Michael Donald Dodd v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16134 April 16, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket Nos. 01-01347-CV-FAM
and 93-00304 CR-FAM

MICHAEL DONALD DODD,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(April 16, 2004)

Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE*, Judge.

MARCUS, Circuit Judge:

*
Honorable R. Kenton Musgrave, Judge, United States Court of International Trade,
sitting by designation.
 Michael Donald Dodd, a federal prisoner, appeals the dismissal of his

petition to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255.

Dodd claims that his conviction violated both the Sixth Amendment and the Due

Process Clause because the district court failed to charge the jury that in order to

find him guilty of engaging in a continuing criminal enterprise (“CCE”), in

violation of 21 U.S.C. § 848, it had to find him guilty of each constituent

violation by a unanimous vote. The district court dismissed Dodd’s petition after

adopting a Report and Recommendation from a magistrate judge which

concluded that Dodd had failed to file his § 2255 application within the one-year

statute of limitations applicable to such motions under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2255(1)-(4). After

thorough review of the record and the parties’ briefs, we find no reversible error

and affirm.

I.

The factual background of this case is relatively straightforward, and we

offer only the following brief summary of the relevant facts and procedural

history. On June 25, 1993, a grand jury sitting in the United States District Court

for the Southern District of Florida charged Dodd by superseding indictment with

knowingly and intentionally engaging in a CCE, in violation of 21 U.S.C. §§ 841

2
and 846 (“Count I”); conspiring to possess with intent to distribute marijuana (as

part of Count I’s CCE), in violation of 21 U.S.C. § 841(a)(1) (“Count II”);

conspiring to possess with intent to distribute cocaine (as part of Count I’s CCE),

in violation of 21 U.S.C. § 841(a)(1) (“Count III”); and sixteen counts of using

and possessing a passport obtained by false statement, in violation of 18 U.S.C. §

1546(a) (“Counts IV-XIX”), arising out of his leadership role in the “Spangler

Posse,” a large Jamaican drug distribution network based in New York City, from

the 1970’s through at least the 1980’s.

After trial by jury, Dodd was found guilty as to all counts except for Count

III. The district court imposed a 360-month term of imprisonment, followed by

five years of supervised release. On May 7, 1997, we affirmed his conviction on

direct appeal. See United States v. Dodd, 111 F.3d 867 (11th Cir. 1997) (per

curiam). Dodd did not petition the Supreme Court for certiorari, and his

conviction became final on August 6, 1997, when the time for filing a petition for

certiorari expired.1

1
This Court has held that when a prisoner does not file a petition for certiorari, “within the
meaning of § 2255 . . . the judgment becomes final on the date on which the defendant’s time for
filing such a petition expires.” Kaufmann v. United States, 282 F.3d 1336, 1339 (11th Cir.) (internal
quotation marks omitted), cert. denied, 537 U.S. 875, 123 S. Ct. 287, 154 L. Ed. 2d 127 (2002).
Similarly, the Supreme Court has indicated that convictions become final when a judgment of
conviction has been rendered, the availability of appeal exhausted, and the time for a petition for
certiorari elapsed or a petition for certiorari finally denied. Griffith v. Kentucky, 479 U.S. 314, 321
n.6, 107 S. Ct. 708, 712 n.6, 93 L. Ed. 2d 649 (1986). The period in which a petition for certiorari

3
 On April 4, 2001, more than three years later, Dodd filed this § 2255

petition, arguing that his Sixth Amendment and due process rights were violated

because the jury in his underlying criminal case was not instructed that to find

him guilty of the CCE count, it had to find him guilty of each constituent

violation by a unanimous vote. Dodd based his argument on the Supreme Court’s

June 1, 1999, decision in Richardson v. United States, 526 U.S. 813, 119 S. Ct.

1707, 143 L. Ed. 2d 985 (1999) (holding that to find a defendant guilty on a CCE

count, a jury must find the defendant guilty by a unanimous vote of each of the

constituent violations of the CCE).

In its response to Dodd’s petition, the government argued that Dodd’s

motion was time-barred, because it had been filed well beyond AEDPA’s

one-year limitations period.2 While the government conceded that the date the

must be filed ordinarily ends ninety (90) days after the entry of judgment. Sup. Ct. R. 13. In this
case, Dodd did not file a petition for certiorari, and his conviction became final 91 days after this
Court affirmed his conviction on May 7, 1997.
2
AEDPA provides, at 28 U.S.C. § 2255, paragraph 6:

A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from . . .

....

(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[.]

4
statute of limitations begins to run for a Richardson claim is unsettled in this

Circuit, it urges us to hold that AEDPA’s one-year statute of limitations period

began to run on June 1, 1999, the day the Supreme Court decided Richardson.

Under these circumstances, Dodd’s petition -- filed almost two years later --

plainly would be untimely unless the statute of limitations were somehow tolled.

Dodd responds that the one-year statute of limitations period for

Richardson claims did not begin to run until April 19, 2002, when this Court

made Richardson retroactively applicable to cases on collateral review in Ross v.

United States, 289 F.3d 677 (11th Cir. 2002), cert. denied, 537 U.S. 1113, 123 S.

Ct. 944, 154 L. Ed. 2d 787 (2003). If we adopt this date as the trigger for the

statute of limitations, then any motion filed prior to April 19, 2003 -- including

Dodd’s -- would be timely.

In the alternative, Dodd says that even if the limitations period began to run

immediately after Richardson was decided, it should be equitably tolled from

October 25, 1999, to September 11, 2000, during which time he was in custody of

the U.S. Marshal, did not have access to his legal papers, and was impeded from

filing his motion. On October 25, 1999, Dodd was transported from the federal

correctional facility in Talladega, Alabama, where he maintained his legal papers,

to the federal detention center in Miami, Florida, pursuant to a writ of habeas

5
corpus ad testificandum issued by the United States Attorney for the Southern

District of Florida. During his time in Miami, Dodd’s papers remained in

Talladega. He was returned to Talladega on September 11, 2000.

Dodd filed his § 2255 motion approximately seven months later, on April

4, 2001. Subsequently, on October 18, 2001, the magistrate judge issued a Report

and Recommendation concluding that Dodd’s motion should be dismissed

because (1) the motion was filed more than one year after the Supreme Court’s

decision in Richardson, and was thus time-barred, and (2) Dodd failed to

demonstrate that the circumstances surrounding his late filing were extraordinary

or could not have been overcome with due diligence. The district court adopted

the magistrate judge’s Report and Recommendation on October 31, 2001, and

dismissed Dodd’s motion as time-barred.

The district court granted Dodd a Certificate of Appealability on the issue

of whether the limitations period should have been equitably tolled. This Court

subsequently expanded the Certificate of Appealability to include the following

issue:

[F]or purposes of a newly recognized right, pursuant to 28 U.S.C. §
2255(3), does the one-year statute of limitations begin to run on the
date the Supreme Court initially recognized the right, or does it begin
on the date a court first held that the right is recognized retroactively
on collateral review?

6
This question -- regarding the date from whence the one-year limitations period

of 28 U.S.C. § 2255(3) begins to run -- has generated a split among our sister

Circuits. Compare United States v. Lopez, 248 F.3d 427, 432-33 (5th Cir. 2001)

(concluding that limitations period begins to run on the date Supreme Court

initially recognizes new right), Nelson v. United States, 184 F.3d 953, 954 (8th

Cir. 1999) (same), Triestman v. United States, 124 F.3d 361, 371 n.13 (2d Cir.

1997) (stating same in dicta) and Donaldson v. United States, Nos. 01-CV-

1061(NPM) & 92-CR-51-001, 2002 WL 1839213 at *4 (N.D.N.Y. Aug. 6, 2002)

(following Triestman) with Ashley v. United States, 266 F.3d 671, 673-74 (7th

Cir. 2001) (concluding that the limitations period begins to run on the date when

the new right is declared to be retroactively applicable on collateral review),

United States v. Valdez, 195 F.3d 544, 547-48 (9th Cir. 1999), United States v.

Lloyd, 188 F.3d 184, 187-88 (3d Cir. 1999) (assuming that limitations period

begins to run only after either Supreme Court’s own retroactivity decision or

decision by Court of Appeals declaring right retroactively available on collateral

review within the relevant circuit), and Berthoff v. United States, 140 F. Supp. 2d

50, 59-60 (D. Mass. 2001) (“[T]his Court . . . believes the better interpretation of

section 2255(3) is that the new limitations period should run from the date on

7
which either the Supreme Court or the controlling circuit court holds the new

right to be retroactive on collateral review.”).

After thoroughly reviewing the record and the briefs, as well as the

conflicting case law as to when the limitations period in § 2255(3) begins

running, we affirm the dismissal of Dodd’s § 2255 motion. In doing so, we join

those circuits which have concluded that the limitations period in § 2255(3) is

triggered on the date the Supreme Court initially recognizes a new right. We

further hold that Dodd has failed to present sufficient evidence to support the

application of the doctrine of equitable tolling, an “extraordinary remedy” which

we apply only “sparingly.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000)

II.

This Court reviews de novo a district court’s determination “that a petition

for federal habeas corpus relief was time-barred,” Bridges v. Johnson, 284 F.3d

1201, 1202 (11th Cir. 2002), as we review all issues concerning statutory

interpretation. Kaufmann, 282 F.3d at 1337; see also United States. v.

Hooshmand, 931 F.2d 725, 737 (11th Cir. 1991). Likewise, we review de novo a

“district court’s determination that equitable tolling is inapplicable . . . .” Steed,

219 F.3d at 1300. However, a district court’s determinations of the facts relevant

to a petitioner’s equitable tolling claim “will be reversed only if clearly erroneous.

8
. . . This standard requires us to affirm a district court’s findings of fact unless

‘the record lacks substantial evidence’ to support that determination.” Drew v.

Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002) (citing Dorsey v. Chapman,

262 F.3d 1181, 1185 (11th Cir. 2001) and quoting Lightning v. Roadway

Express, Inc., 60 F.3d 1551, 1558 (11th Cir. 1995)), cert. denied, 537 U.S. 1237,

123 S. Ct. 164, 155 L. Ed. 2d 205 (2003). “We have squarely held that a

determination regarding a party’s diligence is a finding of fact that ‘will not be

disturbed unless clearly erroneous.’” Id. (quoting Walters v. City of Atlanta, 803

F.2d 1135, 1145 (11th Cir. 1986)).

III.

We address, first, whether the district court erred in determining that, for

the purposes of a newly recognized right, pursuant to 28 U.S.C. § 2255(3),

AEDPA’s one-year statute of limitations begins to run on the date when the

Supreme Court initially recognizes the right.

Subsection (3) of § 2255 provides that the statute’s one-year period of

limitation shall run from “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[.]”

28 U.S.C. § 2255(3).

9
 We have recognized, as have the other circuits, that Richardson established

a newly created right within the meaning of § 2255(3). See Ross, 289 F.3d at

681; see also Santana-Madera v. United States, 260 F.3d 133, 139 (2d Cir. 2001);

Lopez, 248 F.3d at 432; Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000).

Indeed, the government has expressly conceded this point. Appellees’ Brief at 6

(“Dodd is correct in his assertion that the Supreme Court recognized a new right

in Richardson.”).

There is likewise no doubt that the new right announced in Richardson is

retroactively available on collateral review. See Ross, 289 F.3d at 681 (11th Cir.

2002). Neither party contends that § 2255(3) requires that the retroactivity

decision be made by the Supreme Court; rather, any court may do so. As a panel

of this Court noted, every circuit to consider this issue has held that a court other

than the Supreme Court can make the retroactivity decision for purposes of §

2255(3). Garcia v. United States, 278 F.3d 1210, 1213 n.4 (11th Cir.) (citing

Lopez, 248 F.3d at 431; Ashley, 266 F.3d at 673-74), cert. denied, 537 U.S. 895,

123 S. Ct. 180, 154 L. Ed. 2d 163 (2002);3 see also United States v. Swinton, 333

3
In Garcia, a panel of this Court recognized but did not decide the issue of when the §
2255(3) limitations period begins to run. See 278 F.3d at 1213 n.5. In that case, we identified the
question as “whether the one-year limitation period begins to run on the date on which the right is
initially recognized by the Supreme Court, or the date on which it is held retroactively applicable by
the court of appeals or the Supreme Court[,]” and observed that:

10
 F.3d 481, 487 (3d Cir.) (“We conclude -- and the parties agree -- that the statute

of limitations provision of § 2255 allows district courts and courts of appeals to

make retroactivity decisions.”), cert. denied, 124 S. Ct. 458, 157 L. Ed. 2d 330

(2003).4

While Dodd’s motion meets the substantive requirements of § 2255(3) -- it

is based on a new right identified by the Supreme Court in Richardson made

retroactively applicable to cases on collateral review -- the critical question

[t]here is a split among the circuits on how these questions should be answered. . .
. It might present a problem to conclude both that the limitation begins to run when
the Supreme Court initially recognizes the right and that a petitioner may not rely on
that right until there is controlling circuit authority holding the right retroactively
applicable to cases on collateral review, because in that case the opportunity for
review offered by § 2255(3) would largely evaporate: as previously noted, it often
happens that more than a year elapses before a right newly recognized by the
Supreme Court is held to be retroactively applicable by an appellate court. In light of
the circuit split and the absence of controlling authority in this Circuit, prudent
petitioners will treat the earlier date -- the date on which the right is newly recognized
by the Supreme Court -- as the date on which the one-year limitation period begins
to run.

278 F.3d at 1213 n.5.
4
The Fourth Circuit interpreted § 2255 in a case involving a second or successive habeas
petition, noting in a footnote that “since the Supreme Court has not yet ruled on the collateral
availability of the rule . . . the limitations period has not yet begun to run,” In re Vial, 115 F.3d 1192,
1197 n.9 (4th Cir. 1997) (en banc). As we noted in Garcia, however, that case involved a second or
successive petition, rather than an initial petition, as in the instant case. See Garcia, 278 F.3d 1210,
1213 n.4. The section of law pertinent to second or successive petitions explicitly requires the
retroactivity determination to be made by the Supreme Court, stating that a court of appeals may
authorize a second or successive application if it would rest on “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255 ¶ 8 (2) (emphasis added).

11
remains whether his motion is timely. To state the issue in more specific terms,

since Dodd filed his motion on April 4, 2001, it would not be timely if the one-

year limitations period in § 2255(3) began to run on June 1, 1999, when the

Supreme Court first recognized the new right by deciding Richardson. If,

however, the statute of limitations did not begin to run until April 19, 2002, when

this Court held in Ross that the newly created Richardson right was retroactively

available on collateral review, then Dodd’s motion was timely filed well before

the limitations period ended on April 19, 2003.

We begin with the plain language of the statute in question. See Harris v.

Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc) (noting that “courts should

always begin the process of legislative interpretation, and . . . often should end it

as well, . . . with the words of the statutory provision.”). Here, as the Second

Circuit noted, “the statute provides that the limitations period begins to run on

‘the date on which the right asserted was initially recognized by the Supreme

Court,’ 28 U.S.C. § 2255 (emphasis added), which may be different from the date

on which the right is later made retroactively available to cases on collateral

review.” Triestman, 124 F.3d at 371 n. 13. There is no reason to read the

unambiguous term “initially” as signifying anything other than its common-sense

and ordinary meaning of “from the beginning.” See Webster’s Third New

12
International Dictionary 1164 (1961) (defining “initially” to mean “in the first

place” and “at the beginning”). See also In re Griffith, 206 F.3d 1389, 1393 (11th

Cir. 2000) (en banc) (“In interpreting the language of a statute, we generally give

the words used their ordinary meaning.” (internal quotation marks and citations

omitted)).

If the one-year limitation period runs only from the date on which the

Supreme Court initially recognized the new right, we must determine the purpose

of the qualifying clause that follows: “if that right has been newly recognized by

the Supreme Court and made retroactively applicable to cases on collateral

review.” 28 U.S.C. § 2255(3). It would not be logical for Congress to have

enacted a strict one-year time limitation and then qualified that time frame by

reference to ambiguous events. Rather, we believe Congress was simply

reiterating the obvious: that § 2255(3) provides a narrow exception which can be

relied upon only when the new right recognized by the Supreme Court can be

retroactively applied on collateral review. Thus, the second clause in § 2255(3)

qualifies the right asserted -- not the time limit.5

5
As the Fifth Circuit noted, “[t]he portion of § 2255(3) that triggers [the] limitations
period contains the phrase ‘right asserted.’ Subsequently, ‘that right’ is limited by the retroactivity
requirement. Therefore the retroactivity on collateral review aspect is not contained within the term
‘right[,]’” Lopez, 248 F.3d at 433 (emphasis added), but rather qualifies and limits it.

13
 Put simply, if Congress intended the limitations period to begin running

when a right was made retroactive, it could easily have said the limitation period

shall run from the date on which a right newly recognized by the Supreme Court

has been made retroactively applicable on collateral review. Instead, Congress

has written that “[t]he limitation period shall run from . . . the date on which the

right asserted was initially recognized by the Supreme Court . . . .” 28 U.S.C. §

2255(3) (emphasis added). There is no reason to believe that Congress intended

this unequivocal phrase to mean anything other than what it says. See United

States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (“[W]e must

presume that Congress said what it meant and meant what it said.” (citing

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149,

117 L. Ed. 2d 391 (1992))).

We turn then to the problem that a panel of this Court recognized in

Garcia: that the opportunity for review presented by § 2255(3) would disappear

if, at the same time we concluded that the limitation period begins to run when

the Supreme Court initially recognizes the right, we also determined that a

petitioner could not rely on that right until there is controlling circuit authority

holding the right retroactively available. Garcia, 278 F.3d at 1213 n.5; see also

Ashley, 266 F.3d at 673-74 (under such an interpretation, § 2255(3) would be a

14
“mirage,” given that more than a year can elapse between Supreme Court decision

and retroactivity ruling). While our holding today embraces the former

proposition, we explicitly reject the latter.

Implicit in the conclusion that any court may make the retroactivity

decision is the necessary inference that a petitioner need not wait for a controlling

decision before filing his petition. Because a petitioner need not wait for the

Supreme Court to address the issue of retroactivity, he may assert a claim in a

district court as soon as a new right is recognized by the Supreme Court -- in the

hope, of course, that the district court will find the new right retroactively

available on collateral review. See Swinton, 333 F.3d at 487 (“the statute of

limitations provision of § 2255 allows district courts and courts of appeals to

make retroactivity decisions.”). Under this interpretation, therefore, a petitioner

may file a § 2255(3) motion immediately after the Supreme Court decision

announcing the right upon which the motion is based.

As a result, our analysis favors petitioners hoping to benefit from new rules

announced by the Supreme Court. In cases based on Richardson rights, under our

analysis, a petitioner could have filed a § 2255(3) motion immediately after the

decision, or as early as June 2, 1999. Under the interpretation urged by Dodd,

however, where the limitations period is not triggered until the right is made

15
retroactively applicable, petitioners in this Circuit would have had to wait to file

until this Court decided Ross in April 2002, meaning that prisoners would have to

sit on their rights for almost three years. And in other circuits, where even more

time elapsed before a decision on retroactivity was made, the wait could be even

longer. Finally, if all petitioners faithfully awaited a retroactivity decision before

asserting their rights -- a situation theoretically possible if not practically

imaginable -- the Supreme Court and the circuits might never have occasion to

make a retroactivity decision and the one-year window for filing a § 2255(3)

motion might never open.

Moreover, Dodd’s argument loses much of its force when we observe that

in his own case he did not stand idly by for the three years before Ross was

decided: indeed, Dodd filed his motion more than a year before that decision.

Here, Dodd’s actions speak louder than his words, and suggest that, at bottom, his

argument really is that a petitioner may file a § 2255(3) motion beginning

immediately after the Supreme Court announces a new right, and at any time up

until one year after the first retroactivity decision is handed down. For motions

relying on Richardson in this Circuit, then, Dodd effectively urges a limitations

period of nearly four years, from June 1, 1999, when Richardson was decided,

until April 19, 2003, a year after the Ross decision. This putative four-year

16
period of limitations -- a period which could be significantly longer in many

circumstances -- cannot be squared with AEDPA’s unambiguous intention to

bring certainty to this area of the law, and to give petitioners but a single year in

which to file their claims.

Moreover, if we adopted Dodd’s analysis and concluded that the

limitations period in § 2255(3) did not begin to run until controlling circuit

authority held a right retroactively applicable to cases on collateral review, this

would yield not only different start dates in different jurisdictions, but also would

result in uncertain limitations periods throughout the nation. The limitations

period in each federal circuit could have a different start date, depending on when

the retroactivity issue was decided there. In different circuits, petitioners would

have to sit on their hands for different lengths of time, unable to assert their

claims until after a retroactivity decision was made for the one-year window of

opportunity to open.6

Alternatively, if the period began immediately after the Supreme Court

decision and lasted until a year from the first retroactivity decision, each circuit

6
We note further that, even within a single circuit, retroactivity decisions by different
district courts would arguably trigger the limitations period at different times, injecting still further
uncertainty into the determination of the appropriate limitations period. Moreover, more than a year
might often elapse between the time a district court initially found a new right retroactively available
on collateral review and the time the circuit court reviewed that decision.

17
would effectively have a different statute of limitations, many of which could

stretch on for years. See Lopez, 248 F.3d at 433 (noting that if the limitations

period only begins with the retroactivity decision, multiple situations could arise

in which “the limitations period would never be triggered, and any petitioner’s

out-of-time motion would be timely, a likely unintended consequence by

Congress.”). So unpredictable and inconsistent a result would neither further the

interest of judicial efficiency nor be consonant with the intent of a statute which,

on its face, plainly aims to establish a single, uniform statute of limitations.

Because we interpret the limitations period according to its plain language,

and consistently with the policy choices underlying AEDPA, we conclude that the

one-year window of opportunity in which Dodd could have timely filed a habeas

petition asserting the right recognized in Richardson opened on June 1, 1999,

when that case was decided, and closed one year later. Since Dodd did not file

his § 2255 motion until April 4, 2001 (almost three years later), the district court

properly determined that it was time-barred, unless the statute of limitations was

equitably tolled.

IV.

18
 We are unpersuaded by Dodd’s alternative argument that the district court

erred in concluding that he was not entitled to “equitable tolling.”7

Dodd says that even if we hold that the limitations period embodied in §

2255(3) began to run immediately after the Richardson decision, his motion is

still timely because of equitable tolling from October 25, 1999 to September 11,

2000. Dodd explains that 146 days elapsed between the Richardson decision on

June 1, 1999, and his transfer from Talladega on October 25, 1999, and that 205

days elapsed between his return to Talladega on September 11, 2000, and the time

he filed his motion on April 4, 2001. Thus, Dodd argues, if the statute of

limitations were tolled during the time Dodd was away from Talladega, only 351

days (146 + 205 days) would have elapsed from the date of the Richardson

decision to Dodd’s filing, bringing his motion within the one-year limitations

7
In addition to arguing for equitable tolling, Dodd also suggested in the district court that
his motion was timely based on 28 U.S.C. § 2255(2), which provides that the one-year statute of
limitations begins after “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.” This
issue is beyond the scope of Dodd’s Certificate of Appealability (“COA”), and therefore not properly
reviewed by this Court. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (“[W]e
hold that in an appeal brought by an unsuccessful habeas petitioner, appellate review is limited to
the issues specified in the COA.”). Moreover, even if the issue were properly before us, Dodd’s
contentions would still fail. As a panel of this Court held in Akins v. United States, in order to
prevail under § 2255(2), an alleged governmental impediment must be unconstitutional, one that is
“not ‘reasonably related to legitimate penological interests.’” 204 F.3d 1086, 1090 (11th Cir. 2000)
(citation omitted). Dodd does not argue that his time spent in the custody of the U.S. Marshal in
Miami was unconstitutional, and thus, this detention cannot support a claim under § 2255(2).

19
period. See Knight v. Schofield, 292 F.3d 709, 712 (11th Cir. 2002) (explaining

that “the clock is stopped while tolling is in effect”).

Dodd also says that during the period after his return to Talladega, he spent

considerable time trying to obtain documentation, and that the government would

not provide him with the necessary material until he filed suit under the Freedom

of Information Act, 5 U.S.C. § 552. Dodd seems to suggest, therefore, that his

motion was filed as swiftly as was possible under the circumstances. He does not

contend, however, that he made any attempt to have his legal papers forwarded to

him while he was in Miami.

The government responds that equitable tolling is not applicable here,

given the nearly five months Dodd had to file a motion based on Richardson

before his transfer to Miami and the seven additional months he spent after his

return to Talladega before filing his motion. Thus, the government urges, Dodd

has not shown that his untimely filing was due to extraordinary circumstances

beyond his control and otherwise unavoidable even with due diligence.

While equitable tolling is an “extraordinary remedy which is typically

applied sparingly,” Steed, 219 F.3d at 1300, it “can be applied to prevent the

application of AEDPA’s statutory deadline when ‘extraordinary circumstances’

have worked to prevent an otherwise diligent petitioner from timely filing his

20
petition.” Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir.

2001); see also Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)

(holding that the limitations period may be equitably tolled where “a movant

untimely files because of extraordinary circumstances that are both beyond his

control and unavoidable even with diligence” (emphasis added)). “The burden

of establishing entitlement to this extraordinary remedy plainly rests with the

petitioner.” Drew, 297 F.3d at 1286. To establish diligence, then, the petitioner

must present evidence showing reasonable efforts to timely file his action. Id. at

1287-89.

In Akins, a panel of this Court held that equitable tolling was inapplicable

for periods of various lockdowns or during a period in which the movant’s legal

papers were misplaced by the prison. 204 F.3d at 1089-90. It is true that the

facts of Akins are distinguishable from the case at hand, as the § 2255 movant

there had failed to act for four years prior to the enactment of AEDPA, at least

seven months after he obtained a transcript which he deemed necessary to his

case, and at least six months after the enactment of AEDPA. Nonetheless, Akins

suggests that lockdowns and periods in which a prisoner is separated from his

legal papers are not “extraordinary circumstances” in which equitable tolling is

appropriate.

21
 While Dodd contends that the limitations period in § 2255(3) should have

been tolled during the period he was detained in Miami and did not have access to

his papers, we cannot discern sufficient evidence in this record to establish that

the circumstances were truly extraordinary. Dodd does not suggest, let alone

argue that his detention was unconstitutional or somehow inappropriate, or that

the transfer of a prisoner from one facility to another is anything but a routine

practice.

Nor has Dodd shown that he acted with the diligence required to render

equitable tolling appropriate to this case. Following the Richardson decision,

Dodd had nearly five additional months with no impediments to stop him from

preparing or filing a § 2255 motion. Moreover, Dodd has presented no evidence

to show that, while he was in custody in Miami, he made any request to have his

papers delivered to him,8 attempted to contact counsel to assist him with timely

8
On appeal, Dodd’s counsel asserts that Dodd was prevented from taking his legal
materials with him to Miami “[p]ursuant to a policy of the Federal Bureau of Prisons,” thus
apparently implying that his failure to exercise diligence in requesting his legal papers should be
excused for futility. Appellant’s Brief at 24. However, Dodd’s counsel does not direct our attention
to such a policy, citing only an Inmate Personal Property Record -- an inventory of his property
stored at Talladega -- appended as an exhibit to Dodd’s Reply to the Government’s Response to his
§ 2255 Motion. Notably, in his Reply, Dodd cites this exhibit only to prove that his files remained
in Talladega, not that they were maintained there, against his wishes, pursuant to a particular policy.
The unsupported suggestion of futility, without more, is insufficient to defeat the diligence required
in this context. Nor would this period excuse the failure to act for the seven months after he was
returned to Talladega.

22
filing his motion, or otherwise undertook any action that would suggest

reasonable diligence under the circumstances. Indeed, Dodd has not claimed that

he made any specific efforts to file his motion within the established limitations

period, either in the five months before he was transferred to Miami or in the

seven months after his return to Talladega.

Simply put, Dodd has not shown with any degree of particularity what

efforts he made that would even arguably constitute an appropriate degree of

diligence for someone in his situation. Nor, finally, has he demonstrated why, if

he had acted with the diligence plainly required to trigger the doctrine of

equitable tolling, he could not have filed within the one-year period. Quite

simply, we cannot conclude that the district court’s finding that Dodd failed to

demonstrate due diligence was clearly erroneous, and, as a result, Dodd’s “lack of

diligence bars us from reaching out and granting the rare and extraordinary

remedy of equitable tolling.” Drew, 297 F.3d at 1290 n.5.

V.

Accordingly, we hold today that, for the purposes of a newly recognized

right under 28 U.S.C. § 2255(3), the one-year statute of limitations begins to run

on the date the Supreme Court initially recognizes the right. As a result, Dodd’s §

2255 motion, filed nearly two years after the Supreme Court initially recognized

23
the new right in Richardson, is barred by the applicable one-year limitations

period. Moreover, Dodd is not entitled to equitable tolling of the limitations

period because he has shown neither extraordinary circumstances nor the

diligence necessary to toll the statute. It follows that the district court did not err

in dismissing Dodd’s § 2255 motion as untimely.

AFFIRMED.

24