“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions[.]” (citation omitted)
How later courts described this case
- “We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions[.]” (citation omitted)
- “[The movant’s] conviction did not become final until the 90–day period to seek [certiorari] expired[.]’
- “Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner’s motion was delivered to prison authorities on the day he signed it.”
- stating that “a litigant seeking equitable tolling bears the burden of establishing” his entitlement
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 23-cv-24351-BLOOM
(Case No. 19-cr-20458-BLOOM)
JOE VONZO READON
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
/
ORDER OF DISMISSAL
THIS CAUSE is before the Court on Movant Joe Vonzo Readon’s pro se Motion Under
28 U.S.C. § 2255, ECF No. [1]. In his Motion, Movant raises constitutional challenges to his
sentence imposed in case number 19-cr-20458-BLOOM. See generally id. The Court has carefully
considered the Motion, the Government’s Response, ECF No. [6], Movant’s Reply,1 ECF No. [7],
Movant’s Supplement to the Reply, ECF No. [8], the applicable law, and is otherwise fully advised.
For the reasons set forth below, the Motion is dismissed as untimely.
I. BACKGROUND
A grand jury indicted Movant with two counts of possession with intent to distribute a
controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Counts 1 and 2), and one count of
being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1)
1 The Court clearly stated that Movant had fourteen days from the date the Response was docketed to file a
Reply. See ECF No. [4] at 1. The Response was filed on December 12, 2023, and Movant waited until
January 4, 2024, to deliver his Reply to prison authorities (i.e., to file his reply under the prison mailbox
rule), making the Reply untimely. Nevertheless, the Court has reviewed the Reply and finds that it fails to
raise a meritorious defense to the dismissal of the Complaint.
(Count 3). See generally CR ECF No. [1]; CR ECF No. [16].2 Pursuant to a plea agreement,
Movant, on December 2, 2019, pleaded guilty to Count 3 in exchange for the dismissal of Counts
1 and 2. See generally CR ECF No. [44]; see CR ECF No. [46] at 1. On February 4, 2020, Movant
filed a Motion to Withdraw Plea, which the Court denied on February 13, 2020. See generally CR
ECF No. [57]; see CR ECF No. [73] at 198:24-199:3. On February 21, 2020, the Court sentenced
Movant to a 180-month term of imprisonment to be followed by three years of supervised release.
See generally CR ECF No. [67]. On February 24, 2020, Movant filed a Notice of Appeal
challenging the Court’s denial of his Motion to Withdraw Plea and the sentenced imposed by the
Court. See generally CR ECF No. [81]. On April 30, 2021, the Eleventh Circuit Court of Appeals
entered its Mandate, affirming the Court’s order denying Movant’s Motion to Withdraw Plea and
Judgment. See generally id. Thereafter, Movant filed a Petition for Writ of certiorari which the
United States Supreme Court denied on November 8, 2021. See generally CR ECF No. [82].
II. LEGAL STANDARD
Under 28 U.S.C. § 2255(f), a movant must file his § 2255 motion within a one-year period
that runs “from the latest of” the following dates:
(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.
2 References to docket entries in Movant’s criminal case, case number 19-cr-20458-BLOOM, are denoted
with “CR ECF No.”
Id. When a movant takes an unsuccessful direct appeal from a judgment of conviction, the
conviction becomes final when the time for filing a petition for writ of certiorari expires or when
a petition for writ of certiorari is denied. See Clay v. United States, 537 U.S. 522, 524-25 (2003);
Kaufmann v. United States, 282 F.3d 1336, 1337 (11th Cir. 2002) (“[The movant’s] conviction did
not become final until the 90–day period to seek [certiorari] expired[.]’).
III. DISCUSSION
A. The Motion is Untimely
Liberally construing the Motion, Movant asserts that his Motion is timely under 28 U.S.C.
§ 2255(f)(4) due to newly discovered evidence. See ECF No. [1] at 10-11. However, Movant fails
to identify the evidence he relies upon, thus failing to establish that the Motion is timely under §
2255(f)(4). The Court, therefore, measures the timeliness of the Motion from the date the Movant’s
judgment of conviction became final.3
The Supreme Court denied Movant’s Petition for Writ of certiorari on November 8, 2021.
See CR ECF No. [82]. Thus, Movant had until November 9, 2022, to file a § 2255 motion. See
Washington v. United States, 243 F.3d 1299, 1300-01 (11th Cir. 2001) (holding that the one-year
limitations period for filing a § 2255 motion begins to run when Supreme Court either denies
certiorari or issues decision on the merits); see also Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d
1286, 1289 n. 1 (11th Cir. 2007) (noting that the limitations period should be calculated using “the
anniversary date of the triggering event”); Fed. R. Civ. P 6(a)(1) (“When the period is stated in
days or a longer unit of time . . . exclude the day of the event that triggers the period . . . .”). On
3 Movant does not assert that a State-created impediment prevented the timely filing of the Motion or that
he bases his claims on a right newly recognized by the United States Supreme Court. See generally ECF
No. [1].
November 3, 2023, Movant filed his § 2255 motion—359 days after the deadline.4 See ECF No.
[1] at 12. The Motion is, therefore, untimely.
B. Equitable Tolling
“If a defendant files a petition for a federal writ of habeas corpus beyond the one-year
limitation period, the district court may still review an untimely petition filed by a petitioner
entitled to equitable tolling.” San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011); Sandvik
v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (“§ 2255’s period of limitations may be
equitably tolled”). A § 2255 movant 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” of his federal habeas motion. Holland v. Florida, 560 U.S. 631,
649 (2010) (quotation marks and citation omitted). “The diligence required for equitable tolling
purposes is reasonable diligence,” and under the extraordinary-circumstance prong, a movant must
“show a causal connection between the alleged extraordinary circumstances and the late filing of
the petition.” San Martin, 633 F.3d at 1267 (quotation marks and citations omitted).
Movant argues that he is entitled to equitable tolling because (1) the COVID-19 pandemic
restricted his access to the law library and its resources and (2) he has no legal training. See
generally ECF No. [7] at 2-4. Neither circumstance warrants equitable tolling. The Eleventh
Circuit has stated that COVID-19 lockdowns and restricted access to the law library are not
sufficient bases to establish an entitlement to equitable tolling. See Rush v. Sec’y, Fla. Dep’t of
4 “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) (citations
omitted); see also United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (“Unless there is evidence
to the contrary, like prison logs or other records, we assume that a prisoner’s motion was delivered to prison
authorities on the day he signed it.”) (citation omitted)).
Corr., No. 21-10218-C, 2021 WL 3134763, at *1 (11th Cir. June 22, 2021) (concluding that
COVID-19 did not constitute an “extraordinary circumstance” because all prisoners “attempting
to access legal resources . . . were subject to COVID-19 protocols”); Akins v. United States, 204
F.3d 1086, 1090 (11th Cir. 2000) (“The mere inability of a prisoner to access the law library is not,
in itself, an unconstitutional impediment.”). And, according to the Supreme Court, the same goes
for a movant’s lack of legal training and pro se status. See Johnson v. United States, 544 U.S. 295,
311 (2005) (stating that “the Court has never accepted pro se representation alone or procedural
ignorance as an excuse for prolonged inattention when a statute’s clear policy calls for
promptness.”); see also 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[.]” (citation omitted)). Therefore, Movant fails to establish that he is entitled to the
“extraordinary remedy” of equitable tolling.5 Cadet v. Fla., Dep’t of Corr., 742 F.3d 473, 477 (11th
Cir. 2014) (subsequent history omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)
(stating that “a litigant seeking equitable tolling bears the burden of establishing” his entitlement).
C. Actual Innocence
Next, a district court may consider an untimely § 2255 motion if the movant can prove that
he is actually innocent of the charges for which he has been convicted. See McKay v. United States,
657 F.3d 1190, 1196 (11th Cir. 2011) (citing Dretke v. Haley, 541 U.S. 386, 388 (2004)). The
actual innocence exception to the one-year period for filing a § 2255 motion is only available “in
5 The Court need not determine whether Movant was diligently pursuing his rights because he fails to
demonstrate that he faced extraordinary circumstances warranting equitable tolling. See Holland v. Florida,
560 U.S. 631, 649 (2010); see also Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006) (“A petitioner is
not entitled to equitable tolling based on a showing of either extraordinary circumstances or diligence alone;
the petitioner must establish both.” (citation omitted)).
an extraordinary case, where a constitutional violation has resulted in the conviction of someone
who is actually innocent.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)
(citing Murray v. Carrier, 477 U.S. 478, 498 (1986)). Actual innocence means factual innocence,
not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623-24 (1998).
Here, Movant argues he is actually innocent because his Florida drug convictions do not
qualify as drug trafficking offenses under 18 U.S.C. § 924(e) and, thus, he is innocent of being an
armed career criminal. See ECF No. [1] at 29-33; ECF No. [8] at 2. This argument goes to
establishing legal innocence, not factual innocence, and, as previously discussed, legal innocence
will not satisfy the actual innocence exception. See Bousley, 523 U.S. at 623 Moreover, Movant
fails to reference any new evidence that could substantiate a claim that he is actually innocent of
the charges that he was convicted of—and pled guilty to. Movant, therefore, fails to satisfy the
requirements of the actual innocence exception.
D. Certificate of Appealability
A certificate of appealability “may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the Court
denies Movant’s claims on procedural grounds, a certificate of appealability should issue if “the
prisoner shows, at least, 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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). “Jurists of reason” would not find the Court’s procedural ruling “debatable.” Id.
Consequently, a certificate of appealability is denied.
Case No. 23-cv-24351-BLOOM
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Movant Joe Vonzo Readon’s’s Motion Under 28 U.S.C. § 2255, ECF No. [1], is
DISMISSED without prejudice for being time-barred.
2. Acertificate of appealability is DENIED. Because there are no issues with arguable
merit, an appeal would not be taken in good faith; thus, Movant is not entitled to
appeal in forma pauperis.
3. To the extent not otherwise disposed of, any pending motions are DENIED AS
MOOT and all deadlines are TERMINATED.
4. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on January 17, 2024.
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Joe Vonzo Readon, PRO SE
20362-104
Atlanta-USP
United States Penitentiary
Inmate Mail/Parcels
Post Office Box 150160
Atlanta, Georgia 30315