Hayes v. Tifft et al
Filing
34
OPINION AND ORDER substituting the Secretary of the Florida Department of Corrections for Warden Tifft; dismissing the Florida Attorney General with prejudice; dismissing with prejudice 1 Petition for writ of habeas corpus as untimely. The Clerk shall enter judgment dismissing the case with prejudice and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 10/22/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
REGINALD HAYES,
Petitioner,
vs.
Case No.
2:10-cv-493-FtM-29SPC
WARDEN TIFFT and FLORIDA ATTORNEY
GENERAL,
Respondents.
_________________________________
OPINION AND ORDER
I. Status
Petitioner
Reginald
Hayes
(“Petitioner”
or
“Hayes”),
proceeding pro se, initiated this action by filing a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #1,
“Petition”) on August 05, 2010.1
Pursuant to the Court's Order to
respond and show cause why the Petition should not be granted,
1
The Petition (Doc. #1) was filed in this Court on August 12,
2010, 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. 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 oneyear 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).
Respondent
filed
a
response
on
December
06,
2010
(Doc.
#5,
“Response”), seeking dismissal of the Petition on the grounds that
the Petition is time barred pursuant to 28 U.S.C. § 2244(d)(1).2
2
On April 24, 1996, the President signed into law the
Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter
AEDPA). This law amended 28 U.S.C. § 2244 by adding the following
new subsection:
(d)(1) A 1-year period of limitation shall
application for a writ of habeas corpus by
custody pursuant to the judgment of a State
limitation period shall run from the latest
apply to an
a person in
court. The
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.
-2-
Response at 1.3
Petitioner filed a reply to the Response on
February 8, 2011 (Doc #14, Reply), claiming that he was entitled to
equitable tolling due to his physical and psychological illnesses.
After being directed by the Court (Doc. #22), Respondent filed a
Surreply on May 21, 2012, (Doc. #25, Surreply), with exhibits in
support thereof (Exhs. 16-18). In particular, Respondent submitted
Hayes’
medical
records
under
seal
(Exh.
16-1
through
16-5),
classification printouts of Hayes’ movements (Exh. 17), and copies
of grievances and/or requests submitted by Hayes while incarcerated
(Exh. 18-1 through 18-30).
Without obtaining leave of court,
Petitioner filed a Reply to the Surreply on August 6, 2012 (Doc.
Respondent also moves to substitute the Secretary of the
Florida Department of Corrections for Warden Tifft, and dismiss the
Florida Attorney General as named respondent to the Petition.
Response at 1. Rule 2(a) of the Rules Governing Section 2254 Cases
in the United District Courts provides that applicants in “present
custody” seeking habeas relief should name “the state officer
having custody of the applicant as respondent.” The Supreme Court
has made clear that there “is generally only one proper respondent
to a given prisoner’s habeas petition,” and this is “‘the person’
with the ability to produce the prisoner’s body before the habeas
court.” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). When a
petitioner is incarcerated and challenges his present physical
confinement “the default rule is that the proper respondent is the
warden of the facility where the prisoner is being held, not the
Attorney General or some other remote supervisory official.” Id.
at 435 (citations omitted). Alternatively, the chief officer in
charge of the state penal institution is also recognized also the
proper named respondent. Rule 2(a), Sanders v. Bennett, 148 F.2d
19 (D.C. Cir. 1945). In Florida, this is the Secretary of the
Florida Department of Corrections.
The Court will grant the
substitution of the Secretary for Warden Tifft and dismiss the
Florida Attorney General.
3
-3-
#32, “Reply to Surreply”), with attached exhibits.4
As more fully
set forth herein, the Court finds the Petition is untimely and
Petitioner
has
failed
to demonstrate
that
he
is
entitled
to
equitable tolling.
II.
Procedural History & AEDPA Time Bar
Hayes challenges his conviction for aggravated battery entered
by the Twentieth Circuit Court, Lee County, Florida for which he
was sentenced to 30 years imprisonment.
On
April
27,
2007,
the
conviction and sentence.
See generally Petition.
state district court
affirmed
Hayes’
Hayes v. State, 955 So. 2d 574 (Fla. App.
Dist. 2007). Consequently, Hayes’ state conviction became final on
July 26, 2007, upon expiration of the time for seeking certiorari
review.
See 28 U.S.C. § 2244(d)(1)(A) and Rule of the Supreme
Court of the United States, Rule 13.3 (ninety days after entry of
the
judgment
Petitioner’s
or
order
conviction
sought
was
to
final
be
after
reviewed).5
the
April
Because
24,
1996,
effective date of the AEDPA, Petitioner’s one-year time period for
filing a federal habeas challenging his conviction expired on July
In light of Petitioner’s pro se status, the Court will
consider Petitioner’s improperly filed pleading.
4
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[.]”
5
-4-
26, 2008.6
Accordingly, the Petition filed in this Court, on
August 5, 2010, is untimely, unless Petitioner availed himself of
one
of
the
statutory
provisions
which
extends
or
tolls
the
statutory 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
Here, 294 days of the federal
judgment or claim is pending.”
limitations period elapsed before Petitioner filed a pro se motion
pursuant to Florida Rule of Criminal Procedure 3.850 on May 16,
2008.
The Rule 3.850 motion was pending until issuance of the
mandate in the post-conviction appeal on August 4, 2009.
Upon
issuance of the mandate, Hayes had 71 days remaining of his federal
limitations period.
Hayes permitted another 365 days to elapse
before he filed the instant Petition.
Consequently, the Petition
was filed 294 days after the federal limitations period expired.
The parties do not dispute that the Petition was filed in excess of
this one-year limitation period.
Response at 5; Reply at 3. Thus,
unless Hayes can demonstrate that he is entitled to equitable
tolling, the Petition is time-barred.
6
Applying “anniversary date of the triggering event.”
v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).
-5-
Downs
III.
The
Equitable Tolling Law & Analysis
Supreme
Court
has
determined
that
AEDPA's
one-year
statutory limitations period set forth in Ҥ 2244(d) is subject to
equitable tolling in appropriate cases.”
S. Ct. 2549, 2560 (2010).
Holland v. Florida, 130
In order to avail himself of equitable
tolling, a petitioner must demonstrate both: (1) that 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). “The diligence required for equitable
tolling purposes is 'reasonable diligence,' not maximum feasible
diligence.”
Id.
at
2565.
Further,
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.”
F.3d. 1257, 1267 (11th Cir. 2011).
San Martin v. McNeil, 633
The burden of establishing
equitable tolling rests with the petitioner.
Drew v. Dep’t of
Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).
Hayes contends that his psychological and physical illnesses,
prevented him from timely filing his Petition.
Reply.
See generally
More specifically, Hayes claims that: (1) he suffers from
Sickle Cell Anemia, which necessitated numerous hospitalizations;
(2) he is bi-polar and he suffers from post-traumatic stress
syndrome; and, (3)
Id.
at
3.
he had limited access to his legal documents.
Hayes
argues
that
-6-
these
circumstances
are
so
“extraordinary” that the court must apply the equitable tolling
doctrine.
Id.
Petitioner
points
to
his
hospitalizations
for
blood
transfusions due to Sickle Cell Anemia “around the end of June 2006
until July 07, 2006” and again in November 2006, as evidence of
impediments that prevented his timely filing.
Id. at 1.
These
events, however, precede the date on when Petitioner’s trial-based
judgment became final (July 26, 2007). Consequently, because these
events occurred before the federal limitations period began to run,
equitable tolling does not apply.
Hayes also claims his hospitalization in July 2008, and his
placement in a Transitional Care Unit from July 29, 2008 through
December 09, 2008, contributed to the late filing.
Surreply at 3.
Reply to
Additionally, Petitioner points out that he was
transferred to Lake Butler during March and April 2009 for blood
transfusions.
Id.
However, Petitioner’s Rule 3.850 motion was
pending from May 16, 2008 to August 4, 2009.
Consequently, the
federal limitations was already tolled during these time periods
and Petitioner cannot acquire further tolling for any of this time.
Instead, the relevant time periods during which Petitioner
must demonstrate
an
impediment
in
order
to
avail
himself
equitable tolling are:
from July 27, 2007, when his conviction became final
triggering the AEDPA clock, through May 16, 2008, when he
filed his Rule 3.850 motion; and
-7-
of
from August 5, 2009, when mandate issued on his Rule
3.850 restarting the AEDPA clock, through October 14,
2009, when AEDPA time period expired.
During this relevant time period, Hayes generally claims he
was transferred to South Florida Reception “for [a] psychological
evaluation [in] August or around September 2007.”
Reply at 2.
some point, he returned to Martin Correctional Facility.
Id.
At
He
was hospitalized at Larkens Hospital for “Sickle Cell related
problems” in October 2007, and again, “to save his life” in March
2008.
Id.
Eventually, Petitioner was transferred to Florida
State Prison. Petitioner avers that during each of these movements
“his property was not in his possession.” Id.
Respondent submits that Hayes’ claims of psychological and/or
physical illnesses are suspect.
Respondent points to a February
14, 2011, medical report that summarizes Plaintiff’s “Mental Health
History” while in the Department of Corrections, which states:
Numerous mental health emergencies, generally to avoid
confinement or after conflicts with security that
resulted in DRs. Numerous IMR/SHOS7 admissions in 7/06;
11/06; 6/07; 9/07; 10/07; 7/08; One SHOS/IMR admission
resulting in CSU at UCI in 5/2009. He was then
According to Respondent, “Abbreviations ‘IMR’ and ‘SHOS’ are
interpreted as referring to an isolation management room and selfharm observation status. An IMR is a cell in an infirmary mental
health care unit, transitional care unit, crisis stabilization
unit, or a corrections mental health treatment facility that has
been certified as being suitable for housing those with acute
mental impairment or those who are at risk for self-injury. See 33
FL ADC 33-404.103(9)33-404.103 Mental Health Services
–
Definitions.” Surreply at 2, n.2.
7
-8-
transferred to TCU here at SARCI Annex.8
However,
shortly after his arrival he began requesting discharge
as he reported no mental illness, but rather conflicts
with security at UCI. Last CSU/TCU was 4/9/10-7/12/10.
Last IMR admission was at RMC 1/15/11.
Inmate has a
pattern of declaring psych. emergencies and making
suicidal threats or gestures which are manifested as “I
want out of this camp”; I want a transfer”. Inmate has a
myriad of past diagnoses that range from Adjustment D/O
[Disorder] Unspecified, Major Depressive D/O; Psychotic
D/O; Schizophrenia Paranoid type; hx of R/O [Rule-Out]
malingering, R/O Brief Reactive Psychosis, and R/O
Schizophrenia.
Exh. 16-1.
The clinician reached an “assessment” based upon an
analysis of the “subjective” and “objective data” that Petitioner
“has a long history and pattern of making suicidal threats or
gestures to effect an environmental change.”
Id.
The Department’s records reflect the following events relating
to Petitioner’s alleged physical or psychological illnesses during
the relevant time period:
September 24, 2007- October 01, 2007 (7 days), Petitioner
was at South Florida Reception for observation and
admission to a crisis stabilization unit;
October 31, 2007-November 01, 2007 (2 days), Petitioner
taken to outside hospital;
April 01, 2008 - (1 day), Petitioner treated at outside
hospital;
Respondent clarifies that “‘SARCI’ stands for Santa Rosa
Correctional Institution. Undersigned interprets ‘CSU/TCU’ as
referring to a crisis stabilization unit or transitional care unit.
See FL ADC 33-404.103(4) Mental Health Services – Definitions (‘Inpatient settings include infirmary mental health services,
transitional
care
units,
crisis
stabilization units,
and
corrections mental health treatment facilities’).” Surreply at 2,
n. 3.
8
-9-
April 04, 2008 - (1 day), Petitioner taken to isolation
room at Reception Medical Center.
Surreply at 3.
The remainder of Petitioner’s movements within the
Department of Corrections relate to Petitioner’s institutional
transfers
or
confinement.
placement
in
disciplinary
or
administrative
Id. at 3-4.
“A petitioner must allege more than the mere existence of
physical or mental ailments to justify equitable tolling.
A
petitioner has the burden to show that these health problems
rendered him unable to pursue his legal rights during the one year
time period.”
Holveck v. Moore, No, 6:02-cv-1562-Orl-19JGG, 2005
W.L. 3087862 * 4 (M.D. Fla. Nov. 16, 2005)(internal quotations and
citations omitted).
Physical or mental incapacity only tolls the
statute of limitations if it actually prevents the sufferer from
pursuing his legal rights during the limitations period. Lamont v.
Sec'y, Dep't of Corr., No. 5:11-cv-695-Oc-30TBS, 2012 WL 2527445 *2
(M.D. Fla. June 29, 2012).
A petitioner must establish a causal
connection between the mental or physical illness and the failure
to file a timely application, absent which, equitable tolling is
not justified.
See Lawrence v. Florida, 421 F.3d 1221, 1226-27
(11th Cir. 2005); Fox v. McNeil, 373 F. App'x 32, 34 (11th Cir.
2010).
Here, Hayes offers no evidence that he suffered from a mental
condition that rendered him incompetent.
-10-
Nor does Petitioner
produce any evidence that he was so debilitated by his physical
illness, Sickle Cell Anemia, that he was physically unable to file
a habeas corpus petition in a timely manner.
The Court takes
judicial notice of its own records that reveal that Petitioner was
actively litigating a civil rights action pursuant to 42 U.S.C. §
1983 at case number 2:06-cv-101-FtM-29DNF through December 26,
2007,
when
he
filed
a
pro
se
notice
of
appeal.
Moreover,
Petitioner was capable of pursuing numerous grievances to challenge
various disciplinary infractions from October 11, 2007 through
August 31, 2010.
See generally Exhs. 18-1 through 18-26.
Even
assuming arguendo that Hayes’ mental and physical conditions during
the
relevant
time
periods
precluded
him
from
pursuing
post
conviction relief, the record reflects that, at most, Hayes would
be entitled to no more than 11 days of equitable tolling, leaving
263 days of untolled time remaining.
Consequently, Petitioner has
not demonstrated that either the degree or duration of his alleged
physical
or
psychological
illnesses
constitute
extraordinary
circumstances.
Hayes also fails to provide any proof that he diligently
pursued his rights during the one-year limitations period.
Hayes
fails to explain how his placements in disciplinary confinement or
his transfers interfered with his ability to file a petition.
Hayes has not shown that he made any attempts to retrieve his legal
documents or that he was denied access to his legal documents.
-11-
At
most, Petitioner makes a passing reference that his property was
not in his possession during his transfers and movements. The only
requests for property made by Hayes are dated August 29, 2010 and
September 26, 2010, neither date within the relevant time period.
See Exhs. 18-28, 18-29, and 18-30.
Furthermore, these requests
were made for “hygiene products, pictures, etc . . .” without any
mention
that
Petitioner
required
his
legal
documents.
Id.
Similarly, although Petitioner filed a grievance claiming he was
being denied access to court on August 26, 2010, the grievance
concerned Petitioner’s request to process his financial documents
for his federal habeas action.
Notably, at the time Petitioner
filed this grievance, his Petition and Affidavit of Indigency had
already been filed (Doc. ##1-2).
Indeed, the Court had not yet
ruled on his request to proceed in forma pauperis at the time he
paid the $5.00 filing fee.
See docket entry dated September 20,
2012. Nonetheless, institutional transfers, periods of confinement
under more restrictive conditions than general population, and lack
of ready access to legal paperwork and law libraries are not
“constitutional impediments” unless Petitioner can show that these
restrictions
were
not
“‘reasonably
related
to
legitimate
penological interests.’” Akins v. U.S., 204 F.3d 1086, 1090 (11th
Cir. 2000)(quoting Lewis v. Casey, 518 U.S. 343, 361 (1996)); see
also Dodd v. U.S., 365 F.3d 1273, 1282-83 (11th Cir. 2004)(stating
“lockdowns and periods in which a prisoner is separated from his
-12-
legal
papers
are
not
‘extraordinary
circumstances’
in
which
equitable tolling is appropriate.”).
Based upon the foregoing, the Court finds the Petition is
time-barred and finds Petitioner has failed to establish either
‘extraordinary circumstances’ or diligence.
Consequently, because
the Court finds Petitioner is not entitled to equitable tolling,
the Court will dismiss this case with prejudice pursuant to 28
U.S.C. § 2244(d).
Therefore, it is now
ORDERED and ADJUDGED:
1.
The Secretary of the Florida Department of Corrections is
substituted for Warden Tifft, and the Florida Attorney General is
dismissed as a named respondent to the Petition.
2.
The Petition (Doc. #1) is DISMISSED with prejudice as
untimely.
3.
this
case
The Clerk of the Court shall enter judgment dismissing
with
prejudice,
terminate
any
pending
motions
and
deadlines, 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 to appeal a
district court's final order denying his petition writ of habeas
has no absolute entitlement to appeal but must obtain a certificate
of appealability (“COA”).
28 U.S.C. § 2253(c)(1); Harbison v.
-13-
Bell, 556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 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)
or,
that
“the
issues
presented
were
adequate
to
deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003).
Petitioner has not made the requisite showing
in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Fort Myers, Florida, on this
of October, 2012.
SA: hmk
Copies: All Parties of Record
-14-
22nd
day
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