Bell v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RONALD BELL,

Petitioner

v. Case No. 8:13-cr-385-T-33AEP

8:20-cv-1695-T-33AEP

UNITED STATES OF AMERICA,

Respondent

______________________________/

ORDER

This matter is before the Court upon consideration of

Ronald Bell’s pro se 28 U.S.C. § 2255 Motion to Vacate, Set

Aside, or Correct Sentence (Civ. Doc. # 1; Crim. Doc. # 53),

filed on July 20, 2020. The United States of America moved to

dismiss the Motion as untimely on September 23, 2020. (Civ.

Doc. # 7). Bell did not respond to the government’s motion,

and the time to do so has lapsed. For the reasons that follow,

the Court dismisses Bell’s Motion as untimely.

I. Background

In 2013, a grand jury returned a six-count indictment

that charged Bell with distributing cocaine and marijuana and

possessing a firearm after having been convicted of multiple

felonies. (Crim. Doc. # 1). Pursuant to a plea agreement,

Bell pled guilty to the firearm offense, a violation of 18

U.S.C.§§ 922(g)(1) and 924(e), and the United States

dismissed the remaining charges. (Crim. Doc. # 20).

Magistrate Judge Thomas B. McCoun III presided over the change

of plea hearing, and on January 8, 2014, submitted a Report

and Recommendation to this Court regarding the plea

agreement. (Crim. Doc. # 23). This Court subsequently

accepted the plea and sentenced Bell to 188 months’

imprisonment on June 30, 2014. (Crim. Doc. ## 24, 32). Bell

did not file a direct appeal of his conviction.

II. Discussion

In his Motion, Bell claims that Judge McCoun “failed to

inform the petitioner that he ha[d] 14 days to file an

objection to the Magistrate’s Report and Recommendation.”

(Civ. Doc. # 1). The United States argues that Bell’s Motion

should be dismissed as untimely, and that Judge McCoun clearly

warned Bell that he had fourteen days to file an objection.

(Civ. Doc. # 7).

A. Timeliness

The one-year statute of limitations for filing a motion

under Section 2255 begins to run from the latest of: (1) the

date on which the judgment of conviction becomes final; (2)

the date any unconstitutional government impediment to the

movant’s motion is removed; (3) the date on which the right

asserted was initially recognized by the Supreme Court; or

(4) the date on which the facts supporting the claim or claims

could have been discovered through the exercise of due

diligence. 28 U.S.C. § 2255(f); Jones v. United States, 304

F.3d 1035, 1037-38 (11th Cir. 2002).

Bell has not alleged the existence of any

unconstitutional government impediment to his Motion that

prevented him from timely filing his Motion as required by

Section 2255(f)(2). Nor does Bell raise any newly recognized

right as required by Section 2255(f)(3), or any new facts he

discovered through the exercise of due diligence as required

by Section 2255(f)(4). Accordingly, only Section 2255(f)(1)

is applicable.

Bell’s judgment of conviction became final on July 15,

2014, when the time to file a direct appeal expired. See Adams

v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999)

(“[W]here a defendant does not pursue a direct appeal, the

conviction becomes final when the time expires for filing a

direct appeal.”). Therefore, Bell had one year from that date,

through July 15, 2015, to file a timely Section 2255 motion.

But Bell’s Motion was not filed until July 20, 2020, five

years after his conviction became final. Accordingly, Bell’s

Motion is untimely under 28 U.S.C. § 2255(f).

Unless equitable tolling applies, the Motion is subject

to dismissal as time-barred. See Warmus v. United States, 253

F. App’x 2, 5-6 (11th Cir. 2007) (holding that a Section 2255

motion filed more than one year after movant’s conviction

becomes final is “subject to dismissal as time-barred”).

B. Equitable Tolling

In certain situations, the statute of limitations for

motions under Section 2255 can be equitably tolled. Outler v.

United States, 485 F.3d 1273, 1280 (11th Cir. 2007).

“Equitable tolling is only available if the petitioner

establishes (1) extraordinary circumstances and (2) due

diligence.” Id. Indeed, “[e]quitable tolling is an

extraordinary remedy and is applied sparingly.” Id. The

movant “bears a strong burden to show specific facts to

support his claim of extraordinary circumstances and due

diligence.” Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir.

2008).

Here, Bell has not shown the existence of any

“extraordinary circumstances” warranting equitable tolling.

Bell asserts in his Motion that the one-year statute of

limitations does not apply because the magistrate judge

failed to inform him of the fourteen-day period to file an

objection to the report and recommendation. (Civ. Doc. # 1 at

12). Even if such a failure could constitute an extraordinary

circumstance, the record negates this claim. Judge McCoun

unambiguously warned Bell that “[f]ailure to file written

objections . . . within fourteen (14) days from the date of

its service bar[red] an aggrieved party from attacking [the]

Report and Recommendation before the assigned United States

District Judge.” (Crim. Doc. # 23). Despite his assertions to

the contrary, no extraordinary circumstances justify

equitable tolling.

Accordingly, because Bell has failed to show that his

Section 2255 Motion was filed within the applicable statute

of limitations or that equitable tolling applies, the Motion

is due to be dismissed as time-barred pursuant to 28 U.S.C.

§ 2255(f).

III. Evidentiary Hearing

“Whether to hold an evidentiary hearing on equitable

tolling is committed to the sound discretion of the district

court.” Spears v. Warden, 605 F. App’x 900, 905 (11th Cir.

2015). The movant bears the burden of establishing the need

for an evidentiary hearing. Chavez v. Sec’y Fla. Dep’t of

Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). A court should

not accept “speculative and inconcrete claims” as the basis

to order a hearing. Id. (citing Dickson v. Wainwright, 683

F.2d 348, 351 (11th Cir. 1982)).

No evidentiary hearing is required here because Bell’s

allegations are insufficient to establish that his Motion is

timely or to warrant equitably tolling the statute of

limitations.

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Bell has failed to make a substantial

showing of the denial of a constitutional right as required

by 28 U.S.C. § 2253(c)(2). Nor will the Court authorize Bell

to proceed on appeal in forma pauperis because such an appeal

would not be taken in good faith. See 28 U.S.C. § 1915(a)(3).

Bell shall be required to pay the full amount of the appellate

filing fee pursuant to Section 1915(b)(1) and (2).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) The United States of America’s Motion to Dismiss (Civ.

Doc. # 7) is GRANTED.

(2) Ronald Bell’s pro se 28 U.S.C. § 2255 Motion to Vacate,

Set Aside, or Correct Sentence (Civ. Doc. # 1; Crim.

Doc. # 53) is DISMISSED.

(3) The Clerk is directed to enter judgment in favor of the

United States and thereafter CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this

26th day of October, 2020.

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE