     Case: 11-30418       Document: 00512061667         Page: 1     Date Filed: 11/23/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 23, 2012
                                     No. 11-30418
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

DAVID O. WILLIAMS,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 2:11-CV-61


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David O. Williams, now federal prisoner # 10797-078, was convicted of
conspiracy to possess with intent to distribute methamphetamine. United States
v. Williams, 314 F. App’x 656 (5th Cir. 2009) (affirming conviction). Williams
has appealed the district court’s order dismissing his motion challenging that
conviction under 28 U.S.C. § 2255 as untimely filed.
       A one-year limitation period applies to § 2255 motions. 28 U.S.C. §
2255(f). The limitation period runs from, inter alia, “the date on which the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 11-30418      Document: 00512061667      Page: 2    Date Filed: 11/23/2012

                                   No. 11-30418

judgment of conviction becomes final.” Id. § 2255(f)(1). Williams’s conviction
became final on October 5, 2009, the date on which the Supreme Court denied
his petition for a writ of certiorari. See United States v. Thomas, 203 F.3d 350,
355-56 (5th Cir. 2000). The limitation period lapsed one year later, on October
5, 2010. See id.
      Previously, we granted a certificate of appealability permitting Williams
to raise the question whether the district court erred in determining that
Williams failed to file his § 2255 motion before the expiration of the limitation
period without first developing the record with respect to the question whether,
in attempting to file his § 2255 motion, Williams complied with procedures
established at FCC-Victorville pertaining to the processing of legal mail. Order,
United States v. Williams, No. 11-30418 (5th Cir. Apr. 5, 2012). This court’s
review of this question is for an abuse of discretion. See United States v. Cavitt,
550 F.3d 430, 435 (5th Cir. 2008).
      To be entitled to an evidentiary hearing, a prisoner must produce
independent indicia of the likely merit of his allegations. Id. at 441-42; United
States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006). Typically, independent
indicia of the merit of a prisoner’s allegations is provided in the form of affidavits
from reliable third parties. United States v. Cervantes, 132 F.3d 1106, 1110 (5th
Cir. 1998). “If, however, the defendant’s showing is inconsistent with the bulk
of [his] conduct or otherwise fails to meet [his] burden of proof in the light of
other evidence in the record, an evidentiary hearing is unnecessary.” Id.
      Although Williams filed a sworn declaration in the district court stating
that he submitted his § 2255 motion to prison authorities for filing in accordance
with prison rules and regulations for the mailing of legal mail, Williams has not
produced independent indicia of the likely merit of his allegations. See Cavitt,
550 F.3d at 441-42. Various inmate request forms submitted by Williams to
corroborate his allegations are of limited probative value because they do not
include responses of prison staff, and Williams’s statements in his declaration

                                          2
    Case: 11-30418    Document: 00512061667     Page: 3   Date Filed: 11/23/2012

                                 No. 11-30418

are inconsistent with his subsequent conduct. See Medley v. Thaler, 660 F.3d
833, 835-36, 838, 840 (5th Cir. 2011); Cervantes, 132 F.3d at 1110. Williams has
not shown that the district court abused its discretion in failing to develop the
record with respect to his allegations regarding the attempted mailing of his §
2255 motion. See Cavitt, 550 F.3d at 441-42. Moreover, even if we assume that
the allegations in Williams’s declaration are true, we conclude that Williams has
not shown that he complied with prison rules and regulations for the submission
of legal mail. For that reason, he is not entitled to the benefit of the mailbox
rule. See Medley, 660 F.3d at 838; see also Dison v. Whitley, 20 F.3d 185, 187
(5th Cir. 1994). The judgment is AFFIRMED.




                                       3
