Ortiz v. Secretary, DOC et al
Filing
16
OPINION AND ORDER dismissing case with prejudice. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 4/11/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MATTHEW A. ORTIZ,
Petitioner,
vs.
Case No.
SECRETARY,
GENERAL,
DOC;
FLORIDA
2:11-cv-354-FtM-29DNF
ATTORNEY
Respondents.
_________________________________
OPINION AND ORDER
Petitioner Matthew Ortiz (“Petitioner” or “Ortiz”), initiated
this action by filing a pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. #1, “Petition”) on June 16, 2011.1
Pursuant to the Court's Order to respond and show cause why the
Petition should not be granted (Doc. #9), Respondent filed a Limited
Response (Doc. #11, Response) on February 27, 2012, incorporating a
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 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).
1
motion to dismiss the Petition on the grounds that the Petition is
time barred pursuant to 28 U.S.C. § 2244(d).2
Respondent submits
exhibits (Exhs. 1-15) in support of the Response.
See Appendix of
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:
2
(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-
Exhibits (Doc. #13).
#14, Reply).
Petitioner filed a reply to the Response (Doc.
This matter is ripe for review.
Ortiz challenges his 1995 judgment of conviction for first degree
murder (Count I), aggravated assault (Count II), and aggravated
assault on a law enforcement officer (Count III) entered by the
Twentieth Circuit Court, Lee County, Florida (case number 94-1374-CF).
Ortiz was sentenced to life on Count I and consecutive sentences of 5
years on Count II and 15 years on Count III.
Response at 2;
Exh. 1.
Ortiz’s sentences and conviction were per curiam affirmed on direct
appeal on May 23, 1997.
Exh. 5.
Consequently, Ortiz’s state
conviction became final on Thursday, August 21, 1997.
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 or order sought to
be reviewed).3
the AEDPA.
This was after the April 24, 1996, effective date of
Thus, Petitioner’s one-year time period for filing a
federal habeas challenging his conviction expired on Friday, August
21, 1998.4
Consequently, the Petition filed in this Court on June 16,
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, 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[.]”
3
Applying “anniversary date of the triggering event.”
v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).
4
-3-
Downs
2011, would be untimely, unless Petitioner availed himself of one of
the statutory provisions which extends or tolls the 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,
660 days of the federal
limitations period elapsed before Petitioner filed his first state
post-conviction motion - - a motion pursuant to Florida Rule of
Criminal Procedure 3.850 filed on June 14, 1999.
court docket sheet); see also
Exh. 6.
See Exh. 1 (state
However, by that time,
Petitioner's AEDPA period had lapsed, and the Rule 3.850 motion could
not operate to toll the statute of limitation.
See Tinker v. Moore,
255 F.3d 1331, 1333 (11th Cir. 2001) (a state court petition that is
filed following the expiration of the federal limitations cannot toll
the limitations period because there is no remaining period to be
tolled).
Consequently, the subsequent motions for postconviction
relief filed by Petitioner, whether timely filed under Florida law or
whether
properly
filed,
are
inconsequential
for
purposes
determining the timeliness of the Petition sub judice.
of
“Once the
AEDPA’s limitations period expires, it cannot be reinitiated.”
Davis
v. McDonough, No. 8:03-CV-1807-T-27TBM, 2006 WL 2801986, *4 (M.D. Fla.
Sept. 27, 2006)(citing Tinker v. Moore, 255 F.3d 1331, 1333-34 (11th
Cir. 2001), cert. denied, 534 U.S. 1144 (2002)).
Petition is due to be dismissed as untimely.
-4-
Thus, the instant
Petitioner argues that the Petition is not untimely because his
one year to file the instant Petition should be calculated from the
date he discovered “new evidence.”
refers
the
Court
to
certain
See Petition at 21.
arguments
raised
in
Petitioner
the
Petition
(concerning: (1) the jury was partial because the venue was not
changed to outside of Lee County; (2) ineffective assistance during
the plea bargaining process; and, (3) the prosecutor suppressed
evidence), contending that these claims were based on newly discovered
evidence.
Under § 2244(d)(1)(D), the one-year limitations period may run
from the date on which, as a result of exercising due diligence, the
petitioner could have discovered the factual predicate of the claim or
claims presented.
are unavailing.
28 U.S.C. § 2244(d)(1)(D).
Petitioner’s arguments
The Eleventh Circuit Court of Appeals has found that
the key inquiry in determining timeliness under § 2244(d)(1)(D), is
whether the petitioner exercised due diligence in discovering the
evidence.
Aron v. United States, 291 F.3d 708, 711 (11th Cir. 2002)
(stating– in the context of a nearly identical provision in 28 U.S.C.
§ 2255(f)(4)– that “the court should begin the timeliness inquiry . .
.
by determining whether te petitioner exercised due diligence.”);
see also Ross v. Sec’y, Fla. Dep’t of Corr., 517 F. App’x 731, 733
(11th Cir. 2013)(unpublished) (applying Aron in a § 2254 case).
Petitioner is “presumed to have conducted a reasonable investigation
of all facts surrounding [his] prosecution.” In re Boshears, 110 F.3d
-5-
1538, 1540 (11th Cir. 1997) (citing McCleskey v. Zant, 499 U.S. 467,
498
(1991)).
Due
diligence
in
this
context
diligence, not maximum feasible diligence.
means
reasonable
Aron, 291 F.3d at 712.
None of the arguments Petitioner raises actually involve new evidence
to trigger a later start date for the one-year limitations period
because the factual predicate for the claims were available prior
trial, and/or the postconviction court reasonably determined that the
claims were refuted by the record.
Petitioner claims the jury was not impartial and that the venue
should have been changed to outside of Lee County due to pre-trial
publicity.
Petition at 5-6.
Petitioner claims that it was not until
a postconviction evidentiary hearing held on July 23, 2007, that he
discovered
the
factual
predicate
underlying
this
claim.
Id.
Petitioner submits that the assistant state attorney’s testimony
during Petitioner’s July 23, 2007 evidentiary hearing contradicted his
testimony at Petitioner’s pretrial hearing on his motion to change
venue.5
Id.
Related to this argument are Petitioner’s contentions
The assistant state attorney’s statements at issue are as
follows.
Petitioner claimed that at the pretrial hearing, the
assistant state attorney argued against the change of venue on the
basis that there was no more publicity than usual and that a fair
jury could be assembled. However, during the 2007 evidentiary
hearing, the assistant state attorney testified that the case was
high profile. See Exh. 13. The assistant state attorney further
testified that many community members wrote the state attorney’s
office letters urging zealous prosecution. Id. The postconviction
court rejected the idea that these statements were contradictory
because one had to do with pre-trial publicity and the other had to
do with letters from members of the community.
5
-6-
that the prosecution “suppressed favorable evidence” when they did not
share letters from the community urging “zealous prosecution” to the
defense, apparently for use in the pretrial motion to change venue
hearing.
See Petition at 11, 22.
Petitioner raised these arguments before the postconviction court
in a Rule 3.850 motion.
See Exh. 12.
The postconviction court denied
Petitioner relief, finding the evidence did not constitute newly
discovered evidence because the allegations were not evidentiary in
nature.
Id.
The
postconviction
court
further
noted
that
assistant state attorney’s testimony was not contradictory.
Court agrees that this claim is not based on new evidence.
the
This
Before
trial, Petitioner, through his counsel, moved for a change of venue on
the basis that it would be difficult to find an impartial jury due to
pre-trial publicity.
Thus, Petitioner was aware of the factual
predicate for this claim prior to trial as evidenced by the fact that
he moved for a change of venue. See Rozzelle v. Sec’y, Fla. Dep’t of
Corr., 672 F.3d 1000, 1016-1019 (11th Cir. 2012) (concluding that
evidence known to petitioner at time of trial was not “new”).
Petitioner
next
argues
that
his
defense
counsel rendered
ineffective assistance during the plea bargaining process by not
conveying a plea offer of twenty-years imprisonment in exchange for a
guilty plea to second-degree murder.
Petition at 9, 22.
Petitioner
asserts that he did not learn about this possible twenty-year plea
offer until May of 2005 during a telephone conversation with his aunt.
-7-
Id.
Petitioner explains that his aunt was “very concerned” about his
trial and had numerous conversations with defense counsel, during
which his attorney conveyed a plea offer of twenty-years to his aunt,
but never to him.
Id. at 9.
Petitioner raised this claim of newly discovered evidence in his
a Rule 3.850 motion.
Exh. 12.
The postconviction court denied
Petitioner relief on this claim after conducting an evidentiary
hearing.
During the hearing, the assistant state attorney testified
that he was “absolutely certain” that the State did not make a plea
offer in this case because the case was high profile, there was strong
evidence and available witnesses, and the public outcry was for
zealous prosecution.
Exh. 10, Vol. I.
Thus, Petitioner’s claim does
not entitle him to the limitations set forth in 2244(d)(1)(D) because
there is no legitimate claim of “newly discovered evidence.”
Petitioner also argues “manifest injustice,” pointing to the five
grounds for relief he raises in the Petition.
Petition at 21.
And,
further argues that dismissing the Petition as untimely would amount
to a violation of the Suspension Clause.
Id. at 22.
The Supreme
Court recognizes that AEDPA's statutory limitations period set forth
in “§ 2244(d) is subject to equitable tolling in appropriate cases.”
Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2560 (2010).
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.
-8-
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.”
1257, 1267 (11th Cir. 2011).
San Martin v. McNeil, 633 F.3d
The petitioner bears the burden of
establishing that equitable tolling applies.
297 F.3d 1278, 1286 (11th Cir. 2002).
a showing.
Drew v. Dep’t of Corr.,
Petitioner does not make such
In fact, in his Reply, Petitioner concedes that “he has
made absolutely no claim whatsoever to ‘equitable tolling.’”
See
Reply at 2, n.1.
Finally, to the extent Petitioner argues enforcing the AEDPA
limitations period amounts to a violation of the Suspension Clause,
such an argument has already been rejected by the Eleventh Circuit
Court of Appeal.
See Wyzkoowski v. Dep’t of Corr., 226 F.3d 1213,
1217-18 (11th Cir. 2000) (concluding that, as a general matter, §
2244(d)(1)’s
one-year
statute
of
l
imitations
does
not
per
se
constitute a suspension of the writ of habeas corpus).
Based upon the foregoing, the Court finds the Petition is time
barred and finds Petitioner has not demonstrated a justifiable reason
why the dictates of the one-year limitations period should not be
imposed upon him.
Therefore, the Court will dismiss this case with
prejudice pursuant to 28 U.S.C. § 2244(d).
-9-
ACCORDINGLY, it is hereby
ORDERED:
1.
The case is DISMISSED with prejudice.
2.
The Clerk shall enter judgment dismissing this case 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").
U.S. 180, 183 (2009).
28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556
“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)(citations omitted).
Petitioner has not made the requisite showing in these circumstances.
-10-
Finally, because Petitioner is not entitled to a certificate of
appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Ft. Myers, Florida, on this
April, 2014.
SA: alr
Copies: All Parties of Record
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11th
day of
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