United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
MAURICE HICKS. JR. UNITED STATES DISTRICT JUDGE
the Court is Petitioner Brodrick Collins'
(“Collins”) “Motion to File Out of
Time/Equitable Tolling & Memorandum in Support”
(Record Document 99). For the reasons contained in the
instant Memorandum Ruling, the Motion is
AND PROCEDURAL BACKGROUND
2004, police officers for the City of Shreveport arrested
Collins for participation in a drug distribution ring.
See United States v. Collins, 2011 U.S. Dist. LEXIS
128767 at *1. This Court summarized the facts surrounding
Collins' conviction in its Memorandum Ruling on
Collins' first 28 U.S.C. § 2255 Motion as follows:
Shreveport police officers “conducted a controlled
purchase of crack cocaine at a residence on Milam
Street.” See id. Subsequently, the officers
executed a search warrant at the same residence. See
id. The search resulted in the arrest of ten
individuals, including Collins. (Record Document 79-1 at 3).
According to testimony elicited at trial, the residence was
rented to Collins. See id. Also found during the
search were “[f]our firearms, two scales, four pounds
of marijuana, and 57 grams of crack cocaine.” See
Id. The scales were found on a coffee table and on the
couch in the living room of the residence. Collins had 56
grams of cocaine on his person at the time of his arrest.
See id. The search of the residence also produced a
9mm Smith & Wesson handgun, a .40 caliber loaded Glock
handgun, and a SKS assault weapon. See id.
On March 25, 2004, a federal grand jury returned a five-count
indictment against Collins. (Record Document 79-1 at 1).
Count One charged Collins with “possession with intent
to distribute” cocaine; Count Two charged him with
“possession of a firearm;” Count Three charged
him with “possession of a firearm by convicted
felon;” Count Four charged him with “possession
of stolen firearm;” and Count Five was a forfeiture
count. (Record Document 11).
On September 1, 2004, a jury found Collins guilty of Counts
One through Four. (Record Document 79-1 at 1). Collins was
sentenced on December 8, 2004 on all four counts. For Count
One, Collins was sentenced to life. Collins was sentenced to
120 months, per count, for Counts Three and Four. Both
sentences were set to run concurrently with each other and
Count One. On Count Four, Collins was sentenced to 60 months,
which was to run consecutively with Counts One through Three.
(Record Document 79-1 at 1-2).
On July 26, 2006, the Court allowed Collins to file an out of
time, direct appeal. See id. On appeal, Collins
argued that the life sentence was unconstitutional because it
was based on prior convictions that “were not pleaded
or proved to the jury.” United States of America v.
Collins, No. 06-30883 (5th Cir. June 20, 2007). In
affirming the sentence, the Fifth Circuit held that Collins
arguments were “foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998).” See
id. The Supreme Court denied certiorari. Collins v.
United States, No. 07-6570 (Oct. 15, 2007).
United States v. Collins, 2011 U.S. Dist. LEXIS
128767 at *1-4 (W.D. La. 2011).
same ruling, this Court addressed Collins' numerous
arguments in favor of overturning his conviction. See
id. at *4-17. The Court found that many of Collins'
arguments were not properly before the Court. See
id. at *17. However, it did consider the substance of a
number of Collins' claims, but rejected all such claims.
See id. at *4-17. Thus, the Court denied
Collins' first § 2255 Motion on November 4, 2011.
See id. at *17. Both this Court and the Fifth
Circuit denied a Certificate of Appealability on Collins'
first § 2255 Motion. See Record Documents 88
the Fifth Circuit's denial of Collins' Motion for a
Certificate of Appealability on June 13, 2012, and the filing
of the instant Motion on July 13, 2017, little activity
occurred in the instant action. The only documents filed into
the record during this time were: (1) this Court's August
1, 2012, Order stating that no change in Defendant's
sentence was warranted as a result of changes to sentencing
practices for crack cocaine offenses; (2) the accompanying
Statement of Reasons for this Order; and (3) Collins'
June 27, 2016, request for a copy of the Federal Rules of
Civil Procedure. See Record Documents 96, 97, and
98. In the instant “Motion to File Out of
Time/Equitable Tolling & Memorandum in Support”
(Record Document 99), Collins seeks leave to file a
subsequent § 2255 Motion on the ground that there is
newly discovered evidence that justifies overturning his
conviction. He seeks leave to file this § 2255 Motion
after the expiration of the one-year period for filing such a
Motion on the grounds of equitable tolling of the statute of
limitations. See Record Document 99.