Elders v. Secretary, DOC et al
Filing
19
OPINION AND ORDER. The Motion to Dismiss as Time-Barred incorporated in the Respondent's Response is GRANTED. The Petition is DISMISSED, with prejudice, as time-barred. The Clerk is directed to terminate any pending motions, enter judgment accordingly, and CLOSE this case. IT IS FURTHER ORDERED that Petitioner IS NOT entitled to a certificate of appealability and IS NOT entitled to proceed in forma pauperis on appeal. Signed by Judge Charlene E. Honeywell on 7/27/2011. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES ELDERS,
Petitioner,
vs.
Case No.
SECRETARY,
GENERAL,
DOC;
FLORIDA
2:09-cv-66-FtM-36DNF
ATTORNEY
Respondents.
_________________________________
ORDER OF DISMISSAL WITH PREJUDICE
Petitioner James Elders initiated this action by filing a
Petition
for
Writ
of
Habeas
Corpus
(Doc.
#1,
Petition)
and
Memorandum of Law (Doc. #6, Memorandum) pursuant to 28 U.S.C. §
2254 on February 2, 2009.1
Respondent filed a Response (Doc. #13,
Response) to the Petition and supporting exhibits (Doc. #14, Exhs.
1-18) consisting of relevant post-conviction records.
Petitioner
filed a Reply (Doc. #18, Reply).
The Petition challenges Petitioner’s judgment of conviction
entered in the Twentieth Judicial Circuit, Hendry County, Florida
The Petition was filed in this Court on February 4, 2009, but
the Court deems a petition “filed” by an inmate when it is
delivered to prison authorities for mailing. Washington v. United
States, 243 F.3d 1299, 1301 (11th Cir. 2001). Absent evidence to
the contrary, the date of filing is assumed to be the date the
inmate signed the document.
Id. Because no prison date stamp
appears on the Petition, the Court assumes Petitioner gave the
Petition to prison officials for mailing on the date he signed the
Petition.
1
in case number 94-223CF on September 28, 1995.2
Petitioner raises
the following four grounds for relief:
Ground One- trial court erred by denying relief on
Elders’ absence from sidebar during voir dire and denying
a peremptory challenge;
Ground Two- trial court erred in denying relief on
Elders’ right to testify on his own behalf, which was
denied by counsel and wrongly explained by the trial
judge;
Ground Three- trial court erred in denying relief when
Elders proved several H.R.S reports, valuable to the
defense, were withheld by the State, and;
Ground Four- trial court erred in denying relief on
Elders’ claim of ineffective assistance of counsel
stemming from counsel’s failure to explain the
implication of him waiving his right to a speedy trial.
See generally Petition.
This Court has carefully reviewed the record and, for the
reasons set forth below,
required in this Court.
concludes no evidentiary proceedings are
Schriro v. Landrigan, 550 U.S. 465, 127 S.
Ct. 1933, 1939-40 (2007). Petitioner does not proffer any evidence
that would require an evidentiary hearing, Chandler v. McDonough,
471 F.3d 1360 (11th Cir. 2006), and the Court finds that the
pertinent facts of the case are fully developed in the record
Respondent notes that Petitioner was also convicted in a
separate case, case number 94-220CF, in July 1995. Response at 2,
fn. 1. In the July 1995 case, Petitioner was tried by a jury and
found guilty of one count of capital sexual battery and three
counts of lewd fondling. Each count involved a different child
than the child victim in the case at issue sub judice.
On
September 18, 1995, Petitioner was sentenced in case number 94220CF.
Petitioner is not challenging his convictions in case
number 94-220CF in the instant action.
2
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before the Court.
Schriro, 127 S. Ct. at 1940; Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034
(2004).
As discussed hereafter, the Court finds the Petition is
untimely and must be dismissed.
I.
Procedural History
A.
Charges and Trial
On June 30, 1994, Petitioner was charged by Information with
two counts of lewd fondling and one count of lewd act in the
presence of a child.
Response at 2; Exh. 1 at 1-2.
Petitioner
proceeded to a jury trial, represented by retained counsel, and was
found guilty as charged.
Exh. 2.
On September 28, 1995, the court
sentenced Petitioner to a concurrent fifteen-years imprisonment for
the
lewd
fondling
convictions
in
counts
one
and
two,
and
a
consecutive sentence of ten-years imprisonment for the lewd act
conviction in count three.
B.
Exh. 3.
Direct Appeal
On November 26, 1995, Petitioner, through counsel, filed an
initial brief.
Exh. 4.
The State filed an answer brief and
Petitioner filed a reply brief.
Exhs. 5-6.
On April 25, 1997, the
appellate court entered an order per curiam affirming Petitioner’s
judgment and conviction.
Exh. 7; Elders v. State, 697 So. 2d 147
(Fla. 2d DCA 2007)[table].
Petitioner moved for rehearing, which
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the appellate court denied on June 3, 1997.
issued on August 17, 1997.
Exhs. 8-9.
Mandate
Exh. 10.
Petitioner sought discretionary review in the Florida Supreme
Court (case number 90, 843). On June 27, 1997, the Florida Supreme
Court dismissed the petition for review. Exh. 11; Elders v. State,
697 So. 2d 510 (Fla. 1997)[table].
C. Post-conviction motion pursuant to Fla. R. Crim. P. 3.850
On July 16, 1999,3 Petitioner filed his initial pro se motion
for post-conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850.
Exh. 12.
Petitioner, through counsel, filed an
amended Rule 3.850 motion on October 7, 1999.
Exh. 13.
After
holding an evidentiary hearing on some of the claims, the postconviction court issued a final order on January 22, 2007, denying
The Court notes that Petitioner’s initial Rule 3.850 motion
is not contained in the record. Counsel for respondent submits
that she was unable to obtain a copy of the motion by the time the
instant Response was due. Respondent further submits, however,
that the post-conviction court noted, in its July 1, 2003 order,
that Petitioner provided evidence demonstrating that he had placed
his initial Rule 3.850 motion in the hands of prison authorities
for mailing on July 16, 1999.
Exh. 12 at p. 2, fn. 1. If
applicable, the Court also gives a petitioner the benefit of the
state’s mailbox rule with respect to his state court filings when
calculating the one-year limitations period under 28 U.S.C. §
2244(d). Under Florida’s inmate “mailbox rule,” Florida courts
“will presume that a legal document submitted by an inmate is
timely filed if it contains a certificate of service showing that
the pleading was placed in the hands of prison or jail officials
for mailing on a particular date, if . . . the pleading would be
timely filed if it had been received and file-stamped by the Court
on that particular date.” Thompson v. State, 761 So. 2d 324, 326
(Fla. 2000).
Therefore, this is the date the Court uses when
calculating the statute of limitations under AEDPA.
3
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the remaining claims as to case numbers 94-223CF and 94-220CF.
Exh. 14.
Petitioner appealed the post-conviction court’s order denying
him relief.
On February 15, 2008, after briefs had been filed by
Petitioner’s appointed counsel and the State, the appellate court
per
curiam
affirmed
the
post-conviction
Petitioner’s Rule 3.850 motion.
court’s
denial
of
Exh. 15; Elders v. State, 987 So.
2d 1217 (Fla. 2d DCA 2008)[table].
Petitioner, through counsel,
filed a motion for rehearing, which the appellate court denied on
April 4, 2008.
Exhs. 16, 17.
Mandate issued on April 21, 2008.
Exh. 18.
II. Petitioner’s Habeas Corpus Petition is Untimely
Petitioner signed his § 2254 Petition on February 2, 2009.
Petitioner filed his Petition after April 24, 1996, the effective
date of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Consequently,
post-AEDPA law governs this action.
Penry v. Johnson, 532 U.S.
782, 792 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th
Cir. 2007). Neither party disputes the applicability of the AEDPA.
On April 24, 1996, the President signed into law AEDPA.
law
amended
28
U.S.C.
§
2244
by
adding
the
following
subsection:
(d)(1) A 1-year period of limitation shall
apply to an application for a writ of habeas
corpus by a person in custody pursuant to the
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This
new
judgment of a State court.
The limitation
period shall run from the latest of –
(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment
to filing an application created by
State action in violation of the
Constitution or laws of the United
States is removed, if the applicant
was prevented from filing by such
State action;
(C)
the
date
on
which
the
constitutional right asserted was
initially recognized by the Supreme
Court, if the right has been newly
recognized by the Supreme Court and
made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual
predicate of the claim or claims
presented could have been discovered
through
the
exercise
of
due
diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
Respondent seeks dismissal of the Petition as time-barred due
to the Petitioner’s failure to comply with the one-year period of
limitations as set forth in § 2244(d).
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See Response at 5-10.
Here, Petitioner’s state conviction became final on September
1, 1997, which is ninety-days after the June 3, 1997 order denying
Petitioner’s motion for rehearing on direct appeal and is when the
period to file a petition for writ of certiorari expired.
See 28
U.S.C. § 2244(d)(1)(A); Rule 13.3 of the United States Supreme
Court;4 see generally McMillan v. Sec’y Dept. of Corr., 257 F.
App’x 249, 250 (11th Cir. 2007)(citing Bond v. Moore, 309 F.3d 770,
773-74
(11th
Cir.
2002)(finding
conviction
became
final
upon
issuance of order affirming the conviction and sentence on direct
appeal);
Nyland
2000)(explaining
v.
that
Moore,
in
216
Florida,
F.3d
an
1264,
1267
appellate
(11th
court’s
Cir.
order
denying rehearing on its affirmance of the state trial court’s
denial of a motion for post-conviction relief is pending until the
mandate issues).
Consequently, Petitioner’s one-year time period
for filing a federal habeas petition challenging his conviction
expired on September 1, 1998.5
Consequently, the Petition, deemed
filed in this Court on February 2, 2009, would be untimely, unless
A conviction is deemed final upon “the conclusion of direct
review or the expiration of the time for seeking such review.” 20
U.S.C. § 2244(d)(1)(A).
For purposes of direct review, United
States Supreme Court Rule 13.3 states, in pertinent part, that
“[t]he time to file a petition for a writ of certiorari runs from
the date of entry of the judgment or order sought to be reviewed,
and not from the issuance date of the mandate[.]”
4
Applying “anniversary date of the triggering event.”
v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).
5
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Downs
Petitioner availed himself of one of the statutory provisions that
extends or tolls the federal time period.
Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled
during the time that “a properly filed application for state postconviction or other collateral review with respect to the pertinent
judgment or claim is pending.”
Here, assuming arguendo that
Petitioner’s petition for discretionary review filed in the Florida
Supreme Court tolled the federal time period, almost two years
elapsed between the date the Florida Supreme Court dismissed the
petition and the date Petitioner filed his first state postconviction motion- a motion pursuant to Florida Rule of Criminal
Procedure 3.850, mailed on July 16, 1999.
Exh. 12.
Petitioner disputes that his Petition is untimely and asserts
that he was required to exhaust his remedies before the Florida
courts before filing the instant Petition.
Petition at 13.
Petitioner sets forth what he perceives is Florida’s exhaustion
procedure for post-conviction claims.
provides
that
federal
habeas
Id.
However, precedent
petitioners
who
rely
upon
the
timeliness of state post-conviction proceedings to satisfy the
requirements of AEDPA do so at their peril.
Johnson v. Fla. Dep’t
of Corr., 513 F.3d 1328, 1333 (11th Cir. 2008)(citing Howell v.
Crosby, 415 F.3d 1250, 1251-52 (11th Cir. 2005); see also Tinker v.
Moore,
255
F.3d
1331,
1334-35
(11th
Cir.
2001)(holding
that
Florida's then-applicable two-year limitations period for state
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habeas petitions did not toll the federal one-year period; rather,
a federal petitioner “must exercise his [state remedy] within one
year ... and do so in a manner that leaves him sufficient time to
timely file his federal petition”).
Petitioner also avers that the one-year period under AEDPA did
not begin to run until all post-conviction remedies were exhausted.
Petition at 13; Reply at 2.
As previously stated, under §
2244(d)(2), the limitations period is tolled during the time that
a “properly” filed application for state post-conviction or other
collateral
review
is
pending
with
respect
to
the
particular
conviction.
Petitioner, therefore, mistakenly believes that the
time
which
during
he
had
no
post-conviction
regarding his conviction at issue was tolled.
motions
pending
Reply at 2.
Significantly, Petitioner does not explain why almost two years
elapsed between the date the Florida Supreme Court denied his
petition for discretionary review and the date he filed his Rule
3.850 motion concerning his conviction and sentence at issue sub
judice. Because Petitioner’s Rule 3.850 motion was filed after the
expiration of the one-year federal time period, neither that
motion,
nor
any
subsequent
collateral
applications,
even
if
properly filed, tolled the federal limitations period. Sibley v.
Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004)(stating “[a] state
court filing after the federal habeas filing deadline does not
revive it”); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.
-9-
2000), cert. denied, 531 U.S. 991 (2000)(stating “[a] state court
petition . . . that is filed following the expiration of the
limitations period cannot toll that period because there is no
period remaining to be tolled”).
untimely
and
subject
to
Thus, the instant Petition is
dismissal
under
§
2254(d),
unless
Petitioner can establish grounds to support equitable tolling.
The
United
States
Supreme
Court
recognizes
that
AEDPA's
statutory limitations period set forth in Ҥ 2244(d) is subject to
equitable tolling in appropriate cases.”
U.S. ___, 130 S. Ct. 2549, 2560 (2010).
Holland v. Florida, ___
However, a petitioner is
entitled to equitable tolling only if he can demonstrate that: (1)
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way. Id. at 2562 (internal
quotations and citations omitted).
As to the first prong, “[t]he
diligence required for equitable tolling purposes is 'reasonable
diligence,' not maximum feasible diligence.” Id. at 2565. Second,
to demonstrate the “extraordinary circumstance” prong, a petitioner
“must show a causal connection between the alleged extraordinary
circumstances and the late filing of the petition.”
McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).
San Martin v.
“The burden of
proving circumstances that justify the application of the equitable
tolling doctrine rests squarely on the petitioner.”
Id. at 1268
(citations omitted). Here, Petitioner fails to demonstrate that he
is entitled to equitable tolling.
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ACCORDINGLY, it is hereby
ORDERED:
1.
The Motion to Dismiss as Time-Barred incorporated in the
Respondent’s Response is GRANTED.
The Petition is DISMISSED, with
prejudice, as time-barred.
2.
The Clerk of Court shall terminate any pending motions,
enter judgment accordingly, and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a
district court must first issue a certificate of appealability .
Id.
“A
certificate
of
appealability
may
issue
only
if
the
applicant has made a substantial showing of the denial of a
constitutional right.”
Id. at § 2253(c)(2).
To make such a
showing, petitioner “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the
issues presented were ‘adequate to deserve encouragement to proceed
further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
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(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). The
issues
raised
by
Petitioner
do
not
satisfy
these
standards.
Further, because Petitioner is not entitled to a certificate of
appealability, he is not entitled to proceed in forma pauperis on
appeal.
DONE AND ORDERED in Fort Myers, Florida, on this 27th day of
July, 2011.
SA: alj
Copies: All Parties of Record
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