Alston v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ANDRE ALSTON,

Petitioner,

v. Case No.: 3:21-cv-1150-MMH-MCR

3:13-cr-124-MMH-MCR

UNITED STATES OF AMERICA,

Respondent.

ORDER

Petitioner Andre Alston moves to vacate his conviction and sentence

under 28 U.S.C. § 2255. (Civ. Doc. 1, § 2255 Motion.)1 In 2015, Alston pleaded

guilty to one count of possession of a firearm by a convicted felon and was

sentenced to 15 years’ imprisonment under the Armed Career Criminal Act

(ACCA). See 18 U.S.C. §§ 922(g)(1), 924(e).2 Alston alleges prosecutorial

misconduct and violations of his Fifth Amendment right to due process, his

Sixth Amendment right to a speedy trial, and his right to the effective

1 “Civ. Doc. #” refers to docket entries in the § 2255 case, No. 3:21-cv-1150-MMH-MCR.

“Crim. Doc. #” refers to docket entries in the criminal case, No. 3:13-cr-124-MMH-MCR. Under

Castro v. United States, 540 U.S. 375 (2003), the Court construed the § 2255 Motion from a

motion seeking release from custody (Civ. Doc. 1; Crim. Doc. 171). (See Civ. Docs. 2, 4.)

2 Ordinarily, the maximum penalty for possession of a firearm by a convicted felon is ten

years in prison. 18 U.S.C. § 924(a)(2). But under the ACCA, for a person who violates § 922(g)

and who has three or more prior convictions “for a violent felony or a serious drug offense, or

both, committed on occasions different from one another,” the mandatory minimum penalty is

15 years in prison. Id., § 924(e)(1).

assistance of counsel. Alston also filed five motions for leave to amend his § 2255

Motion. (Civ. Docs. 14, 16, 18, 19, 22.) The government responded to the § 2255

Motion (Civ. Doc. 5, Response to § 2255 Motion) and to the first four motions for

leave to amend (Civ. Doc. 20, Response to Motions for Leave to Amend). Alston

replied to the government’s responses. (Civ. Doc. 6, Reply; Civ. Doc. 11,

Amended Reply; Civ. Doc. 21, Motion to Reply to Government’s Response to

Motions for Leave to Amend.) Thus, the case is ripe for a decision.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255

Proceedings3, the Court has considered the need for an evidentiary hearing and

determines that a hearing is unnecessary to resolve the motion. No evidentiary

hearing is required because Alston’s allegations are affirmatively contradicted

by the record, patently frivolous, or even if the facts he alleges are true, he still

would not be entitled to relief. Rosin v. United States, 786 F.3d 873, 877 (11th

Cir. 2015); see also Patel v. United States, 252 F. App’x 970, 975 (11th Cir.

2007).4

3 Rule 8(a) of the Rules Governing Section 2255 Proceedings expressly requires the Court

to review the record, including any transcripts and submitted materials, to determine whether

an evidentiary hearing is warranted before resolving a § 2255 motion.

4 The Court does not rely on unpublished opinions as binding precedent; however, they

may be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

I. Background

On June 20, 2013, a federal grand jury in the Middle District of Florida

indicted Alston on one count of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Crim. Doc. 1, Indictment.) The

government moved for (and obtained) a warrant for Alston’s arrest that same

day. (Crim. Docs. 2, 3.) At the time, Alston was in the custody of the Florida

Department of Corrections (“FDOC”). When he learned of the Indictment in

September 2013, Alston requested that he be brought before the Court to

address the charge under the Interstate Agreement on Detainers Act (IADA).

(See Crim. Doc. 19, Motion to Dismiss Indictment ¶ 6.) The United States

eventually brought Alston before the Court on June 30, 2014. (See Crim. Doc.

9, Minute Entry of Initial Appearance.)

Represented by the Federal Defender’s Office, Alston moved to dismiss

the Indictment based on a violation of his right to a speedy trial under the IADA.

See Motion to Dismiss Indictment ¶¶ 13–14; (see also Crim. Doc. 8, Pro Se

Motion to Dismiss). He argued that his right to a speedy trial was violated

because more than 180 days passed between the government’s receipt of his

demand under the IADA and when he finally appeared before the Court. After

a hearing on the motion (Crim. Doc. 34, Motion Hearing Transcript), the Court

declined to dismiss the Indictment (Crim. Doc. 36, Report and Recommendation

[R & R] on Motion to Dismiss; Crim. Doc. 38, Order Adopting R & R). The Court

reasoned that Alston’s right to a speedy trial was not violated because, although

the FDOC mailed a copy of Alston’s IADA demand to the Bureau of Alcohol,

Tobacco, and Firearms, a copy of the demand was not delivered to the United

States Attorney and the Court. See R & R on Motion to Dismiss Indictment at

8–12. Because Alston’s demand was not delivered to the proper authorities, the

demand never triggered the requirement under Section 2, Article III of the

IADA that Alston be brought to trial within 180 days of delivering the demand.

Instead, Alston had the right to be tried within 120 days of his arrival in the

Middle District of Florida (absent good cause shown), and that 120-day period

had not expired. See id. at 11. Thus, the Court denied the Motion to Dismiss the

Indictment. Order Adopting R & R (Crim. Doc. 38).

In June 2015, Alston (now represented by his third lawyer) pleaded guilty

under a written Plea Agreement. (See Crim. Doc. 87, Plea Agreement; Crim.

Doc. 123, Plea Transcript.) Alston admitted that in April 2013 in Palatka,

Florida, he sold a pistol with a scratched-off serial number to a confidential

source and an undercover detective for $150. Plea Transcript at 32–33. He also

admitted that, before possessing the firearm, he had been convicted of three

felonies (all in Florida): (1) the unlawful sale or delivery of a controlled

substance in 2001; (2) the sale of cocaine within 1,000 feet of a place of worship

or a convenience business in May 2008; and (3) the sale of cannabis within 1,000

feet of a public park in October 2008. Plea Agreement at 17–18; see also Plea

Tr. at 33–34. The Magistrate Judge who conducted the change-of-plea colloquy

reported that “[a]fter cautioning and examining the defendant under oath

concerning each of the subjects mentioned in Rule 11, I determined that the

guilty plea was knowledgeable and voluntary, and that the offense charged is

supported by an independent basis in fact containing each of the essential

elements of such offense.” (Crim. Doc. 89.) The Court accepted Alston’s guilty

plea and adjudicated him accordingly. (Crim. Doc. 96.)

Several months later, after moving to continue the sentencing hearing

five times, Alston moved to withdraw his guilty plea. (Crim. Doc. 125, Motion

to Withdraw Plea; Crim. Doc. 132, Supplemental Memorandum.) Alston alleged

that his first attorney, Maurice Grant of the Federal Defender’s Office, gave

ineffective assistance by failing to adequately question a witness at the hearing

on his Motion to Dismiss the Indictment and by failing to object to the Report

and Recommendation on the Motion to Dismiss. Alston also argued that his

second attorney, Wade Rolle, misadvised him that if he pleaded guilty he would

be relieved of the condition of pretrial release confining him to home detention,

freeing him to “work the streets” in an effort to earn a substantial assistance

reduction. The Court rejected the Motion to Withdraw the guilty plea,

explaining that the allegations against Mr. Grant did not affect the knowing

and voluntary nature of the guilty plea and that the allegations against Mr.

Rolle were refuted by the sworn statements Alston made during the change-of-

plea colloquy. (Crim. Doc. 134, Order Denying Motion to Withdraw Guilty Plea

at 9–12.)

Alston appeared before the Court for sentencing on November 28, 2016.

(Crim. Doc. 150, Sentencing Transcript.) A United States Probation Officer

recommended that Alston qualified to be sentenced under the ACCA based on

his prior convictions for the unlawful sale or delivery of a controlled substance,

the sale of cocaine within 1,000 feet of a place of worship or convenience

business, and the sale of cannabis within 1,000 feet of a public park. (Crim. Doc.

137, Presentence Investigation Report [PSR] ¶ 31.) According to the Probation

Officer, Alston’s guidelines sentencing range was 235 to 293 months in prison,

based on a total offense level of 33 and a Criminal History Category of VI. Id. ¶

107. Alston objected to the ACCA enhancement, arguing that the prior

conviction for the sale of cannabis within 1,000 feet of a public park should not

count as his third “serious drug offense.” Sentencing Tr. at 3–4. The Court

overruled that objection and determined Alston qualified to be sentenced under

the ACCA. Id. at 8–13. After addressing other objections, the Court accepted

the government’s recommendation to impose the mandatory minimum sentence

of 180 months (15 years) in prison, followed by five years of supervised release.

See id. at 21–25; (Crim. Doc. 144, Judgment).

Alston appealed his conviction and sentence. His appellate attorney

moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738

(1967). On August 18, 2017, after an independent review of the record, the

Eleventh Circuit Court of Appeals determined there were no arguable issues of

merit and affirmed Alston’s conviction and sentence. United States v. Alston,

696 F. App’x 479, 480 (11th Cir. 2017).

Alston did not petition the Supreme Court for certiorari review. As a

result, his conviction and sentence became final 90 days later, on November 16,

2017, when the time to petition for a writ of certiorari expired. See Clay v.

United States, 537 U.S. 522, 525 (2003) (“For the purpose of starting the clock

on § 2255’s one-year limitation period, we hold, a judgment of conviction

becomes final when the time expires for filing a petition for certiorari contesting

the appellate court’s affirmation of the conviction.”). Under 28 U.S.C. §

2255(f)(1), Alston had until November 16, 2018, to move to vacate his sentence.

II. Alston’s Post-Conviction Filings

In June 2018, Alston filed a one-page motion for the appointment of

counsel (Crim. Doc. 155, First Motion to Appoint Counsel) and a one-page

motion to extend the deadline to move to vacate his sentence under § 2255

(Crim. Doc. 156, Motion for Extension). In the Motion for Extension, Alston said

only that his appellate attorney had filed an Anders brief, that the deadline to

file a § 2255 motion was “coming up on August 18, 2018,” that he had “issues

he’s seeking to raise,” and that he “needs more time [and] counsel

representation [sic].” Id. The Court denied the two motions in a written order

entered on June 22, 2018. (Crim. Doc. 157, Order of June 22, 2018.)

Alston filed nothing again with the Court until March 2020, when he

renewed his motion to appoint counsel. (Crim. Doc. 159, Second Motion to

Appoint Counsel.) This time, he sought relief based on Rehaif v. United States,

139 S. Ct. 2191 (2019), alleged violations of his Fifth Amendment right to due

process and his Sixth Amendment right to a speedy trial, argued that his plea

was involuntary and his counsel was ineffective, and also complained about the

unfairness of the hearing on his Motion to Dismiss the Indictment. The Court

denied the motion. (Crim. Doc. 161.)

Meanwhile, Alston applied to the Eleventh Circuit for permission to file

a second or successive § 2255 motion, which the Eleventh Circuit denied as

unnecessary because he had not yet filed any § 2255 motion. (Crim. Doc. 160,

USCA Order.) Alston filed two more motions to appoint counsel in April 2020

(Crim. Docs. 162, 163), which the Court denied without prejudice in a single

order (Crim. Doc. 164). Alston appealed that order, but the Eleventh Circuit

dismissed the appeal because the order denying appointment of counsel was not

a final, appealable order. (Crim. Doc. 168, USCA Order Dismissing Appeal.)

Finally, on July 19, 20215, Alston filed the Motion seeking a release from

custody, which the Court later construed as a § 2255 Motion under Castro, 540

5 See Houston v. Lack, 487 U.S. 266, 276 (1988) (prison mailbox rule).

U.S. 375. (Civ. Doc. 1 at 8; Crim. Doc. 171 at 8.) In the construed § 2255 Motion,

Alston contends that: (1) his conviction violates the Fifth Amendment’s Due

Process Clause because on January 8, 2014––seven months after he was

indicted––the case number changed without him being notified of the new case

number and without the Indictment being resubmitted to a grand jury6; (2) his

Sixth Amendment right to a speedy trial was violated because the Court did not

bring him to trial within 180 days of him submitting a demand under the IADA;

(3) the hearing on his Motion to Dismiss the Indictment was unfair because his

attorney was ineffective, a government witness gave false testimony, the

prosecutor suborned perjury, the government withheld evidence, there was

judicial misconduct, a Rule 11 violation occurred, and the ruling was incorrect;

and (4) his sentence and detention are unlawful “because the Case [Number] he

is sentenced under is incorrect and invalid.” § 2255 Motion at 1–6. As relief,

Alston seeks release from custody and compensation for his alleged wrongful

6 The case number itself (3:13-cr-124) did not change. However, the judge code in the

case number did change. Prior to January 8, 2014, in light of a judicial vacancy on the Court,

this case was on an unassigned docket presided over by the undersigned. This assignment was

reflected in the judge code 3:13-cr-124-99MMH-MCR (see Crim. Doc. 1, Indictment). On

January 8, 2014, with the appointment of a new district judge, the Court eliminated the

unassigned docket and criminal cases on that docket were placed on the docket of the judge

that had been presiding over the case while it was on the unassigned docket. As such, the

judge code for the case was updated from 99MMH (unassigned MMH) to J-34 – 3:13-cr-124-J-

34MCR (the undersigned being the judge identified by judge code “J-34”). Importantly, the

charge in the Indictment did not change.

imprisonment.7 The government responds that the § 2255 Motion is untimely

because Alston filed it over a year after his conviction and sentence became

final, and that he attempts to relitigate the speedy trial matter. See Response

to § 2255 Motion at 3–4.

Alston then filed five motions for leave to amend the claims he raises here.

First, on July 13, 2022, he moved for leave to amend his § 2255 Motion to add

claims that he is entitled to relief from his ACCA sentence based on the new

rules of law announced in United States v. Jackson, 36 F.4th 1294 (11th Cir.)

(“Jackson I”), superseded by 55 F.4th 846 (11th Cir. 2022) (“Jackson II”), and

Williams v. United States, 142 S. Ct. 1439 (2022) (Mem.), and that he is entitled

to relief from his conviction based on the new rule of law announced in Rehaif

v. United States, 139 S. Ct. 2191 (2019), United States v. Minor, 31 F.4th 9 (1st

Cir. 2022) (“Minor I”), superseded by —— F.4th ——, 2023 WL 2624174 (1st

Cir. Mar. 24, 2023) (en banc) (“Minor II”), and Seabrooks v. United States, 32

F.4th 1375 (11th Cir. 2022). (Civ. Doc. 14, First Motion for Leave to Amend.)

Second, on August 7, 2022, he moved for leave to amend his § 2255 Motion to

add a claim for relief from his conviction based on the Fourth Circuit’s decision

in United States v. Heyward, 42 F.4th 460 (4th Cir. 2022). (Civ. Doc. 16, Second

7 Monetary compensation is not an available remedy under § 2255. If a petitioner shows

that his sentence is unlawful, the only available remedies are for the Court to “vacate and set

the judgment aside” and (1) “discharge the prisoner,” (2) “resentence him,” or (3) “grant a new

trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

Motion for Leave to Amend.) Third, on August 22, 2022, Alston moved for leave

to amend his § 2255 Motion to add claims that his conviction is unlawful and

his § 2255 Motion is timely because: (1) the Court violated his Sixth Amendment

right to counsel by denying his First Motion to Appoint Counsel in June 2018;

(2) the Court violated his Fifth Amendment right to due process by denying his

Motion for Extension of the deadline to file a § 2255 Motion; and (3) Alston was

never informed about when § 2255(f)’s limitations period would expire. (Civ.

Doc. 18, Third Motion for Leave to Amend.) Fourth, also on August 22, 2022,

Alston moved for leave to amend his Reply to the government’s Response to the

§ 2255 Motion, raising substantially the same arguments as set forth in his

Third Motion for Leave to Amend. (Civ. Doc. 19, Fourth Motion for Leave to

Amend.) Finally, on December 6, 2022, Alston moved for leave to submit “newly

discovered evidence” pertaining to the change in his case number and his IADA

demand. (Civ. Doc. 22, Fifth Motion for Leave to Amend.)

The government responded to the first four motions for leave to amend.

The government argues that the first two motions “simply cite court cases and

claim that Alston is entitled to the same relief” without providing any “support

or analysis as to why or how he is entitled to relief.” Response to Motions for

Leave to Amend at 1. The government argues that Alston’s attempt to raise a

claim based on Rehaif is time-barred because Rehaif was decided over a year

before Alston filed the First Motion for Leave to Amend, and that Alston’s claim

based on Rehaif (and related decisions in Heyward, Minor I, and Seabrooks)

fails on the merits anyway. Id. at 1–3. The government also argues that Jackson

I did not extend the limitations period under 28 U.S.C. § 2255(f)(3) because it

was an Eleventh Circuit decision rather than a Supreme Court decision, and

that Alston’s claim relying on Jackson I would fail on the merits anyway. Id. at

3–4. Next, the government turns to Alston’s argument based on Williams. Id. at

4–5. In doing so, the government construes Alston’s reference to Williams as

asserting an argument based on Wooden v. United States, 142 S. Ct. 1063

(2022), but asserts that Wooden “[a]rguably … did not create a newly recognized

right,” and “regardless, Alston’s [ACCA] qualifying convictions were committed

on occasions different from one another.” Id. at 5. Responding to the Third and

Fourth Motions for Leave to Amend, the government argues that Alston’s

contentions are meritless and urges the Court to deny the motions. Id. at 5–6.

The Court did not order the government to respond to the Fifth Motion for Leave

to Amend.

III. Discussion

Under Title 28, United States Code, § 2255, a person in federal custody

may move to vacate, set aside, or correct his sentence. Section 2255 permits

collateral relief on four grounds: (1) the sentence was imposed in violation of

the Constitution or laws of the United States; (2) the court lacked jurisdiction

to impose the sentence; (3) the imposed sentence exceeded the maximum

authorized by law; or (4) the imposed sentence is otherwise subject to collateral

attack. 28 U.S.C § 2255(a). Only jurisdictional claims, constitutional claims,

and claims of error that are so fundamentally defective as to cause a complete

miscarriage of justice will warrant relief through collateral attack. United

States v. Addonizio, 442 U.S. 178, 184–86 (1979); Spencer v. United States, 773

F.3d 1132, 1138 (11th Cir. 2014) (en banc) (“[A] district court lacks the authority

to review the alleged error unless the claimed error constitute[s] a fundamental

defect which inherently results in a complete miscarriage of justice.” (internal

quotation marks omitted)).

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a

federal prisoner may move to vacate, set aside, or correct his sentence within a

one-year limitations period. 28 U.S.C. § 2255(f). The limitations period runs

from the latest of:

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

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United

States is removed, if the movant was prevented from making a motion by

such governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

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

could have been discovered through the exercise of due diligence.

Id. The statute of limitations applies on a claim-by-claim basis. Zack v. Tucker,

704 F.3d 917, 918 (11th Cir. 2013). “Typically, the applicable triggering date is

‘the date on which the judgment of conviction becomes final.’” Beeman v. United

States, 871 F.3d 1215, 1219 (11th Cir. 2017) (quoting 28 U.S.C. § 2255(f)(1)).

Thus, the alternative trigger dates under §§ 2255(f)(2)–(4) tend to be the

exception.

A § 2255 movant “bears the burden to prove the claims in his § 2255

motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015); see also

Beeman, 871 F.3d at 1221–22 (11th Cir. 2017). Moreover, a § 2255 movant is

not entitled to a hearing, much less relief, “when his claims are merely

conclusory allegations unsupported by specifics or contentions that in the face

of the record are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551, 1559 (11th

Cir. 1991) (citation omitted).

A. The Construed § 2255 Motion

Alston’s § 2255 Motion is time-barred under AEDPA’s statute of

limitations. In the § 2255 Motion (construed from his motion for release from

custody), Alston challenges his conviction and sentence based on a change in

his case number, the alleged violation of his right to a speedy trial, allegations

about the unfairness of the hearing on his Motion to Dismiss the Indictment

(due to the ineffective assistance of counsel and prosecutorial misconduct), and

the validity of his sentence because of the change in the case number. See

generally § 2255 Motion. Each of these claims centers on facts that occurred in

2013 or 2014. Under the mailbox rule, Alston filed the § 2255 Motion on July

19, 2021. See id. at 8. However, his conviction and sentence became final more

than three years earlier, on November 16, 2017, when the 90-day period to file

a certiorari petition expired. See Clay, 537 U.S. at 525. As a result, the § 2255

Motion is untimely under § 2255(f)(1). Alston does not identify in the § 2255

Motion any impediment caused by government action that prevented him from

timely filing, § 2255(f)(2), a right that was newly recognized by the Supreme

Court and made retroactively applicable on collateral review, § 2255(f)(3), or

newly discovered facts supporting the claims that could not have been

discovered earlier through the exercise of due diligence, § 2255(f)(4).

In his Reply, Alston argues that the § 2255 Motion should not be time-

barred because he demonstrated “Constitutional Rights Violation[s],” “Newly

Discovered Evidence,” and “Subject Matter Jurisdictional Violation.” Reply

(Civ. Doc. 6) at 2. He does not elaborate on these assertions. In his Amended

Reply, Alston asserts that the § 2255 Motion was filed outside the one-year

limitations period because he had “just recently discovered[,] through due

diligence, the facts supporting this claim,” and that he was providing “his

affidavit and other exhibits as newly discovered evidence.” Amended Reply (Civ.

Doc. 11) at 2. But Alston did not attach any affidavit or exhibits. Assuming that

the exhibits he meant to attach were those included in the Fifth Motion for

Leave to Amend (Civ. Doc. 22; Civ. Docs. 22-1 through 22-5), those documents

are several years old and Alston fails to explain why he could not have

discovered them earlier with due diligence. Thus, Alston’s vague and conclusory

arguments are inadequate for him to meet his “burden to show that he filed his

[§ 2255] motion within one of the four one-year limitation periods.” Harris v.

United States, 737 F. App’x 974, 976 (11th Cir. 2018) (citing Rivers, 777 F.3d at

1316 (holding that the movant has the burden of proving his entitlement to

relief in a § 2255 proceeding)). And none of Alston’s conclusory arguments is

sufficient to equitably toll the limitations period or to invoke the actual

innocence exception.8

Alston also suggests that the § 2255 Motion is timely, or that the statute

of limitations does not apply, because the Court lacked subject matter

8 AEDPA’s statute of limitations is subject to equitable tolling, but it “is an extraordinary

remedy ‘limited to rare and exceptional circumstances and typically applied sparingly.’” Cadet

v. Fla. Dept. of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quoting Hunter v. Ferrell, 587

F.3d 1304, 1308 (11th Cir. 2009)). “To warrant that extraordinary remedy, a petitioner must

demonstrate ‘(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing.’” Id. (quoting

Holland v. Florida, 560 U.S. 631, 649 (2010)). “The burden of proving circumstances that

justify the application of the equitable tolling doctrine rests squarely on the petitioner.” San

Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011). Alston’s allegations fail to show (1)

that he was pursuing his rights diligently or (2) that an “extraordinary circumstance”

prevented him from timely filing.

Additionally, AEDPA’s statute of limitations can be overcome under the miscarriage of

justice (or actual innocence) exception. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). “To

invoke the miscarriage of justice exception to AEDPA’s statute of limitations, … a petitioner

‘must show that it is more likely than not that no reasonable juror would have convicted him

in the light of the new evidence.’” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

The new evidence must be “new reliable evidence––whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence––that was not

presented at trial.” Schlup, 513 U.S. at 324. Alston neither invokes the actual innocence

exception nor points to the requisite new reliable evidence.

jurisdiction over the charges brought against him. Reply at 2. True, challenges

to a court’s subject matter jurisdiction cannot be waived or procedurally

defaulted. United States v. Peter, 310 F.3d 709, 712–13 (11th Cir. 2002). But

that does not mean that a jurisdictional challenge cannot be time-barred.

Courts have “uniformly rejected” the contention that jurisdictional challenges

are exempt from AEDPA’s statute of limitations. Wallace v. United States, 981

F. Supp. 2d 1160, 1166 (N.D. Ala. 2013) (internal quotation marks and citation

omitted) (collecting cases); see also Barreto-Barreto v. United States, 551 F.3d

95, 100 (1st Cir. 2008) (jurisdictional challenges “are not exempt from § 2255’s

filing deadline”). “The habeas statute specifically includes jurisdictional

challenges in its enumeration of grounds for relief from sentence that may be

asserted under § 2255.” Williams v. United States, 383 F. App’x 927, 929 (11th

Cir. 2010); see also 28 U.S.C. § 2255(a) (“A [federal] prisoner in custody ...

claiming the right to be released upon the ground that ... the court was without

jurisdiction to impose such sentence ... may move the court [for relief].”).

Nevertheless, Congress imposed a one-year statute of limitations on all motions

to vacate. 28 U.S.C. § 2255(f). “Nothing in the statutory language suggests that

jurisdictional challenges are exempt from the one-year limitations period that

applies to ‘a motion under this section.’” Williams, 383 F. App’x at 929–30

(quoting § 2255(f)). Thus, Alston cannot avoid the statute of limitations by

asserting a jurisdictional defect.9

Alston’s contention that the statute of limitations does not apply because

his claims are based on constitutional violations is equally unavailing. As with

jurisdictional claims, constitutional claims are among the grounds for relief

listed under § 2255(a), yet Congress imposed a one-year limitations period

without suggesting that constitutional claims are exempt from the statute of

limitations, see § 2255(f).

Last, Alston asserts that his § 2255 Motion is timely because of “Newly

Discovered Evidence,” but the facts supporting the claims in the § 2255 Motion

were known or available to Alston when his conviction and sentence became

final, if not before then. Indeed, in his Second Motion to Appoint Counsel, filed

in March 2020, Alston outlined the same claims that are in his § 2255 Motion.

(Crim. Doc. 159). Although the Second Motion to Appoint Counsel itself was

filed outside the limitations period, Alston filed it more than a year before he

filed the § 2255 Motion, showing he has long been aware of the facts allegedly

supporting his claims. Alston fails to show that he could not have discovered

9 Alston’s jurisdictional claim is meritless. “So long as the indictment charges the

defendant with violating a valid federal statute as enacted in the United States Code, it alleges

an ‘offense against the laws of the United States’ and, thereby, invokes the district court’s

subject-matter jurisdiction.” United States v. Brown, 752 F.3d 1344, 1354 (11th Cir. 2014)

(citation omitted). The Indictment charged Alston with violating 18 U.S.C. §§ 922(g)(1) and

924(e)––valid federal criminal statutes enacted in the United States Code––by unlawfully

possessing a firearm as a convicted felon. (Crim. Doc. 1.) So the Indictment did all that was

necessary to invoke the Court’s subject matter jurisdiction.

the facts earlier through due diligence, see § 2255(f)(4), or that his “Newly

Discovered Evidence” is the type of “new reliable evidence” that likely would

prevent any reasonable juror from convicting him for purposes of the actual

innocence exception (especially considering that he pleaded guilty), see Schlup,

513 U.S. at 324, 327.

In his Third and Fourth Motions for Leave to Amend, Alston suggests

another reason why his § 2255 Motion should be considered timely. He argues

that he is a layman in the law, that the Court did not appoint counsel despite

his requests, that he did not know when the limitations period expired, and that

when the Court denied his Motion for Extension in June 2018, the Court did

not inform him he was still within § 2255(f)’s one-year limitations period. Third

Motion for Leave to Amend (Civ. Doc. 18) at 2; Fourth Motion for Leave to

Amend (Civ. Doc. 19) at 2. The Court construes this argument as a request to

invoke equitable tolling. To warrant that “rare” and “extraordinary remedy,”

Alston “must demonstrate ‘(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way and prevented

timely filing.’” Cadet, 853 F.3d at 1221 (quoting Holland, 560 U.S. at 649). “The

burden of proving circumstances that justify the application of the equitable

tolling doctrine rests squarely on the petitioner.” San Martin, 633 F.3d at 1268.

Being pro se, untrained in the law, and unrepresented by counsel is not

an “extraordinary circumstance” that prevents timely filing; if anything, it is

the norm for § 2255 movants, most of whom manage to timely file their motions.

Indeed, the Eleventh Circuit has unequivocally stated “we have not accepted a

lack of a legal education and related confusion or ignorance about the law as

excuses for a failure to file in a timely fashion.” Perez v. Florida, 519 F. App’x

995, 997 (11th Cir. 2013) (citing Rivers v. United States, 416 F.3d 1319, 1323

(11th Cir. 2005) (stating in the context of a § 2255 proceeding that lack of an

education was no excuse for delayed efforts to vacate a state conviction)).

Rather, pro se litigants “are deemed to know of the one-year statute of

limitations.” Outler v. United States, 485 F.3d 1273, 1282 n.4 (11th Cir. 2007).

Nor can Alston fault the Court for his § 2255 Motion being untimely

because the Court did not tell him whether he was still within AEDPA’s

limitations period when it denied his June 2018 Motion for Extension of §

2255(f)’s deadline. “District judges have no obligation to act as counsel or

paralegal to pro se litigants,” and “[r]equiring district courts to advise a pro se

litigant [about statute-of-limitations calculations] would undermine district

judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231

(2004). Moreover, when Alston filed the Motion for Extension, he believed he

had two more months to move for relief, stating that the deadline to file a § 2255

motion was “coming up on August 18, 2018.” Motion for Extension at 1. He was

mistaken in his calculation, but only in that he thought the deadline was three

months earlier than it actually was. Nevertheless, despite his own belief that

the deadline to file a § 2255 motion was August 18, 2018, Alston filed nothing

again in this Court until March 2020, and he failed to file anything resembling

a § 2255 motion until July 2021, which precludes a finding of due diligence.

Thus, Alston fails to show that he can benefit from equitable tolling to save his

§ 2255 Motion.

B. First Motion for Leave to Amend (Civ. Doc. 14)

On July 13, 2022, Alston moved for leave to amend his § 2255 Motion to

add a claim for relief based on the Supreme Court’s decision in Rehaif, 139 S.

Ct. 2191, and two appeals court decisions applying Rehaif: Minor I, 31 F.4th 9,

superseded by Minor II, —— F.4th ——, 2023 WL 2624174, and Seabrooks, 32

F.4th 1375. Alston also seeks to add a claim for relief from his ACCA sentence

based on the Eleventh Circuit’s decision in Jackson I, 36 F.4th 1294, superseded

by Jackson II, 55 F.4th 846, and the Supreme Court’s memorandum decision in

Williams, 142 S. Ct. 1439 (granting writ of certiorari, vacating the judgment

below, and remanding based upon the decision in Wooden, 142 S. Ct. 1063).

Under Rule 15 of the Federal Rules of Civil Procedure (“Rule(s)”), if more

than 21 days have passed since service of the initial pleading or since service of

a responsive pleading, “a party may amend its pleading only with the opposing

party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court

should freely give leave when justice so requires.” Id. That said, a district court

may deny leave to amend if it would be futile, such as when an amended claim

would be subject to dismissal under a statute of limitations. Boyd v. Warden,

Holman Corr. Facility, 856 F.3d 853, 864 (11th Cir. 2017); see also Oliveiri v.

United States, 717 F. App’x 966, 967 (11th Cir. 2018) (“[G]ranting leave to

amend would have been futile because the new claim was untimely and did not

‘relate back’ to the two claims that he initially (and timely) presented in his §

2255 motion.”).10

1. Rehaif, Seabrooks, and Minor I

On June 21, 2019, the Supreme Court decided Rehaif, where it held that

to convict a defendant of unlawful possession of a firearm, the government must

prove not only “that the defendant knew he possessed a firearm,” but also that

he knew he belonged to one of the nine categories of persons that § 922(g)

prohibits from possessing a firearm. 139 S. Ct. at 2194, 2200. The Supreme

Court reasoned that since § 924(a)(2) provides that anyone who “knowingly

violates” § 922(g) will be fined or imprisoned for up to 10 years, the word

“knowingly” applies to both the status element and the possession element. Id.

at 2194, 2195–96. In so holding, the Supreme Court overturned the law of the

Eleventh Circuit (and several other circuits), which had held that the

government did not have to prove the defendant knew of his prohibited status.

10 Because the claims in the initial § 2255 Motion are untimely, it is unnecessary to

consider whether the claims in the motions for leave to amend relate back to the original

pleading under Rule 15(c). See Mayle v. Felix, 545 U.S. 644, 657 (2005) (observing with

approval that most courts “allow relation back only when the claims added by amendment

arise from the same core facts as the timely filed claims….” (emphasis added)).

See, e.g., United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997).

In Seabrooks, the Eleventh Circuit concluded that Rehaif announced a

new substantive rule of law that applies retroactively on collateral review to

initial § 2255 motions. Seabrooks, 32 F.4th at 1383. In that case, the Eleventh

Circuit vacated Seabrooks’s conviction for possession of a firearm by a convicted

felon, evidently on an aiding-and-abetting theory, because at trial the

government failed to present evidence that Seabrooks knew that the person he

helped possess a firearm was a felon and the evidence of principal liability was

weak. Id. at 1384–85. And in Minor I, the First Circuit applied Rehaif to vacate

the conviction of a defendant found guilty under § 922(g)(9) of unlawful

possession of a firearm by a person convicted of a “misdemeanor crime of

domestic violence.” There, the state prosecutor in the prior misdemeanor case

allegedly misadvised the defendant he could still possess a firearm if he pleaded

guilty to simple assault. Minor I, 31 F.4th at 12–13. With some modifications,

the en banc First Circuit reached the same conclusion on rehearing. Minor II,

—— F.4th ——, 2023 WL 2624174, at *1.

Because, in Rehaif, the Supreme Court announced a new rule of law

“made retroactively applicable to cases on collateral review,” Rehaif is the type

of decision that can extend the one-year limitations period under 28 U.S.C. §

2255(f)(3). But Alston did not file the First Motion for Leave to Amend until

July 13, 2022, over three years after Rehaif was decided. Thus, his Rehaif claim

is untimely. And while Alston filed the First Motion for Leave to Amend within

a year of Seabrooks and Minor I being decided, those are appeals court

decisions, which unlike Supreme Court decisions do not extend the limitations

period under § 2255(f)(3). Under these circumstances, Alston’s proposed

challenge to his conviction based on Rehaif, Seabrooks, and Minor I is

untimely.11

In any event, a challenge to Alston’s § 922(g) conviction based on Rehaif

(or Seabrooks and Minor I) lacks merit. A Rehaif error—such as an indictment’s

failure to allege that the defendant knew he was a convicted felon, or a plea

colloquy’s failure to advise a defendant that knowledge of his status as a felon

is an element of violating § 922(g)(1)—is a nonstructural error subject to plain

error or harmless error review. Greer v. United States, 141 S. Ct. 2090, 2099–

2100 (2021) (holding that unpreserved Rehaif errors are subject to plain-error

review on direct appeal); Seabrooks, 32 F.4th at 1384–85 (applying harmless

error standard to Rehaif claim on collateral review).

On collateral review, the harmless error standard mandates that “relief

is proper only if the ... court has grave doubt about whether a trial error

of federal law had substantial and injurious effect or influence in

determining the jury’s verdict. There must be more than a reasonable

possibility that the error was harmful.” Davis v. Ayala, 576 U.S. 257,

11 Alston referenced Rehaif in his Second Motion to Appoint Counsel (Crim. Doc. 159),

filed in March 2020, less than a year after Rehaif was decided. Although the Second Motion

to Appoint Counsel did not appear to contain allegations sufficient to warrant construing it as

a § 2255 motion, even if the Court should have done so, the Rehaif claim fails on the merits.

And the other claims raised in the Second Motion to Appoint Counsel, which match those in

the construed § 2255 Motion, still would have been untimely.

267–68, 135 S. Ct. 2187, 192 L.Ed.2d 323 (2015) (internal quotation

marks and citations omitted); Ross v. United States, 289 F.3d 677, 682

(11th Cir. 2002) (per curiam) (applying this standard to a § 2255 motion).

Put another way, the court may order relief only if the error “resulted in

actual prejudice.” [Brecht, 507 U.S. at 637] (internal quotation marks

and citation omitted).

Granda v. United States, 990 F.3d 1272, 1292 (11th Cir. 2021). The burden of

proving in a collateral proceeding that an error caused “actual prejudice” is

greater than the showing required to establish plain error on direct appeal.

United States v. Frady, 456 U.S. 152, 166 (1982).

Alston does not allege, let alone point to any evidence suggesting, that he

did not know he was a convicted felon when he possessed the firearm, or that

he would not have pleaded guilty had he known that knowledge-of-status was

an element of the crime to which he was pleading guilty. Alston has never

disputed he was a three-time convicted felon and has never suggested that,

when he possessed the gun, he did not know he had been convicted of an offense

punishable by more than one year in prison. In addition, “circumstantial

evidence establishes that [Alston] knew of his felon status.” United States v.

Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020) (internal citation omitted). To

begin with, Alston admitted he was a felon. Plea Tr. at 33–34. “If a person is a

felon, he ordinarily knows he is a felon,” a “simple truth [that] is not lost on

juries” or defendants. Greer, 141 S. Ct. at 2097. Second, Alston had been

convicted of three felonies before he possessed the firearm. “[S]omeone who has

been convicted of felonies repeatedly is especially likely to know he is a felon.”

Innocent, 977 F.3d at 1082 (citation omitted). Third, “serving more than a year

in prison provides circumstantial evidence of knowledge of felon status.” Id. at

1083 (citations omitted). Alston served nearly five years in prison for his 2001

conviction for the unlawful sale or delivery of a controlled substance, PSR ¶ 39,

and he spent nearly two years in prison for his 2008 convictions for the sale of

cocaine within 1,000 feet of a place of worship or convenience business and the

sale of cannabis within 1,000 feet of a public park, id. ¶¶ 47, 48. Alston was

released from the latter term of imprisonment in 2010, only three years before

he possessed the firearm in this case. Fourth, Alston “behaved in a way that

suggested he knew he was not allowed to possess a gun.” Innocent, 977 F.3d at

1083. Alston sold a gun with a scratched-off serial number in a hand-to-hand

cash transaction, which suggested he knew he could not lawfully sell or possess

a firearm. See Plea Tr. at 32. Here, as in United States v. McClellan, 958 F.3d

1110, 1119 (11th Cir. 2020), “it would be implausible for the defendant to not

have been aware of his felony status.” Upon consideration of the arguments and

the record, Alston fails to make a showing that any Rehaif error in his

Indictment or plea colloquy had a “substantial and injurious effect or influence”

on the outcome of his case. Granda, 990 F.3d at 1292. In sum, any claim based

on Rehaif (or its progeny) is meritless as well as untimely.

2. Jackson I and Williams/Wooden

Alston also seeks to add a challenge to his ACCA sentence based on the

Eleventh Circuit’s decision in Jackson I, 36 F.4th 1294, and the Supreme

Court’s memorandum opinion in Williams, 142 S. Ct. 1439, which applied the

Court’s decision in Wooden, 142 S. Ct. 1063. This Court construes Alston’s

reliance on Williams as an effort to challenge his ACCA sentence based on

Wooden.

In Jackson I, 36 F.4th 1294, and its successor, Jackson II, 55 F.4th 846,

the Eleventh Circuit addressed this question: “which version of the [federal]

controlled-substances list [does] ACCA’s definition of ‘serious drug offense’

incorporate[]: the one in effect when the defendant violated 18 U.S.C. §

922(g)(1) (the ‘firearm offense’) or the one in effect when the defendant was

convicted of his prior state drug offense.” Jackson II, 55 F.4th at 849. Relevant

to those decisions, the United States Attorney General removed ioflupane (a

cocaine analogue) from the list of federally controlled substances in September

2015, but cocaine-related convictions under Florida law encompassed ioflupane

until July 1, 2017. In Jackson I, the Eleventh Circuit held that due process

requires courts to “use the iteration of the Controlled Substances Act Schedules

incorporated into [18 U.S.C.] § 924(e)(2)(A)(ii)’s definition of ‘serious drug

offense’ in effect when [the defendant] possessed the firearm that undergirds

his federal conviction pending before us.” Jackson I, 36 F.4th at 1300. But the

court later vacated the Jackson I panel opinion and replaced it with the Jackson

II opinion, 55 F.4th 846. In Jackson II, the Eleventh Circuit held that “the

Supreme Court’s reasoning in McNeill[ v. United States, 563 U.S. 816 (2011),]

requires us to read ACCA’s definition of a ‘serious drug offense’ under state law

to incorporate the version of the federal controlled-substances schedules in

effect when [the defendant] was convicted of his prior state drug offenses.”

Jackson II, 55 F.4th at 855.

Neither Jackson I nor Jackson II is a Supreme Court decision that applies

retroactively on collateral review. As a result, neither Jackson I nor Jackson II

extends the one-year limitations period under 28 U.S.C. § 2255(f)(3).12

Alston’s reliance on either Williams or Wooden is similarly unavailing. In

Wooden, the Supreme Court vacated the sentence of a defendant who was

sentenced under the ACCA based on ten prior burglary convictions, which

resulted from breaking into ten storage units inside the same building, one right

after the other, on the same evening. 142 S. Ct. at 1067. In doing so, the

Supreme Court rejected a lower court’s holding that the ACCA’s different-

occasions provision was satisfied whenever crimes occurred sequentially

12 And regardless, neither Jackson I nor Jackson II would support a grant of collateral

relief in this case. Alston admitted that he unlawfully possessed a firearm in 2013, two years

before the United States Attorney General removed ioflupane from the federal controlled

substance schedules. He also admitted that his prior Florida convictions for the sale or

delivery of cocaine occurred in 2001 and 2008, long before iofluplane was removed from the

federal controlled substance schedules. So under either Jackson I or Jackson II, Alston would

not be entitled to relief from his ACCA sentence.

instead of simultaneously. Id. at 1068. Rather, the Supreme Court held that an

inquiry into whether prior offenses occurred on separate occasions is multi-

factored and requires considering the timing, location, character, and

relationship of the offenses. Id. at 1070–71.

Wooden does not extend the limitations period under § 2255(f)(3) because

it did not announce a newly recognized right. See 28 U.S.C. § 2255(f)(3). Instead,

in Wooden the Supreme Court merely clarified the proper application of the

ACCA’s different-occasions clause. As Justice Gorsuch wrote in his concurring

opinion, joined by Justice Sotomayor, “[w]e took this case hoping to bring some

clarity to at least this particular corner of the ACCA.” Wooden, 142 S. Ct. at

1079 (Gorsuch, J., concurring). Because nothing in Wooden broke new ground,

Wooden “did not announce a new rule—its holding merely clarified existing

precedent.” Beeman, 871 F.3d at 1220 (internal quotation marks and citation

omitted). And as the Eleventh Circuit has said before, “if the decision merely

clarifies an old rule, the petitioner will not be able to take advantage of the

extended statute of limitations under § 2255, which requires a newly recognized

right by the Supreme Court.” Id. (cleaned up) (quoting Figuereo-Sanchez v.

United States, 678 F.3d 1203, 1207 n.4 (11th Cir. 2012)). “As a result, a § 2255

movant wishing to raise a [Wooden] claim cannot rely on subsection (f)(3) as the

starting point for the calculation of the limitations period.” Id.

Besides, the record unequivocally establishes that each of Alston’s ACCA-

qualifying offenses were “committed on occasions different from one another.”

18 U.S.C. § 924(e)(1). Alston committed the first offense—the unlawful sale or

delivery of a controlled substance (cocaine)—on January 11, 2000. PSR ¶ 39;

Gov’t Sentencing Ex. 1 (Crim. Doc. 143-1). He committed the second offense—

the sale of cocaine within 1,000 feet of a place of worship or convenience

business—on July 26, 2007. PSR ¶ 47; Gov’t Sentencing Ex. 2 (Crim. Doc. 143-

2). And he committed the third offense—the sale of cannabis within 1,000 feet

of a public park—nearly eight months later, on March 19, 2008. PSR ¶ 48; Gov’t

Sentencing Ex. 3 (Crim. Doc. 143-3). Because months or years separated the

commission of each of Alston’s ACCA-qualifying offenses, they were committed

on separate occasions. See United States v. Pope, 132 F.3d 684, 690 (11th Cir.

1998) (“Distinctions in time and place are usually sufficient to separate criminal

episodes from one another.”). Wooden offers Alston no basis for relief.

For all of the foregoing reasons, each claim Alston seeks to raise in the

First Motion for Leave to Amend is untimely and meritless. As a result, the

Court will deny the First Motion for Leave to Amend as futile.

C. Second Motion for Leave to Amend (Civ. Doc. 16)

In the Second Motion for Leave to Amend, Alston seeks to add a challenge

to his conviction based on the Fourth Circuit’s decision in United States v.

Heyward, 42 F.4th 460 (4th Cir. 2022). In Heyward, the Fourth Circuit applied

Rehaif to vacate the conviction of a man who had pleaded guilty to possession

of a firearm by a convicted felon. The court described Heyward as “the rare

defendant who can make the ‘difficult’ showing that, had he been properly

advised, ‘there is a reasonable probability that he would not have pled guilty.’”

Id. at 464 (quoting Greer, 141 S. Ct. at 2097). Although Heyward had previously

pleaded guilty to possession of cocaine and carrying a pistol, he did not know

those were crimes punishable by more than a year in prison because the prior

convictions had been labeled misdemeanors and he was sentenced to only six

months’ probation for them. See id. at 467–68.

The decision in Heyward, like those in Minor I and Seabrooks, cannot

extend the limitations period under 28 U.S.C. § 2255(f)(3) because none of these

cases is a Supreme Court decision. Thus, any claim based on Heyward is not

timely. Moreover, Alston’s case differs from Heyward because Alston fails to

show he was unaware of his status as a felon when he possessed the firearm.

As a result, he has not shown that any Rehaif error had a “substantial and

injurious effect or influence” on the outcome. Granda, 990 F.3d at 1292. The

Second Motion for Leave to Amend will be denied as futile.

D. Third and Fourth Motions for Leave to Amend (Civ. Docs. 18

and 19)

Next, Alston moves for leave to amend his § 2255 Motion and Reply to

raise claims based on the Court’s June 2018 Order denying his First Motion to

Appoint Counsel and Motion for Extension of time to file a § 2255 motion. See

Third Motion for Leave to Amend (Civ. Doc. 18); Fourth Motion for Leave to

Amend (Civ. Doc. 19); see also Order of June 22, 2018 (Crim. Doc. 157). He

argues that the Court’s decision denied him his right to counsel under the Sixth

Amendment, violated his right to due process under the Fifth Amendment,

renders his conviction unlawful, and renders his § 2255 Motion timely. He also

contends that the Court should have advised him, when it denied the motions

in June 2018, that he was still within § 2255(f)’s limitations period.

Alston filed the Third and Fourth Motions for Leave to Amend on August

22, 2022, over four years after entry of the Order he now seeks to challenge.

Following entry of the Court’s Order of June 22, 2018, Alston filed nothing on

this Court’s docket until March 2020 (one year and nine months later), when he

renewed his motion to appoint counsel. And Alston did not file the Third and

Fourth Motions for Leave to Amend until over a year after he filed the construed

§ 2255 Motion. Alston’s unexplained delay in filing the Third and Fourth

Motions for Leave to Amend is reason alone to deny them. Moreover, Alston’s

claims bear no relation to the validity of his conviction and sentence. When the

Court denied his First Motion to Appoint Counsel and Motion for Extension of

time to file a § 2255 motion in June 2018, his conviction and sentence had long

since become final.

Alston’s assertions also lack substantive merit. Contrary to his

argument, the Sixth Amendment does not guarantee a right to counsel in post-

conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)

(“We have never held that prisoners have a constitutional right to counsel when

mounting collateral attacks upon their convictions, and we decline to so hold

today.” (internal citation omitted)). So the Court’s denial of Alston’s request to

appoint a lawyer to represent him in these collateral proceedings could not have

violated his Sixth Amendment right to counsel. Nor could the Court have

extended the deadline to file a § 2255 motion in June 2018, where Alston had

not yet filed anything that could fairly be construed as a § 2255 motion. Order

of June 22, 2018 at 1–2; see also United States v. Leon, 203 F.3d 162, 164 (2d

Cir. 2000) (holding that a district court lacks jurisdiction to consider a request

for an extension of time to file a § 2255 motion until the prisoner actually files

such a motion); Swichkow v. United States, 565 F. App’x 840, 843–44 (11th Cir.

2014) (adopting the holding and reasoning of Leon). Thus, Alston fails to show

his rights were violated.

Also, contrary to his argument, Alston was not entitled to have the Court

advise him whether he was still within the deadline to file a § 2255 motion, as

he now claims. “District judges have no obligation to act as counsel or paralegal

to pro se litigants,” and it would “undermine district judges’ role as impartial

decisionmakers” to advise litigants about the statute of limitations calculation.

Pliler, 542 U.S. at 231. And as the Court explained in Section III.A, Alston’s

ignorance of the law and lack of representation does not support equitable

tolling.

For the reasons above, the Third and Fourth Motions for Leave to Amend

will be denied as futile.

E. Fifth Motion for Leave to Amend (Civ. Doc. 22)

Alston moves for leave to “amend” his construed § 2255 Motion to submit

“newly discovered evidence.” (Civ. Doc. 22, Fifth Motion for Leave to Amend.)

In doing so, Alston seeks leave to submit the following items: (1) a document

showing that Alston’s criminal case number changed; (2) an unsigned and

undated copy of Alston’s IADA detainer; (3) documents showing that Alston’s

IADA detainer was mailed to the wrong address; (4) a letter written by Alston

purporting to show that more than 180 days passed between the date when

Alston submitted his IADA demand and when he was brought to Court; and (5)

a copy of the criminal Judgment, which contains the updated case number. Fifth

Motion for Leave to Amend at 2–5; see also Civ. Docs. 22-1 through 22-5.

The Court will grant the Fifth Motion for Leave to Amend to the extent

the Court accepts the documents for consideration. However, the claims to

which the documents relate––the claims in the construed § 2255 Motion––

remain untimely or lacking in merit.

F. Renewed Request for Appointment of Counsel

In the First, Second, and Third Motions for Leave to Amend, Alston

renews his request for the appointment of counsel. As noted above, there is no

constitutional right to counsel in post-conviction proceedings. Finley, 481 U.S.

at 555. While Rules 6(a) and 8(c) of the Rules Governing Section 2255

Proceedings provide for the appointment of counsel if needed for effective

discovery or to assist the petitioner in an evidentiary hearing, neither is

required here because Alston’s claims are barred by the statute of limitations.

Nor do the interests of justice support the appointment of counsel under 18

U.S.C. § 3006A(a)(2). The claims Alston seeks to raise are not complex, do not

require significant factual development, and Alston is capable of presenting his

claims—he simply did not exercise diligence in doing so. Thus, the Court will

not appoint counsel.

IV. Certificate of Appealability

The undersigned opines that a certificate of appealability is not

warranted. This Court should issue a certificate of appealability only if the

petitioner makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make this substantial showing, Alston “must

demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that

“the issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

When a district court has rejected a petitioner’s claims on the merits, the

petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the claims debatable or wrong. See Slack, 529 U.S. at 484.

However, when the district court has rejected a claim on procedural grounds,

the petitioner must show that “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Id. Upon consideration of the record as a whole, this

Court will deny a certificate of appealability.

V. Conclusion

Having considered each of Alston’s claims, and finding that none

warrants relief under 28 U.S.C. § 2255, it is ORDERED:

1. Petitioner Andre Alston’s Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence (Civ. Doc. 1) is DISMISSED WITH

PREJUDICE as untimely.

2. Alston’s First, Second, Third, and Fourth Motions for Leave to Amend

(Civ. Docs. 14, 16, 18, 19) are DENIED. Alston’s renewed request to

appoint counsel is also DENIED.

3. The Motion to Reply to the Government’s Response to the Motions for

Leave to Amend (Civ. Doc. 21) is GRANTED to the extent the Court

has considered Alston’s arguments in the motion.

4. The Fifth Motion for Leave to Amend (Civ. Doc. 22) is GRANTED to

the limited extent the Court has considered the attached documents.

5. The Motion for Evidentiary Hearing (Civ. Doc. 23) is DENIED.

6. The Clerk will enter judgment for the United States and against

Alston, and close the file.

7. If Alston appeals this Order, the Court denies a certificate of

appealability (COA). Because this Court has determined that a COA

is not warranted, the Clerk will terminate from the pending motions

report any motion to proceed on appeal as a pauper that may be filed.

Such termination will serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 17th day of April,

2023.

United States District Judge

Ie 19

C:

Counsel of record

Pro se petitioner

37