Richard Button v. Secretary, Florida Department, et al

Filing

Opinion issued by court as to Appellant Richard S. Button. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-15943

Date Filed: 11/14/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15943
Non-Argument Calendar
________________________
D.C. Docket No. 9:14-cv-81300-DMM
RICHARD S. BUTTON,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 14, 2017)
Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.
PER CURIAM:
Richard Button, a Florida prisoner serving a life sentence for first-degree
murder and robbery with a deadly weapon, appeals from the district court’s
dismissal of his 28 U.S.C. § 2254 petition as untimely. We granted a certificate of

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appealability (“COA”) on the following issue: “Whether Button’s May 25, 2013,
motion for post-conviction relief under Fla. R. Crim. P. 3.850 was properly filed
such that it tolled the time to file his 28 U.S.C. § 2254 petition for a writ of habeas
corpus, rendering the petition timely?” The Rule 3.850 motion, filed in May 2013
(“May 2013 motion”), was filed about 11 years after judgment became final in
June 2002. It was based on new evidence in the form of recanted testimony, but
Button did not explain how or when he discovered the new evidence, and did not
include an affidavit from the recanting witness. 1 He filed an amended petition in
2014, but again did not explain how or when he discovered the new evidence, and
did not include an affidavit. In this appeal, Button: (1) argues that the May 2013
motion tolled the time because it was properly filed; and (2) requests appointment
of counsel on appeal. After careful review, we affirm and deny his request.
When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
An application is “properly filed” when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings. Artuz v. Bennett,
531 U.S. 4, 8 (2000). Laws and rules governing filings include those prescribing

1

Although Button argues on appeal that his May 2013 petition asserted that he learned of the
new evidence in 2012, it is clear from the documents filed by both parties in the district court
that the petition did not include any information like this when it was filed in state court.
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the forms to be used, time limits, the court and office for filing, filing fees, and
other preconditions imposed on filers. Id. A post-conviction petition that is
dismissed as untimely under state law is not “properly filed,” and thus, does not
toll the statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005);
Webster v. Moore, 199 F.3d 1256, 1258-59 (11th Cir. 2000).
When a state court has not addressed the timeliness of a petition, we must
examine the delay in each case and determine what the state courts would have
held in respect to timeliness. Evans v. Chavis, 546 U.S. 189, 197-98 (2006).
Under Florida law, Rule 3.850(b)(1) provides that no motion shall be considered
pursuant to the rule if filed more than two years after the judgment and sentence
became final, unless the motion alleges that the facts on which the claim is
predicated were unknown to the movant or the movant’s attorney and could not
have been ascertained by the exercise of due diligence, and that the claim is made
within two years of the time the new facts were or could have been discovered.
Fla. R. Crim. P. 3.850(b)(1). If the defendant files a newly discovered evidence
claim based on recanted trial testimony, he shall include an affidavit from that
person as an attachment to the motion or an explanation why the required affidavit
could not be obtained. Fla. R. Crim. P. 3.850(c).
As a threshold requirement, a movant must allege that the Rule 3.850 motion
has been filed within two years from the date that the evidence was discovered, and
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that the evidence could not have been discovered earlier with the exercise of due
diligence. Bolender v. State, 658 So. 2d 82, 85 (Fla. 1995). Where these threshold
requirements are not alleged or demonstrated, a motion filed after the two-year
period may be dismissed as untimely. See Swafford v. State, 828 So. 2d 966, 976978 (Fla. 2002).
In this case, the district court did not err in determining that Button’s § 2254
petition was untimely filed since his May 2013 motion did not toll his time in
which to file his § 2254 petition. See Nyland, 216 F.3d at 1266; 28 U.S.C. §
2244(d)(1)(A), (2). Although the state court did not expressly dismiss the motion
due to timeliness, we may examine the timeliness of the May 2013 motion, and we
determine that the motion was untimely. See Evans, 546 U.S. at 197-98. As the
record reveals, the May 2013 motion was filed more than two years after the
judgment and sentence became final. See Fla. R. Crim. P. 3.850(b)(1). Under
Florida law, Button did not meet the threshold requirement to show that the motion
met the exception to timeliness -- that is, he did not show that the motion was filed
within two years of the discovery of the new evidence, and that the evidence could
not have been discovered sooner through the exercise of due diligence.

See

Bolender, 658 So. 2d at 85. Furthermore, the May 2013 motion and the amended
motion did not include affidavits, as required by Fla. R. Crim. P. 3.850(c).

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Because the May 2013 motion did not comply with the applicable rules, it
was untimely and not properly filed. See Artuz, 531 U.S.at 8; Swafford, 828 So.
2d at 976 978; Pace, 544 U.S. at 417; Webster, 199 F.3d at 1258-59; Fla. R. Crim.
P. 3.850. A motion that is not properly filed does not toll the statute of limitations.
See Pace, 544 U.S. at 417; Webster, 199 F.3d at 1258-59. Accordingly, the May
2013 motion did not toll the time in which to file Button’s § 2254 petition, and the
petition was untimely. Because the petition was untimely, we affirm, and deny
Button’s request for appointment of counsel.
AFFIRMED.

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