            Case: 18-10382   Date Filed: 04/24/2019   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10382
                         Non-Argument Calendar
                       ________________________

   D.C. Docket Nos. 8:18-cv-00014-JSM-TGW; 8:13-cr-00473-JSM-TGW-1



JIMMY LEE LANIER,

                                                           Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (April 24, 2019)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
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         Jimmy Lanier pleaded guilty to two felonies 1 without a plea agreement.

Lanier then filed a motion to vacate his sentence under 28 U.S.C. § 2255, which

the district court dismissed as untimely. Lanier now appeals, representing himself

pro se. He argues that the district court erred in dismissing his motion as untimely

because first, he filed the motion within one year of discovering the facts

supporting his claim, and second, equitable tolling applies.2 We disagree and

affirm.

         In his § 2255 motion Lanier asserted that his attorney, Mark O’Brien,

informed Lanier that O’Brien had secured a plea deal. Under this alleged deal, in

exchange for his guilty plea, Lanier would receive five years’ imprisonment and an

additional downward departure for substantially assisting the government after his

plea under Federal Rule of Criminal Procedure 35(b). Two years later, Lanier filed

a motion to compel the government to make the Rule 35 motion that he believed he

was entitled to under the plea agreement. In response, the government informed

Lanier that he did not enter into a plea agreement. Lanier argues that it was only

then that he discovered O’Brien fabricated the plea agreement. Lanier then filed a




1
 Lanier pleaded guilty to conspiracy with intent to distribute five kilograms or more of cocaine
under 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(a) and possession of a firearm in furtherance of a
drug trafficking crime under 18 U.S.C. § 924(c)(1)(A).
2
    A member of this Court granted Lanier a Certificate of Appealability on both questions.
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§ 2255 motion, asserting claims for ineffective assistance of counsel and

involuntary plea stemming from O’Brien’s alleged deception.

                                           I.

      We review de novo a district court’s determination that a § 2255 motion was

untimely. Jones v. United States, 304 F.3d 1035, 1037 (11th Cir. 2002). But we

review the district court’s determination of the relevant facts for clear error. San

Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011). We will affirm the

district court’s findings of fact unless the record lacks substantial evidence to

support them. Id. Because Lanier is proceeding pro se, we liberally construe his

pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

      There is a one-year statute of limitations for filing a § 2255 motion. 28

U.S.C. § 2255(f). As relevant to this appeal, the limitations period beings to run on

the later of “the date on which the judgment of conviction becomes final” or “the

date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.” Id. at §§ 2255(f)(1), (4). Under

the first prong, when a federal prisoner does not appeal his conviction or sentence,

the judgment of conviction is final when the time for filing a notice of appeal

expires. Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). A

defendant generally has 14 days to file a notice of appeal. Fed. R. App. P.

4(b)(1)(A).

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      Lanier argues that the latter prong, § 2255(f)(4), controls. That provision

causes the limitations period to run from “the date on which the facts supporting

the claim . . . could have been discovered through the exercise of due diligence.”

Under § 2255(f)(4), “the district court should first consider whether the petitioner

exercised due diligence.” Aron v. United States, 291 F.3d 708, 711 (11th Cir.

2002). If the petitioner did exercise due diligence, the limitation period begins to

run on the date he actually discovered the relevant facts. Id. If the petitioner did

exercise due diligence, a court is required to speculate about the date on which the

relevant facts could have been discovered. Id. at 711 n.1.

      The due diligence standard requires that a prisoner make “reasonable

efforts” to discover the factual predicate of his claim. Id. at 712. In Aron v. United

States, we held that, for purposes of an evidentiary hearing under § 2255, the

defendant exercised due diligence. 291 F.3d at 714–15. Aron alleged that he

“made ‘numerous and persistent efforts’ to obtain his appellate documents from his

attorney.” Id. at 713. The record indicated that Aron “contacted the court twice”

and “made further attempts to contact his attorney directly, but without success.”

Id. at 714.

      The district court correctly found that Lanier’s sentence was final on

November 3, 2015—14 days after the judgment of conviction on October 20, 2015.

If the first prong applies, the last day to file a § 2255 motion was November 3,

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2016. Lanier filed his motion on December 28, 2017. The district court ordered

Lanier to show cause why his motion should not be dismissed as untimely. Lanier

responded that, following his conviction, his trial counsel advised him not to file a

§ 2255 motion, but to wait for the government to file a Federal Rule of Criminal

Procedure 35 motion. According to Lanier, his counsel told him that any attempt

to appeal would void his plea agreement, and that he should wait until the one-year

statute of limitations expired to file a § 2255 motion. The district court determined

that Lanier did not exercise due diligence. The court reasoned that although “the

alleged conduct by trial counsel in fabricating a plea agreement constitutes

egregious attorney misconduct if true,” Lanier “waited more than two years before

inquiring about the Rule 35 motion.” And Lanier did not allege that his attorney

“continually told him to withhold filing a § 2255 motion or inquiring about the

Rule 35 motion.”

       The district court’s due diligence finding is not clearly erroneous. 3 Even if

Lanier’s attorney told him to wait until the statute of limitations period expired in

November 2016, Lanier does not point to any effort to discover the relevant facts

until November 2017. During this time, Lanier could have discovered with



3
  The district court did not expressly consider § 2255(f)(4), but the court considered whether
Lanier acted with due diligence in deciding whether to equitably toll the statute of limitations.
See Section II, infra. The court also expressly considered when, with due diligence, Lanier could
have discovered the government was not planning to file a Rule 35 motion. These factual
findings are sufficient to support Lanier’s lack of due diligence under § 2255(f)(4).
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reasonable diligence that the government was not planning to file a Rule 35

motion. Lanier did not, for example, contact his attorney or the court about the

Rule 35 motion, or about the effect of a § 2255 motion on any future Rule 35

motion or his apparent plea agreement. Lanier did not attempt to request from

either his attorney or the court any documents related to his plea agreement until

over a year after the statute of limitations expired. And by the time the statute of

limitations expired, Lanier was no longer assisting the government. Given

Lanier’s complete inaction during that period, the district court did not clearly err

in determining that he failed to act with due diligence.

                                          II.

      The district court equitably tolled the statute of limitations to account for

Lanier’s assertion that his attorney instructed him to wait to file his motion until

after the statute of limitations expired. But the district court concluded that

Lanier’s motion was nonetheless untimely because Lanier failed to exercise due

diligence after the statute of limitations expired. We review de novo the district

court’s decision on equitable tolling. Jones, 304 F.3d at 1037. A determination of

whether a party exercised due diligence is reviewed for clear error. San Martin,

633 F.3d at 1265.

      The limitations period under § 2255 may be equitably tolled where the

“movant untimely files because of extraordinary circumstances that are both

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beyond his control and unavoidable even with diligence.” Sandvik v. United

States, 177 F.3d 1269, 1271 (11th Cir. 1999). “[E]quitable tolling is an

extraordinary remedy [that] is limited to rare and exceptional circumstances and

typically applied sparingly.” Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.

2009) (quotation marks omitted). The movant bears the burden of establishing his

entitlement to equitable tolling. Outler v. United States, 485 F.3d 1273, 1280 (11th

Cir. 2007). To be entitled to equitable tolling, a petitioner must show both “(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).

      First, Lanier argues that the district court erred in applying equitable tolling

because the court incorrectly construed his attorney’s deceit as the “extraordinary

circumstance” that justified equitable tolling. Instead, Lanier argues that the

government’s failure to move for a substantial assistance reduction Rule 35

constitutes an “extraordinary circumstance.” We disagree. The government has

the power, but not a duty, to file a substantial assistance motion. United States v.

Dorsey, 554 F.3d 958, 960 (11th Cir. 2009). The prosecutorial discretion to refuse

to file a substantial assistance motion is subject to judicial review only if it is based

on an unconstitutional motive, such as the defendant’s race or religion, or is not

rationally related to any legitimate government end. Wade v. United States, 504

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U.S. 181, 185–86 (1992) (discussing motions under U.S.S.G. § 5K1.1); see United

States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008) (extending Wade to Rule

35(b) motions). The government’s failure to exercise its Rule 35 discretion,

especially in absence of even an allegation of improper motive, does not amount to

an extraordinary circumstance.

      Second, as discussed above, the district court’s due diligence finding was not

clearly erroneous. Although Lanier alleged in his § 2255 motion that his counsel

advised him not to file a § 2255 motion for one year, he did not allege that his

counsel gave him similar advice about a motion to compel the government to move

for a sentence reduction under Rule 35.

      The district court properly determined that Lanier’s § 2255 was untimely,

and we affirm.

      AFFIRMED.




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