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Robinson v. United States

United States District Court, N.D. Texas, Dallas Division

March 8, 2019

Cornelius Delshun Robinson, # 84797-379, Movant,
v.
United States of America, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Cornelius Delshun Robinson's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 was referred to the United States Magistrate Judge for case management, including findings and a recommended disposition. For the reasons outlined here, the Section 2255 motion should be DISMISSED WITH PREJUDICE as time barred.[1]

         I. BACKGROUND

         In 2015, Robinson pled guilty to conspiracy to distribute a controlled substance, and on March 24, 2017, was sentenced to 120 months' imprisonment and a three-year term of supervised release. Crim. Doc. 925. He did not file a direct appeal and, on June 20, 2018, filed this pro se Section 2255 motion. Doc. 2. As it appeared his Section 2255 Motion was time barred, the Court twice directed Robinson to file a response regarding the application of the one- year limitations period, which he has now done. Doc. 3; Doc. 4; Doc. 5; Doc. 6. Based on Robinson's Response and the other relevant pleadings, however, he cannot overcome the limitations bar.

         II. ANALYSIS

         A. One-Year Statute of Limitations

          The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for federal inmates seeking post-conviction relief under 28 U.S.C. § 2255, which the Court may consider sua sponte after providing notice and an opportunity to respond. See28 U.S.C. § 2255(f); cf. Day v. McDonough, 547 U.S. 198, 209-10 (2006) (addressing a similar provision applicable to state habeas petitions under 28 U.S.C. § 2254). Robinson does not allege any facts that could trigger a starting date under Sections 2255(f)(2)-(4), so the limitations period began to run when his judgment of conviction became final. See Section 2255(f)(1).

         Here, the Criminal Judgment was entered on March 27, 2017. See Crim. Doc. 925 and Notice of Electronic Filing. It became final on April 10, 2017-when the time to file a direct appeal expired. See Clay v. United States, 537 U.S. 522, 525 (2003) (holding that a judgment becomes final when the time expires to seek direct review of the conviction); see also Fed. R. App. P. 4(b)(1)(A)(i) (providing 14 days to appeal a criminal judgment). Thus, Robinson had one year from that date-or until April 10, 2018-to timely file his Section 2255 motion.

         Robinson's Section 2255 motion was not filed until June 20, 2018, however. He simultaneously filed a pleading titled Motion for Case Status Update (“Status Update”), which is dated May 10, 2018, but not sworn under penalty of perjury. Doc. 2 at 1. In his Status Update, Robinson averred that “on 2/15/18 [he] sent in [his] § 2255 [motion], ” but has “not heard back from the court on what [he] next need[s] to do.” Doc. 2 at 2. Robinson also enclosed “his copy” of a Section 2255 motion, which indicates it was executed under penalty of perjury on February 15, 2018. Doc. 2 at 7. Under the prison mailbox rule-first recognized in Houston v. Lack, 487 U.S. 266, 270-71 (1988), and later codified in Rule 3(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts-an inmate's Section 2255 motion is deemed filed on the date that it is deposited “in the institution's internal mailing system” for filing. But to receive the benefit of that rule, Robinson was required to certify-under the penalty of perjury-“the date of deposit” and that “first-class postage has been prepaid.” See Section 2255 Rule 3(d).

         Robinson does not benefit from the prison mailbox rule. Neither his Status Update, nor the copy of the earlier-dated Section 2255 motion enclosed with it, certifies under penalty of perjury the date of mailing (i.e., deposit in the prison mailing system) or that Robinson pre-paid the first-class postage. Doc. 2 at 1-2, 7; see Section 2255 Rule 3(d). Moreover, his statute-of-limitations Response, though signed before a notary public, only states: “I had originally sent a 2255 in February and I never got a response or anything back.” Doc. 6 at 1. Robinson further avers: “I didn't know I was suppose[d] to certify a letter leaving here. When I send mail I just write ‘Legal Mail' on the envelope and send them. . . .I don't know what happened with my original § 2255 but it was never returned to me.” Id.[2]

         The United States Court of Appeals for the Fifth Circuit has “indicated that, as a general matter, the mailbox rule could be extended in situations where the prisoner could prove an attempted earlier mailing even though the pleading was never filed or received.” United States v. Nyamaharo, 514 Fed.Appx. 479, 480-81 (5th Cir. 2013) (per curiam) (citing Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009)). While the court in Stoot did not specify “the level of proof required to support such a finding, ” it cautioned that the petitioner must “‘diligently pursue his petition'” and that “‘[a] failure to inquire about a lost petition is strong evidence that the petition was, in fact, never sent.'” Id. (citing and quoting Stoot, 570 F.3d at 671-72).

         Here, Robinson has not met the burden of showing that his motion was delivered to prison officials for mailing before the limitations period expired. The Court twice granted him an opportunity to establish that his Section 2255 motion was deposited in the prison mail system in compliance with Rule 3(d). SeeDoc. 3 at 2-3 (directing Robinson to respond and noting he had not certified the date of deposit or that he had pre-paid for first-class postage under Rule 3(d)); Doc. 5 at 1-2 (restating Rule 3(d) requirements and permitting Robinson to “file all prison mail receipts and records, affidavits, declarations or other evidence . . . relevant to the issue of when his Section 2255 Motion was first deposited in the prison's internal mail system”). Yet, Robinson failed to provide evidence that his Section 2255 motion, although purportedly signed on February 15, 2018, was deposited in the prison mail before the limitations period elapsed on April 10, 2018. Doc. 6; cf. Windland v. Quarterman, 578 F.3d 314, 318 (5th Cir. 2009) (when a litigant has certified under penalty of perjury that his petition was deposited in the prison mailing system on a certain date, the petition is deemed filed on that date); see also Nyamaharo, 514 Fed.Appx. 479, 480-81 (5th Cir. 2013) (no reversible error in the district court's conclusion that the § 2255 motion was untimely where movant claimed-only after the magistrate judge found that his motion was untimely-that he had submitted an earlier § 2255 motion for mailing that was never filed).

         Robinson also did not diligently pursue his habeas rights. There were only a couple of months left in the one-year period when he purportedly signed his Section 2255 motion on February 15, 2018. It was, at best, imprudent of him to wait until near the deadline to attempt to file the petition. See Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010) (denying equitable tolling because petitioner waited first 10 and then 18 months to seek a status inquiry and had delayed seven months to file his state application). Also casting doubt on Robinson's version of events is the fact that the District Clerk's Office has no record of receiving the mailing that purportedly contained the February 15, 2018 motion, and yet, nearly a year later, Robinson has never suggested nor offered proof of it ever being returned to him as undelivered.

         Moreover, Robinson supposedly delayed until May 10, 2018-an additional two and one-half months after the supposed February 15, 2018 filing-before first inquiring about the status of his Section 2255 motion. Doc. 2 at 2. It is also implausible that more than a month expired between the date Robinson signed (and ...


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