable tolling. United States
v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002). “The
doctrine of equitable tolling preserves a plaintiff's
claims when strict application of the statute of limitations
would be inequitable.” United States v.
Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (per
curiam) (internal quotations omitted). Thus, a district court
has the discretion to toll the AEDPA limitations period where
it would be unconscionable to enforce the limitation.
order to satisfy his burden, Defendant “must show
‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way' of timely filing his § 2255 motion.”
United States v. Petty, 530 F.3d 361, 365 (5th Cir.
2008) (quoting Lawrence v. Florida, 549 U.S. 327,
336 (2007)). Equitable tolling “is permitted only in
‘rare and exceptional circumstances.'”
United States v. Redd, 562 F.3d 309 (5th Cir. 2009)
(quoting Petty, 530 F.3d at 364). “Equitable
tolling applies principally where the plaintiff is actively
misled by the defendant about the cause of action or is
prevented in some extraordinary way from asserting his
rights.” Patterson, 211 F.3d at 930 (internal
quotations omitted). Defendant bears the burden of
establishing that equitable tolling is appropriate.
Petty, 530 F.3d at 365.
to equitably toll the limitations period turns on the facts
and circumstances of each case.” Petty, 530
F.3d at 364. In describing the nature of the circumstances
warranting equitable tolling, the Fifth Circuit has quoted
the Fourth Circuit. “[E]quitable tolling of the
AEDPA's one year limitation period is reserved for those
rare instances where-due to circumstances external to the
party's own conduct-it would be unconscionable to enforce
the limitation period against the party and gross injustice
would result.” Petty, 530 F.3d at 365 (quoting
Minter v. Beck, 230 F.3d 663, 666-67 (4th Cir.
support of his request for extension, Defendant cites a
prison lockdown lasting from December 8, 2017 to January 3,
2018. Generally, prison lockdowns which occur during the one
year period do not justify equitable tolling. United
States v. Saenz-Lopez, slip op., No. 3:08-CV-1601-M,
2009 WL 453932, at *3 (N.D. Tex. Feb. 23, 2009) (holding that
a lockdown which temporarily deprived inmates of use of the
law library did not prevent the movant from timely filing of
a § 2255 motion). See also Akins v. United
States, 204 F.3d 1086, 1090 (11th Cir.) (holding that a
lockdown reasonably related to legitimate penological
interests is not an unconstitutional impediment to the timely
filing of a § 2255 motion, where the movant had more
than seven months prior to lockdown to draft and file his
motion), cert. denied, 531 U.S. 971 (2000);
Perry v. Vaughn, Civ. A. No. 02-839, 2003 WL
22391236, at *4 (E.D. Pa. Oct. 17, 2003) (holding that a
prison lockdown and restriction of library access alone do
not constitute extraordinary circumstances); Aguirre v.
White, No. C 98-3723, 1999 WL 155694, at *2 (N.D. Cal.
Mar. 12, 1999) (finding that 180 days of lockdown and limited
library access did not support equitable tolling absent
evidence that the lockdown prevented the timely filing of the
§ 2255 motion). However, where the lockdown occurs close
in time to the AEDPA deadline, and inhibits or prevents
submission of the 2255 motion, a court may find that the
lockdown prevented the timely filing of a § 2255 motion.
See Munnerlyn v. United States, slip op., No.
1:08-cv-229, 2009 WL 1362387, at *4-5 (S.D. Ohio May 13,
2009) (indicating that the denial of access to the mail may
prevent the timely filing of a § 2255 motion and warrant
equitable tolling); Brooks v. Olivarez, No. 98-134,
1998 WL 474160, at *2 n. 2 (N.D. Cal. Aug. 5, 1998)
(indicating that where a lockdown or library closure very
near the deadline prevents the timely filing of a § 2255
motion equitable tolling may be justified).
facility at which Defendant is housed was in
“institutional lockdown” from December 8, 2017
through January 3, 2018 [Dkt. 39 at 1-2]. Defendant's
deadline to file a § 2255 motion expired on January 13,
2018 [see Dkts. 35; 39]. First, Defendant did not
complete and submit his § 2255 petition until April 2,
2018 [Dkt. 48], more than three months after lockdown was
lifted and more than ninety (90) days after the deadline.
Moreover, Defendant did not file the instant request for
extension until two weeks after the deadline and over twenty
days after the lockdown ended. Defendant further fails to
allege that he has been vigorously researching or preparing
his § 2255 motion and that, but for the lockdown, he
would have timely filed his motion. At present, the facts do
not support the conclusion that the lockdown prevented
Defendant from timely filing his § 2255 motion.
Defendant also offers no explanation for failing to file his
petition during the first eleven months of the limitations
period, i.e. between January 2017 and December 2017. See
Coppin v. United States, 3:10-CR-345-K(1), 2018 WL
1122175, at *4 (N.D. Tex. Mar. 1, 2018) (finding a series of
lockdowns did not constitute an extraordinary circumstance
which prevented Defendant from filing § 2255 motion);
United States v. Ramirez, CRIM.B-07-041-1, 2010 WL
837446, at *4 (S.D. Tex. Mar. 4, 2010) (“Thus, the
Court notes that Ramirez had many months, before the
lockdown, in which to complete his § 2255 motion, but
failed to file any version of a request for relief. From this
it appears clear that the failure to timely file is not
accurately attributable to the lockdown.”). However,
before dismissing Defendant's 2255 motion as untimely
Defendant should be permitted an opportunity to respond and
to offer additional explanation as to the timeliness of his
foregoing reasons, the Court recommends the Motion be
DENIED to the extent asserted under
Appellate Rule 4(b) and be docketed for consideration in
Defendant's related case: Cause No. 4:18cv231. The Court
further recommends that Defendant be permitted an opportunity
to respond and ...