United States District Court, E.D. Texas
MEMORANDUM ORDER OVERRULING MOVANT'S OBJECTIONS
AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
A. CRONE UNITED STATES DISTRICT JUDGE.
Todd Alley, a federal inmate currently confined at the Smith
County Jail in Tyler, Texas, proceeding pro se,
brought this motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255.
court referred this matter to the Honorable Zack Hawthorn,
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
court. The magistrate judge recommends that the motion be
dismissed as barred by limitations.
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record, pleadings and all available evidence. Movant
filed objections to the magistrate judge's Report and
Recommendation. This requires a de novo review of
the objections in relation to the pleadings and the
applicable law. See Fed. R. Civ. P. 72(b).
careful consideration, the court concludes movant's
objections are without merit. Movant contends he is actually
innocent of the charge for which he was convicted. Movant
states he is currently confined in the Smith County Jail on a
bench warrant from the Federal Medical Center in Fort Worth,
Texas. Movant asserts he is not provided access to the law
library at the Smith County Jail.
extent movant's objections may be liberally interpreted
as a request for equitable tolling, such request is without
merit in this case. Movant challenges a conviction received
in the Eastern District of Texas on September 30, 1998.
However, movant has made no attempt to explain the excessive
delay in filing a motion to vacate while in federal custody
prior to his confinement at the Smith County Jail.
the statutory limitations period is subject to equitable
tolling in appropriate cases. See Holland v.
Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 2560, 177
L.Ed.2d 130 (2010); United States v. Jackson, 470
Fed.Appx. 324 (5th Cir. 2012). “[A] petitioner is
entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland, 560 U.S. at 649.
Holland defines “diligence” for these
purposes as “reasonable diligence, not maximum feasible
diligence.” Id., at 653. “[E]quity is
not intended for those who sleep on their rights.”
Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010).
has failed to assert any sufficient factual basis supporting
a claim he diligently pursued his rights and could not have
discovered his claims earlier due to some extraordinary
circumstance. Neither proceeding pro se, having
limited access to a law library, nor lacking knowledge of
filing deadlines case serve as a basis for equitable tolling
as they are not a “rare and exceptional”
circumstance of prison life. See Felder v. Johnson,
204 F.3d 168, 170 (5th Cir. 2000). A pro se
prisoner's ignorance of the law of habeas corpus is
likewise insufficient to invoke equitable tolling.
Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir.
2002). Further, movant fails to assert he diligently pursued
his rights during the previous twenty years when he was not
subjected to the difficulties now alleged. Accordingly,
equitable tolling is not warranted, and the motion to vacate
is barred by limitations.
movant asserts this conviction does not belong to him and
should be removed from his record. Such a claim challenges
the authority of the Bureau of Prisons to confine him or to
issue a detainer for his return from the Smith County Jail.
However, a challenge to the fact or duration of his
confinement must be brought in a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. See Preiser v.
Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36
L.Ed, 2d 439 (1973). Therefore, movant's objections
should be overruled.
the movant is not entitled to the issuance of a certificate
of appealability. An appeal from a judgment denying a motion
under section 2255 may not proceed unless a judge issues a
certificate of appealability. See 28 U.S.C. §
2253; Fed. R. App. P. 22(b). The standard for granting a
certificate of appealability, like that for granting a
certificate of probable cause to appeal under prior law,
requires the movant to make a substantial showing of the
denial of a federal constitutional right. See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also
Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making
that substantial showing, the movant need not establish that
he should prevail on the merits. Rather, he must demonstrate
that the issues are subject to debate among jurists of
reason, that a court could resolve the issues in a different
manner, or that the questions presented are worthy of
encouragement to proceed further. See Slack, 529
U.S. at 483-84. Any doubt regarding whether to grant a
certificate of appealability is resolved in favor of the
movant, and the severity of the penalty may be considered in
making this determination. See Miller v. Johnson,
200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531
U.S. 849 (2000).
the movant has not shown that any of the issues raised by his
claims are subject to debate among jurists of reason. The
factual and legal questions advanced by the movant are not
novel and have been consistently resolved adversely to his
position. In addition, the questions presented are not worthy
of encouragement to proceed further. Therefore, the movant
has failed to make a sufficient showing to merit the issuance
of a certificate of appealability. Accordingly, a certificate
of appealability shall not be issued.
Movant's objections are OVERRULED. The
findings of fact and conclusions of law of the magistrate
judge are correct, and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in