WHITE

v.

UNITED STATES

I. Background

A federal grand jury indicted White on one count of aiding and abetting bank fraud, in violation of 18 U.S.C. §§ 1344 and² (Count One), and one count of aiding and abetting aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and² (Count Two). (Crim. Doc. 1, Indictment.) White pled guilty to Count Two under a written plea agreement. (Crim. Doc. 36, Plea Agreement.)

He admitted that on December 18, 2015, he entered a Navy Federal Credit Union (a federally chartered financial institution) in Jacksonville, Florida and, using the name and identity of J.F., tried to withdraw $100 from J.F.’s bank account. Id. at 12–13. As part of the plea agreement, White waived the right to appeal his sentence, with four exceptions not relevant here. Id. at 7–8.2 The Magistrate Judge who presided over the plea colloquy recommended that, “[a]fter cautioning and examining Defendant under oath concerning each of the subjects mentioned in Rule 11, I determined that the guilty plea was

15CF11093 and 15CF11098. Id. at 2; see also Crim. Doc. 42 (Presentence Investigation Report [PSR]) ¶¶ 66, 67; U.S.S.G. § 5G1.3(d). The Court entered Judgment on May 31, 2017, and White did not file a notice of appeal. He filed the § 2255 Motion over two years later, on October 12,

2019. § 2255 Motion at 12.3 II. The § 2255 Motion

White challenges his conviction and sentence based on three grounds of ineffective assistance of counsel. First, he alleges that his appointed federal public defender, Waffa Hanania, failed to consult him about his right to appeal,

Hanania on June⁶, 2017, informing him that she agreed with his decision not to pursue an appeal, which surprised White because they had not discussed an appeal “at all.” Memorandum at 5. White argues that Ms. Hanania had a duty to consult him about an appeal because he was “visibly upset” when the Court ordered his 24-month sentence to run consecutively with his state sentences for burglary. Id. at 11–12. Second, White alleges that Ms. Hanania gave ineffective assistance by failing to object to the Court’s decision to run his federal sentence consecutively with his state sentences. § 2255 Motion at 5; Memorandum at 14–18. He contends that under § 5G1.3(b) of the sentencing guidelines, the Court was required to run his federal sentence concurrently with his state sentences. White was frustrated that counsel failed to argue against consecutive sentences because he had shared research with her and a probation officer on the topic. Finally, White alleges that Ms. Hanania failed to inform him of the time limit for filing a notice of appeal and about his right to be appointed counsel if he could not afford one. See § 2255 Motion at 6–7; Memorandum at 19–22.

White asserts that counsel’s failure to advise him of the 14-day time limit to file a notice of appeal caused him to forfeit his right to appeal. Memorandum at 19. The government responds that the statute of limitations, 28 U.S.C. § 2255(f), bars White’s claims and that White is not entitled to equitable tolling.

Response at 1, 3–7. The government also argues that White’s failure-to-consult claims fail on the merits. Id. at 7–10. And no evidentiary hearing is required, the government asserts, because the § 2255 Motion is untimely, and White’s allegations do not suggest a basis for equitable tolling. Id. at 10–11.

In his Reply (Civ. Doc. 8) and attached affidavit (Civ. Doc. 8-1), White mainly reasserts the merits of his claims without directly addressing the government’s statute-of-limitations argument. However, he says he did not file a § 2255 motion earlier because he was unaware of his federal appellate rights,

he was remanded into state custody right after sentencing (where materials on federal law were unavailable), and it was not until he arrived at a federal facility in 2019 and met a jailhouse lawyer that he learned about his federal appellate rights and the alleged sentencing error under § 5G1.3(b). Reply at 5;

see also Affidavit ¶ 6. The Court liberally construes these allegations as White’s response to the government’s statute-of-limitations argument. III. AEDPA’s Statute of Limitations 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 statute of limitations 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. “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)). In other words, the alternative trigger dates under §§ 2255(f)(2)–(4) tend to be the exception, not the norm. The statute of limitations applies on a claim-by-claim basis. Zack v. Tucker, 704 F. 3d 917, 918 (11th Cir. 2013).

IV. Discussion

A. The statute of limitations

White’s § 2255 Motion is untimely because he filed it over two years after his conviction and sentence became final, § 2255(f)(1), and he does not allege facts showing that §§ 2255(f)(2), (3), or (4) apply. Nor does White allege facts showing that equitable tolling can salvage his § 2255 Motion.⁴

… created by governmental action in violation of the Constitution or laws of the United States” and which prevented him from filing the claims in his § 2255 Motion. 28 U.S.C. § 2255(f)(2). White alleges that he lacked access to federal law materials while incarcerated at a state prison, Reply at 5, but “[t]he mere inability of a prisoner to access the law library is not, in itself, an unconstitutional impediment” and White fails to show “that this inability caused an actual harm.” Akins v. United States, 204 F. 3d 1086, 1090 (11th Cir. 2000). White also does not assert any right newly recognized by the United

States Supreme Court and which applies retroactively on collateral review. 28 only his appellate rights and the Court’s decision to run his federal sentence consecutively with his state sentences for burglary. U.S.C. § 2255(f)(3). Nor does White show that “the facts supporting the claim or claims presented” could not have been discovered “through the exercise of due diligence” until a year before he filed the § 2255 Motion. 28 U.S.C. § 2255(f)(4). This provision does not extend the statute of limitations for White because he does not describe exercising due diligence in discovering the facts supporting his claims. White states that after sentencing he was sent to a state prison where there were no federal law materials. Reply at 5. But the lack of law materials has nothing to do with White’s ability to discover the facts supporting his claims. Besides, White does not describe any effort to request federal law materials, to discover the facts supporting his claims, or to otherwise preserve his rights. Instead, White did nothing until he arrived at a federal facility and met a jailhouse lawyer two years after he was sentenced. See Reply at 5; Affidavit ¶¶ 5, 6. These facts do not show “due diligence.”

Moreover, White’s claims rely on facts he would have known about well over a year before he filed the § 2255 Motion. In Grounds One and Three, White alleges that trial counsel failed to (1) consult him about his right to appeal even though he was visibly upset about his sentence and (3) advise him that he had

14 days to file a notice of appeal and that as an indigent person he would be entitled to the assistance of appointed counsel. White would have known that counsel had failed to consult him about these things by the time the sentencing hearing ended, or at the latest, by the time counsel informed him by letter that an appeal would not be filed.⁵ White does not allege that, between his judgment becoming final and him filing the § 2255 Motion, he believed counsel was pursuing an appeal. Cf. Aragon-Llamos v. United States, 556 F. App’x 826, 829– 30 (11th Cir. 2014) (defendant was entitled to evidentiary hearing on whether his § 2255 motion was timely where he requested that his attorney file an appeal, the attorney’s assistant assured defendant’s family many times that an appeal was moving forward, and defendant only discovered belatedly that no appeal was filed).⁶ To the contrary, White admits that he received a letter from counsel on June⁶, 2017, in which she informed him that the Judgment had been entered on May 31, 2017, and that she “agree[d] with [White’s] decision”

White cannot fall back on equitable tolling to save his § 2255 Motion. Equitable tolling “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).

White suggests that he did not file a § 2255 motion earlier because (1) he was unaware of his federal appellate rights, (2) he went to a state prison right after sentencing, where the library had no federal law materials, and (3) he did not learn about his federal appellate rights or the alleged § 5G1.3 sentencing error until he arrived at a federal facility in 2019, where he met a jailhouse lawyer. See Reply at 5; see also Affidavit ¶ 6.7 However, White fails to describe

485 F. 3d 1273, 1282 n.4 (11th Cir. 2007). And White’s alleged lack of access to federal legal materials while in state custody is not an “extraordinary circumstance” that justifies equitable tolling. See Akins, 204 F. 3d at 1089–90; Paulcin v. McDonough, 259 F. App’x 211, 213 (11th Cir. 2007). As a result,

White is not entitled to equitable tolling of § 2255(f)’s statute of limitations.

V. Conclusion

Having considered the parties’ filings and arguments, the Court has determined that White’s § 2255 Motion is barred by § 2255(f)’s statute of limitations. Neither § 2255(f)’s alternative trigger dates nor equitable tolling can render the motion timely. For these reasons, it is hereby ORDERED: 1. Petitioner Jefferage Capice White’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1) is DISMISSED.

2. The Clerk should enter judgment for the United States and against White and close the file. 3. If White appeals the denial of his motion, 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 in this case. Such termination will serve as a denial of the motion. DONE AND ORDERED at Jacksonville, Florida this 1st day of July, 2022.

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BRIAN/S . DAVIS

United States District Judge le 19 Copies: Counsel of record Petitioner