Smokes v. United States

• Court: District Court, S.D. Georgia
• Decided: September 19, 2022
• Docket: 6:22-cv-00060
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION)

SAMORI JODAN SMOKES, )

Vv. CV622-060 ) CR616-010 UNITED STATES OF AMERICA, ) Respondent ORDER After a careful, de novo review of the file, the Court concurs with the Magistrate Judge’s Report and Recommendation, to which objections have been filed. CR616-010, doc. 488; CV622-060, doc. 2. Accordingly, Smokes’ objections are OVERRULED and the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Smokes’ motion is construed as a 28 U.S.C. § 2241 motion and DISMISSED for lack of jurisdiction. CR616-010, doc. 487; CV622- 060, doc. 1. The Clerk is DIRECTED to CLOSE civil action CV622- □ 060 and enter the appropriate judgment of dismissal. The Magistrate Judge recommended that Smokes’ motion be construed as a motion pursuant to 28 U.S.C. § 2241, challenging the

execution of his sentence. See generally doc. 2.1 Smokes’ Objection does

not address the Magistrate Judge’s recommended construction. See generally doc. 3. The Objection also does not address the Magistrate Judge’s analysis and recommendation that, construed as a § 2241 petition, this Court lacks jurisdiction. See doc.2 at 5-7; see also doc. 3. As discussed below, the only substantive issue raised in Smokes’ Objection concerns its viability, construed as a 28 U.S.C. § 2255 motion. The Magistrate Judge noted that a “more thorough analysis of the authority supporting Smokes’ assertion that his [United States Sentencing Guideline] § 5G1.3 challenge is cognizable under § 2255,”

was moot because such a motion would be untimely. See doc. 2 at 7

n. 4. Smokes’ Objection concedes that “[t]he 2255 motion was untimely filed,” but, charitably construed, asserts that his illiteracy constitutes grounds for equitable tolling. See doc. 3 at 1. Cf. Kicklighter v. United States, 281 F. App’x 926, 930 (11th Cir. 2008) (discussing equitable tolling of the statute of limitations for § 2255 claims). Jliteracy is not a basis for equitable tolling. See, e.g., Alexander v. Watkins, 49 F. App’x 770, 772 (10th Cir. 2002) (§ 2254 petitioner’s assertion of illiteracy,

1 The Court cites to the docket in civil action CV622-060 unless otherwise noted.

among other alleged circumstances, is “insufficient to justify equitable tolling.”); Mason v. Lindsey, 2018 WL 3587030, at *2 (6th Cir. July 19, 2018) (§ 2254 petitioner's “illiteracy and ignorance of the limitations period do not warrant [equitable] tolling.”); see also, e.g., Lee Peterson v. «

Sec’y, Dept. of Corrs., 2012 WL 12929728, at * 1 (M.D. Fla. June 26, 2012) (“Petitioner’s lack of education, ability to read, and pro se status

are not considered extraordinary circumstances that would excuse an untimely federal habeas petition.”).2, Smokes’ objection, therefore, does

not undermine the Magistrate Judge’s determination that consideration of his motion as a § 2255 motion would be futile. Accordingly, the Court ADOPTS the Magistrate J udge’s recommendation. See CR616-010, doc. 488 at 8; CV622-060, doc. 2 at 8. Smokes’ motion is construed as a 28 U.S.C. § 2241 motion and DISMISSED for lack of jurisdiction. CR616-010, doc. 487; CV622-060, doc. 1. The Clerk is DIRECTED to CLOSE civil action CV622-060 and enter the appropriate judgment of dismissal. Applying the Certificate of Appealability (COA) standards, which

are set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. 2 See Jones v. United States, 304 F.3d 1035, 1037 n. 4 (11th Cir. 2002) (“We have determined that cases interpreting the equitable tolling of the statute of limitations in 28 U.S.C. § 2244 are ‘equally valid’ in § 2255 cases.” (citation omitted))

Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this

stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1);

see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving

sua sponte denial of COA before movant filed a notice of appeal). And,

as there are no non-frivolous issues to raise on appeal, an appeal would

not be taken in good faith. Thus, im forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(8). SO ORDERED this A\& day of September, 2022. (ee U D STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA