“[E]ven restricted access to a law library, lock-downs, and solitary confinement do not qualify as extraordinary circumstances warranting equitable tolling.”
How later courts described this case
- “[E]ven restricted access to a law library, lock-downs, and solitary confinement do not qualify as extraordinary circumstances warranting equitable tolling.”
- “We hold that when a judgment imposes a sentence but leaves the amount of restitution to be determined, the one-year statute of limitations to file a § 2255 motion does not restart when the specific amount of restitution is later entered.”
- “[F]ailure to raise an issue in an initial brief . . . should be treated as a forfeiture of the issue, and therefore the issue may be raised by the court sua sponte [only] in extraordinary circumstances.”
- “Arguments not properly presented . . . are deemed waived.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NOS. 23-60956-CIV-ALTMAN
21-60184-CR-ALTMAN
SAMANTHA JOHNSON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________________________/
ORDER
Samantha Johnson pled guilty to one count of conspiracy to defraud the United States and,
for that crime, is serving a 30-month sentence in the custody of the Bureau of Prisons. See Second
Amended Judgment, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Aug. 31, 2022),
ECF No. 98 at 1–2. She’s now filed a motion to vacate her conviction and sentence under 28 U.S.C.
§ 2255. See Motion to Vacate (“Motion”) [ECF No. 1]. Johnson believes that her Motion is untimely
under the limitations period set out in 28 U.S.C. § 2255(f)(1), and she tries to justify that untimeliness
by claiming that (1) she “did not have access to the law library due to the COVID 19 pandemic” and
(2) “[t]he resources she needed to prepare, copy, and study for her pro se 2255 petition were virtually
inaccessible[.]” Id. at 10–11. We’ve already interpreted this as a request for “us to find that § 2255’s
limitations period was equitably tolled.” Limited Order to Show Cause [ECF No. 3] at 1.
Since the timeliness of Johnson’s Motion was very much in doubt, we ordered the
Government to “file a limited Response addressing the timeliness of the Motion.” Id. at 2. The
Government filed that Response on June 13, 2023. See Response Memorandum of Fact and Law
Addressing Whether Johnson’s 28 U.S.C. § 2255 Motion is Timely (“Response”) [ECF No. 7]. After
careful review, we agree with the Government that Johnson isn’t entitled to equitable tolling and that,
as a result, her Motion must be DISMISSED.
THE FACTS
A grand jury in our District charged Johnson with one count of conspiracy to wrongfully
disclose individually identifiable health information (Count 1) and nine substantive counts of
wrongfully disclosing individually identifiable health information (Count 2–10). See Indictment, United
States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. June 30, 2021), ECF No. 1 at 1–13. The
Government alleged, and Johnson later admitted, that Johnson and a co-conspirator gained access to
the “personal identifying information address and telephone contact numbers of individuals [who]
were patients at Memorial Health Care System” in Hollywood, Florida. See Factual Proffer, United
States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Jan. 24, 2022), ECF No. 58 at 1. Johnson then
used that information “to obtain leads on acquiring distressed, abandoned[,] foreclosed and/or
probated real property.” Id. at 3. On January 24, 2022, Johnson pled guilty to Count 1 of the
Indictment, and the Government later dismissed the remaining counts. See Plea Agreement, United
States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Jan. 24, 2022), ECF No. 57 at 1.
On March 24, 2022, we sentenced Johnson to 30 months in prison. See Judgment, United States
v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Mar. 24, 2022), ECF No. 76 at 1–2. We also ordered
Johnson to pay some restitution, but we deferred until a later date a final determination of the specific
amount she would owe in restitution. See id. at 6. We then amended Johnson’s judgment two more
times. First, on March 28, 2022, we added a provision recommending that “[t]he defendant be placed
at FCI Tallahassee[.]” Amended Judgment, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D.
Fla. Mar. 28, 2022), ECF No. 78 at 2. Second, on August 31, 2022, we amended the judgment to reflect
the parties’ stipulation that Johnson owes $59,387.02 in restitution. See Second Amended Judgment,
United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. Aug. 31, 2022), ECF No. 98 at 6.
Johnson never filed a direct appeal. See generally Docket.
On April 25, 2023,1 Johnson filed a pro se “Motion to Request Extension of Time to File
Petition Pursuant to 28 U.S.C. § 2255.” Motion for Extension of Time, United States v. Johnson, No. 21-
60184-CR-ALTMAN (S.D. Fla. May 2, 2023), ECF No. 111. In that motion, Johnson asked us to
extend § 2255’s limitations period by ninety days because she didn’t have “full access to the law library”
and because she lacked “adequate time to properly prepare” a § 2255 motion. Id. at 1–2. We denied
Johnson’s motion for an extension of time, explaining that “we can’t preemptively grant a motion for
extension of time” in a § 2255 proceeding before the movant has filed her motion to vacate in the first
place. Paperless Order, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D. Fla. May 3, 2023),
ECF No. 112 (citing United States v. Cuya, 964 F.3d 969, 972 (11th Cir. 2020)); see also Swichkow v. United
States, 565 F. App’x 840, 844 (11th Cir. 2014) (“Here, because Swichkow had yet to file an actual §
2255 motion at the time he sought an extension to the limitations period, there was no actual case or
controversy to be heard. Thus, the district court properly concluded that it lacked jurisdiction to
consider Swichkow’s requests for an extension of time to file a § 2255 motion absent a formal request
for habeas relief.”). Johnson filed her § 2255 Motion on May 15, 2023. See Motion at 12.
THE LAW
“Section 2255 allows a federal prisoner to seek post-conviction relief from a sentence imposed
in violation of the Constitution or laws of the United States or if it is otherwise subject to collateral
attack.” Murphy v. United States, 634 F.3d 1303, 1306 (11th Cir. 2011). But “Congress created a one-
1 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is
delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.
2009). “Absent evidence to the contrary, [courts] assume that a prisoner delivered a filing to prison
authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014).
year statute of limitations for § 2255 motions” in § 2255(f), id. at 1307, which provides that “[t]he
limitation period shall run 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.
28 U.S.C. § 2255(f)(1)–(4).
Still, a § 2255 movant can, in very limited circumstances, file an otherwise untimely motion to
vacate. First, “§ 2255’s period of limitations may be equitably tolled.” Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999). Equitable tolling applies if the movant can show “‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). Second, an untimely motion will be excused if the movant presents proof of her
“actual innocence.” See McQuiggin v. Perkins, 569 U.S. 383, 393 (2013) (“[A] prisoner’s proof of actual
innocence may provide a gateway for federal habeas review of a procedurally defaulted claim of
constitutional error.”). To avail herself of the actual-innocence exception, the movant must satisfy two
elements. One, she must “support the actual innocence claim ‘with new reliable evidence—whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.’” Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir. 2006) (quoting Schlup v.
Delo, 513 U.S. 298, 324 (1995)). In this context, “[a]ctual innocence means factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (cleaned up). Two, she must show
that, in light of this new evidence, “it is more likely than not that no reasonable juror would have
convicted [the movant].” Schlup, 513 U.S. at 329.
ANALYSIS
Both Johnson and the Government agree that Johnson’s Motion is untimely under § 2255(f),
and Johnson doesn’t allege that she’s “actually innocent” of the crimes she pled guilty to. See generally
Motion; Response. The sole issue before us, then, is whether Johnson is entitled to equitable tolling.
See Motion at 11 (“Petitioner feels that she qualifies for the extended time in which to file her petition
[which] is only 1 1/2 months past her 1 year time limit.”); Response at 5 (“There is no dispute that
the Motion is untimely. The only question is whether the untimeliness should be excused.”).2 Johnson
insists that the effects of the COVID-19 pandemic constituted an “extraordinary circumstance” that
prevented her from filing her Motion on time because the prison restricted her access to the law
2 We’ll pause here to point out a circuit split that, in different circumstances, might have saved
Johnson’s case. As we’ve explained, our original March 24, 2022 Judgment deferred the imposition of
restitution until a later date. See Judgment, United States v. Johnson, No. 21-60184-CR-ALTMAN (S.D.
Fla. Mar. 24, 2022), ECF No. 76 at 6. We then issued the Second Amended Judgment on August 31,
2022, after the parties stipulated to the precise amount of restitution Johnson would owe as part of
her sentence ($59,387.02). See Second Amended Judgment, United States v. Johnson, No. 21-60184-CR-
ALTMAN (S.D. Fla. Aug. 31, 2022), ECF No. 98 at 6. The Ninth and Tenth Circuits have taken
opposite views on whether an amended judgment that only resolves a deferred restitution amount
affects a motion to vacate’s timeliness under § 2255(f)(1). Compare United States v. Anthony, 25 F.4th
792, 800–01 (10th Cir. 2022) (“The issue before us is not whether Anthony’s § 2255 period of
limitations was extended or restarted—rather, the issue is whether Anthony’s one-year period under
§ 2255 ever started in the first place. Because restitution proceedings are still pending, we conclude
Anthony’s § 2255 limitations period has yet to begin.”), with United States v. Gilbert, 807 F.3d 1197, 1201
(9th Cir. 2015) (“We hold that when a judgment imposes a sentence but leaves the amount of
restitution to be determined, the one-year statute of limitations to file a § 2255 motion does not restart
when the specific amount of restitution is later entered.”).
Fortunately, we don’t need to decide today whether we agree with the Ninth or the Tenth
Circuit on this question because both parties agree that the original March 24, 2022 Judgment was the
final “judgment of conviction” for § 2255(f) purposes. Johnson has thus unambiguously waived any
alternative argument she could’ve made on this issue. See United States v. Campbell, 26 F.4th 860, 873
(11th Cir. 2022) (“[F]ailure to raise an issue in an initial brief . . . should be treated as a forfeiture of
the issue, and therefore the issue may be raised by the court sua sponte [only] in extraordinary
circumstances.”); Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he
failure to make arguments and cite authorities in support of an issue waives it.”); In re Egidi, 571 F.3d
1156, 1163 (11th Cir. 2009) (“Arguments not properly presented . . . are deemed waived.”).
library. See Motion at 10–11 (“Petitioner did not have access to the law library due to the COVID 19
pandemic. The resources she needed to prepare, copy, and study for her pro se 2255 petition were
virtually inaccessible and not open for her full use until the beginning of 2023.”). We find this
argument unpersuasive for two reasons.
First, the Eleventh Circuit has repeatedly held that “lockdowns and periods in which a prisoner
is separated from his legal papers are not ‘extraordinary circumstances’ in which equitable tolling is
appropriate.” Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir. 2004); see also Miller v. Florida, 307 F.
App’x 366, 368 (11th Cir. 2009) (“[E]ven restricted access to a law library, lock-downs, and solitary
confinement do not qualify as extraordinary circumstances warranting equitable tolling.”). And district
courts throughout our Circuit have uniformly held that law-library restrictions caused by the COVID-
19 pandemic should be treated no differently. See, e.g., Lutgen v. United States, 2023 WL 2475309, at *5
(S.D. Fla. Mar. 13, 2023) (Bloom, J.) (“However, this circuit’s precedent is that ‘lockdowns and similar
limitations imposed because of the COVID-19 pandemic were not extraordinary circumstances which
by themselves justify equitable tolling.’” (quoting Powell v. United States, 2022 WL 2811987, at *1 (11th
Cir. Feb. 8, 2022))); Franco v. United States, 2021 WL 1546021, at *4 n.5 (M.D. Fla. Apr. 20, 2021)
(Whittemore, J.) (“Specifically, courts have declined to grant equitable tolling based on prison
lockdowns due to Covid-19.”); Hagler v. United States, 2022 WL 18144297, at *5 (S.D. Ala. Oct. 18,
2022) (Nelson, Mag. J.) (“Access to the law library was not restricted solely for [the movant]—but for
everyone. His circumstances were no more unique than those of any other prisoner seeking relief
under § 2255 at these respective correctional facilities during the pandemic. As such, they are not
extraordinary and do not entitle him to tolling.”), report and recommendation adopted, 2023 WL 122399
(S.D. Ala. Jan. 6, 2023) (Moorer, J.).
Second, the Government has produced compelling evidence for its view that Johnson didn’t
face any law-library restrictions during the COVID-19 pandemic. Johnson was housed at the Federal
Detention Center in Miami, Florida, from September 22, 2022, until December 16, 2022. See
Declaration of Charlene Brown (“Brown Decl.”) [ECF No. 7-1] at 1. During that time, “there were
no pandemic modified operations memorandum or lockdowns that would impede an inmate’s access
to the Main Leisure Library/Electronic Law Library or the unit’s Electronic Law Library[.]” Id. at 2.
Similarly, the law library at FCI Tallahassee—where Johnson has been housed since December 16,
2022—“has been open and available for inmate access” without any COVID-related operational
restrictions since her arrival. Declaration of Tsa Quinn (“Quinn Decl.”) [ECF No. 7-2] at 2. The
Government’s records also show that, since her arrival on December 16, 2022, Johnson has frequently
accessed FCI Tallahassee’s electronic law-library workstations. See generally Workstation User Report
[ECF No. 7-5] at 1–5. We thus agree with the Government that “Johnson’s claim that she lacked
access to the law library due to the pandemic is belied by the record.” Response at 5.
* * *
Because Johnson hasn’t shown that “some extraordinary circumstance stood in [her] way” and
prevented her from filing a timely § 2255 motion, she cannot rely on equitable tolling. Holland, 560
U.S. at 649. Moreover, since Johnson isn’t actually innocent—and because she concedes that her
Motion is untimely under the limitations periods of § 2255(f)— her Motion is time-barred and must
be dismissed.
EVIDENTIARY HEARING
We don’t need a hearing to develop the factual record in this case. See Winthrop-Redin v. United
States, 767 F.3d 1210, 1216 (11th Cir. 2014) (“[A] district court need not hold a hearing if the allegations
are patently frivolous, based upon unsupported generalizations, or affirmatively contradicted by the
record.” (cleaned up)). Since the Petition is plainly untimely, a hearing wouldn’t help us.
CERTIFICATE OF APPEALABILITY
A Certificate of Appealability (“COA”) is appropriate only when the movant makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA,
therefore, the movant must show that “reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a
district court has disposed of claims . . . on procedural grounds, a COA will be granted only if the
court concludes that ‘jurists of reason’ would find it debatable both ‘whether the petition states a valid
claim of the denial of a constitutional right’ and ‘whether the district court was correct in its procedural
ruling.” Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d
1196, 1199 (11th Cir. 2000)). Because no jurists of reason would debate whether Johnson is entitled
to equitable tolling, we DENY any request for a COA.
* * *
Having carefully reviewed the record and the governing law, we hereby ORDER AND
ADJUDGE that the Motion [ECF No. 1] 1s DISMISSED as untimely. Any request for a COA is
DENIED. Any pending motions, including any requests for an evidentiary hearing, ace DENIED.
All deadlines are TERMINATED. The Clerk of Court shall CLOSE this case.
DONE AND ORDERED in the Southern mee of Florida on 4, 2023.
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
cc: Samantha Johnson, pro se
counsel of record