Barker v. Secretary, DOC et al

Filing 9

OPINION AND ORDER dismissing with prejudice 1 Petition for writ of habeas corpus. 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 7/9/2012. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN WILLIAM BARKER, III,
Petitioner,
vs.

Case No.

SECRETARY, DOC,
GENERAL,

2:11-cv-563-FtM-29SPC

FLORIDA ATTORNEY

Respondents.
___________________________________
OPINION AND ORDER
Petitioner

John

William

Barker,

III

(“Petitioner”

or

“Barker”), 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 September 20, 2011.1

Pursuant to the

Court's Order to respond and show cause why the Petition should not
be granted (Doc. #5), Respondent filed a limited response on

The Petition (Doc. #1) was filed in this Court on October 3,
2011, 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).
1

February 2, 2011, seeking dismissal of the Petition on the grounds
that the Petition is time barred pursuant to 28 U.S.C. § 2244(d).2
See Respondent’s Response to Petition for Writ of Habeas Corpus
(Doc. #6, Response) at 1. Respondent submits exhibits (Exhs. 1-11)

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-

in support of the Response.
1-2).

See Appendix to Exhibits (Doc. #8-1 at

Petitioner was given admonitions and a time frame to file a

reply to the Response (Doc. #5), but elected not to file a reply.
See generally docket.
Barker
Manslaughter

This matter is ripe for review.

challenges
(Count

his

I)

and

December
Home

21,

2005,

Invasion

conviction

Robbery

(Count

for
II)

entered by the Twentieth Circuit Court, Lee County, Florida for
which he was sentenced to 15 years imprisonment on Count I and Life
on Count II.

Exh. 1.

Barker’s sentences and conviction were per

curaim affirmed on direct appeal on October 17, 2007.
Barker v. State, 967 So. 2d 205 (Fla. 2d DCA 2007).

Exh. 4;

Consequently,

Barker’s state conviction became final on Tuesday, January 15,
2008.

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
April 24, 1996, effective date of the AEDPA.

This was after the
Thus, Petitioner’s

one-year time period for filing a federal habeas challenging his
conviction expired on Thursday, January 15, 2009.4

Consequently,

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

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Downs

the

Petition

filed

in

this

Court

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, 231 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 September 2, 2008.

Exh. 5.

On

February 17, 2010, the post-conviction trial court denied the
motion.

Exh. 5.

Petitioner did not appeal the adverse ruling so

the order was final on March 19, 2010.
On March 19, 2009, while Barker’s Rule 3.850 motion was
pending, he filed a motion for post-conviction DNA testing pursuant
to Florida Rule of Criminal Procedure 3.853.

Exh. 6.

On February

23, 2010, the post-conviction court denied the Rule 3.853 motion,
and the appellate court per curiam affirmed on August 11, 2010.
Exh. 7; Barker v. State, 42 So. 3d 238 (Fla. 2d DCA 2010).
issued on September 8, 2010.

Exh. 8.

Mandate

Nonetheless, Barker garners

no tolling for his Rule 3.853 motion, because a motion for DNA
testing is not considered “an application for post-conviction or
other collateral review with respect to the pertinent judgment, for

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purposes of the AEDPA tolling statute.” Brown v. Sec’y, Fla. Dep’t
of Corr., 530 F.3d 1335, 1337-38 (11th Cir. 2008).
Thus, Barker permitted another 265 days to expire until he
filed his motion to correct illegal sentence pursuant to Florida
Rule of Criminal Procedure 3.800 on December 9, 2010.

Exh. 1.

The

post-conviction court denied the Rule 3.800 motion on October 15,
2011.

Exh. 9.

Barker did not appeal the adverse ruling.

However,

Barker does not benefit from the filing of his Rule 3.800 motion
because the federal limitations had already expired by the time
Barker filed this motion.

Once the AEDPA’s limitations period

expires, it cannot be reinitiated. Tinker v. Moore, 255 F.3d 1331,
1333 (11th Cir. 2001), cert. denied, 534 U.S. 1144 (2002)); Webster
v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000).

Similarly, Barker

does not benefit from his May 17, 2011 petition for belated appeal
on his Rule 3.850 motion, Exh. 10, which was denied by the
appellate court on June 23, 2011.
3d 520 (Fla. 2d DCA 2011).

Exh. 11; Barker v. State, 65 So.

More specifically, any post-conviction

filings by Petitioner after Monday, August 2, 2010,5 the date
Barker’s federal limitations period expired, “cannot toll that
period because there is no period remaining to be tolled.” Tinker,
255 F.3d at 1333.

Because the one-year limitations period expired on Saturday,
July 31, 2010, the Court affords Barker until the next business day
to file an application for post-conviction or collateral review.
5

-5-

The

Supreme

Court

recognizes

that

AEDPA's

statutory

limitations period set forth in Ҥ 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
been

equitable tolling only if he can demonstrate that: (1) he has
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.”

San Martin v. McNeil, 633

F.3d. 1257, 1267 (11th Cir. 2011). The petitioner bears the burden
of establishing that equitable tolling applies.

Drew v. Dep’t of

Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).

Here, Petitioner

offers no explanation or argument as to why he should be entitled
to equitable tolling.

Instead, Barker incorrectly assumes that he

is entitled to tolling for his Rule 3.853 motion and the filing of
his motion for a belated appeal.

Petition at 36.

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).
-6-

Therefore, it is now
ORDERED and ADJUDGED:
The Petition (Doc. #1) is DISMISSED with prejudice as

1.
untimely.
2.
this

The Clerk of the Court shall enter judgment dismissing

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”).

28 U.S.C. § 2253(c)(1); Harbison v.

Bell, ___ U.S. ___, 129 Ct. 1481, 1485 (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.

-7-

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 July, 2012.

SA: hmk
Copies: All Parties of Record

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9th

day