United States District Court, W.D. Virginia, Roanoke Division
JAMES P. ROBERTSON, JR., Plaintiff,
JEFFERSON B. SESSIONS, ET AL., Defendants.
Jackson L. Kiser Senior United States District Judge
James P. Robertson, Jr., a federal inmate proceeding pro se,
has filed this civil rights action, pursuant to Bivens v.
Six Unknown Named Agts. of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). He alleges that prison officials interfered
with his ability to pursue a petition for a writ of
certiorari regarding the denial of his motion to vacate, set
aside or correct the sentence under 28 U.S.C. § 2255.
After review of the record, I conclude that his complaint
must be summarily dismissed, because he has failed to
accomplish service on the defendants and his allegations fail
to state a claim upon which relief can be granted.
2002, while under indictment for bank robbery in the United
States District Court for the Middle District of Florida,
Robertson entered into a plea agreement with the government.
United States v. Robertson. No. 8:08-cr-240, 2014 WL
12603511, at *1 (M.D. Fla. 2014) (unpublished). That
agreement was withdrawn after the government discredited
Robertson's testimony at sentencing that his co-defendant
had coerced him. Id. Sentencing was continued, and
Robertson obtained new counsel, who informed prosecutors that
Robertson wanted to cooperate with law enforcement.
Id. Robertson told agents that he had been present
with members of a skinhead group when two homeless men were
beaten to death in September of 1998. Id. at *2.
Prosecutors did not believe his information was complete or
truthful and opened an investigation that led to
Robertson's becoming a suspect in the murders.
of 2008, Robertson and a co-defendant were indicted on two
counts of murder for the purpose of maintaining and
increasing their positions in an enterprise engaged in
racketeering activity, in violation of the violent crimes in
aid of Racketeering ("VICAR") statute, 18 U.S.C.
§ 1959(a). Id. The co-defendant pleaded guilty
and testified against Robertson. A jury ultimately found
Robertson guilty on both counts, and the court sentenced him
to a term of life in prison. Id. The court of
appeals rejected his direct appeal on November 12, 2013.
United States v. Robertson. 736 F.3d 1317 (11th Cir.
filed his first § 2255 motion on August 11, 2014,
arguing that the VICAR statute is unconstitutional and that
his trial counsel provided ineffective assistance in various
ways. Robertson, 2014 WL 12603511 at *2. On November
25, 2014, the district court found both claims to be without
merit, denied relief under § 2255, and declined to issue
a certificate of appealability under 28 U.S.C. §
2253(c)(2). Id. at *6. Robertson filed a timely
notice of appeal, and on April 20, 2015, he filed an amended
notice of appeal and motion for certificate of appealability
from the court of appeals; the court denied his motion,
dismissed the appeal, and denied his motion for rehearing en
banc, in August 2015. See Robertson v. United
States, No. 14-15827 (11th Cir. 2015).
then had 90 days to file a petition for a writ of certiorari
in the United States Supreme Court. On August 15, 2015, he
was transferred from the United States Penitentiary in Lee
County, Virginia ("USP Lee"), to the United States
Penitentiary in Coleman, Florida ("USP Coleman").
He alleges that "his legal papers which under Federal
rules are kept in a separate envelope in his cell did not
accompany him. He alleges they were deliberately confiscated
to block a petition for certiorari to the U.S. Supreme Court.
Am. Compl. 5, [ECF No. 13]. Incoming mail from the courts was
allegedly "routinely delayed by a week or 10 days after
receipt in the prison mail room," and staff failed to
deliver such mail to Robertson in person or to keep a proper
log. Id. at 6.
to Robertson, he managed to file a timely certiorari
petition, but on November 12, 2015, the Supreme Court
rejected his filing as improperly formatted. The Court gave
Robertson 60 days "to make corrections such as
reprinting prior orders in required 'pamphlet'
format." Id. at 5. Making these corrections
"was complicated by the fact that the originals of some
of those document[s] were in the file waylaid by the BOP,
while others were Orders which the BOP never forwarded
to" Robertson. Id. On January 27, 2016, the
Court allegedly rejected Robertson's corrected petition
as untimely. The inmate's prison unit manager
"submitted a letter explaining that Robertson's
legal files never got from Virginia to Florida and asked the
Supreme Court to grant a motion permitting his application
for a writ to be served out of time, but the Supreme Court
denied such motion." Id. Robertson's
"window" to file a proper certiorari petition
closed on March 31, 2016. Id.
October of 2018, Robertson filed this Bivens action,
naming then-Attorney General Jeff Sessions and numerous John
Does as defendants. He paid the full filing costs and was,
thus, responsible for accomplishing service on the
defendants. In January 2019, a process server filed
affidavits [ECF Nos. 10 and 11], claiming to have delivered a
summons and a copy of the complaint to Michael Breckton, USP
Warden; and Charles Barnett, USP Lee mailroom staff
member-two individuals identified as defendants only in the
text of the complaint. The process server reported that he
had left one summons at Breckton's USP Lee office and had
left the other summons on Barnett's car in the USP
court then notified Robertson that his complaint included
unrelated, misjoined claims and directed him to file an
amended complaint to take the place of the original
complaint. Robertson filed an amended complaint in February
of 2019 that narrowed the scope of the case to a claim that
prison officials at USP Lee and USP Coleman deprived him of
his right to access the courts. Robertson also identified as
defendants that R.S. Cheatham, USP Coleman Warden; and John
Doe, "officer in charge of the mail room at USP
Coleman." Id. at 3. Because the amended
complaint failed to state any claim against Sessions or to
identify the many other John Doe defendants, I dismissed
these defendants from the lawsuit. The court notified
Robertson by order dated March 15, 2019, that if he failed to
accomplish service of his amended claims on the defendants
within 90 days, his claims against them would be dismissed
under Rule 4(m) of the Federal Rules of Civil Procedure.
4(m) sets a 90-day time limit for service of a federal civil
If a defendant is not served within 90 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court mu7st extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). The 90-day period for Robertson to
accomplish service of the amended complaint has expired. The
court gave him ample notice that failure to serve the
defendants would result in dismissal of his claims against
them in the amended complaint. Robertson has not returned to
court since that notice issued, nor has he offered any
evidence to the court that any of the defendants have been
served with the amended complaint. Robertson also has not shown
cause for failing to serve the defendants with that document
within 90 days after he filed it. Accordingly, I ...