United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on pro se Petitioner
Richard Nelson's Motion to Vacate, Set Aside, or Correct
pursuant to U.S.C. § 2255 and Petitioner's Response
to the Court's Order to Show Cause. (Docs. 130 and 132).
The motion has been referred to the undersigned Magistrate
Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized
to require responses, issue orders to show cause and any
other orders necessary to develop a complete record, and to
prepare a report and recommendation to the District Judge as
to appropriate disposition of these proceedings brought under
28 U.S.C. § 2255, in accordance with 28 U.S.C. §
636(b)(1) and Rules 8(b) and 10 of the Rules Governing
Section 2255 Proceedings for the United States District
Courts. See S.D. Ala. GenLR 72(b); (case docket,
08/29/2017 electronic reference).
conducting preliminary review in accordance with Rule 4(b) of
the Rules Governing Section 2255 Proceedings, the undersigned
entered an Order directing Petitioner to respond as to why
his § 2255 petition should not be dismissed as untimely.
(Doc. 131). Petitioner filed a timely response. (Doc. 132).
reviewed the record and Petitioner's response (Doc. 132),
the undersigned finds that an evidentiary hearing is not
warranted, and RECOMMENDS that his motion
pursuant to § 2255 (Doc. 130) be
DISMISSED as time barred. The undersigned
further finds that Petitioner is not entitled to a
certificate of appealability or to proceed in forma
pauperis on appeal.
a jury trial held July 14-15, 2008, Petitioner was found
guilty of enticement of a minor to engage in sexual activity
and commission of a felony offense involving a minor by a
registered sex offender, in violation of 18 U.S.C.
§§ 2422(b) and 2260A. On October 24, 2008,
Petitioner was sentenced to 525 months in the custody of the
Bureau of Prisons. (Doc. 84). The same day, Petitioner filed
a Notice of Appeal (Doc. 79) and on July 13, 2009, the Court
of Appeals for the Eleventh Circuit affirmed his convictions.
(Doc. 107). On October 15, 2009, the United States Supreme
Court denied certiorari. (Doc. 108).
1, 2013, Petitioner filed a “motion for leave to file
out of time, ” which the district court denied via an
endorsed order. (Docs. 114-115). Petitioner appealed the
order denying his motion and on March 5, 2014 the Court of
Appeals concluded that Petitioner's appeal was frivolous,
In 201, Nelson filed the motion at issue in this appeal.
In this self-styled “motion for leave to file out of
time, ” Nelson asked the district court for leave to
file out of time, on the grounds that he had only recently
learned how to use computers to conduct legal research and
had limited computer time. He did not state what sort of
motion or other filing he sought to untimely file, but, based
on the nature of the issues that he indicated he wished to
raise ineffective assistance of counsel, pretrial publicity,
and conflict of interest-he apparently intended to file an
untimely 28 U.S.C. § 2255 motion to vacate. He also
asked the court to issue subpoenas for the press coverage of
his criminal trial from two local news sources. In an
endorsed order, the court denied his self-styled motion. The
district court also denied his motion to proceed IFP on
As an initial matter, Nelson has not filed a motion to
vacate, pursuant to § 2255, and does not need a
certificate of appealability to proceed on appeal.
See 28 U.S.C. § 2253(c). Thus, the only issue
before us is whether his appeal would be frivolous. See
id. § 1915(e)(2)(8)(1). An action is frivolous if
it is without arguable merit either in law or fact.
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir.
Although Nelson admits that any post-conviction motion he
might file would be untimely, the district court properly
denied his request to untimely file a motion challenging his
convictions because he does not need the district court's
permission to file a motion to vacate, untimely or otherwise.
(Doc. 125 at 2). In August 2017, nearly seven years after his
conviction became final, Petitioner filed his first motion
pursuant to § 2255.
the Anti-terrorism and Effective Death Penalty Act
(“AEDPA”), a motion to vacate is subject to the
one-year statute of limitations provided by 28 U.S.C. §
2255(f). The one-year period runs from the latest of the
dates on which (1) Petitioner's conviction became final;
(2) a Government impediment to making the motion to vacate
was removed; (3) a right that Petitioner asserts was
initially recognized by the United States Supreme Court, if
the right has been newly recognized and made retroactively
applicable to cases on collateral review; or (4) Petitioner,
with due diligence, could have discovered the facts
supporting his claims. See 28 U.S.C. §
conviction became final on October 15, 2009, when the United
States Supreme Court denied certiorari. Thus,
Petitioner's statute of limitations pursuant to §
2255(f) expired October 15, 2010. Petitioner's §
2255 motion was filed in August 2017, nearly seven years
beyond the expiration of the § 2255(f)(1) limitation
period. On October 2, 2017, the undersigned entered a show
cause order, indicating that the § 2255 ...