Mitchell v. Secretary, DOC et al
Filing
20
OPINION AND ORDER dismissing 1 Petition for writ of habeas corpus with prejudice as time-barred. The Clerk shall enter judgment accordingly, terminate all pending matters, and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 1/23/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LARRY WAYNE MITCHELL, JR.,
Petitioner,
v.
Case No: 2:14-cv-102-FtM-29MRM
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
OPINION AND ORDER
Petitioner Larry Wayne Mitchell (“Petitioner” or “Mitchell”),
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 February 17, 2014. 1
Pursuant to the Court’s Order to respond
and show cause why the Petition should not be granted (Doc. #12),
Respondent filed a Limited Response (Doc. #15, Response) on July
1The
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).
20, 2015, incorporating a 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. A1-J8) in support of
the Response.
See Appendix of Exhibits (Doc. #17).
Petitioner
2On
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.
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filed a Reply to the Response (Doc. #18, Reply).
For the reasons
that follow, the Court finds the Petition is due to be dismissed
as time-barred.
Mitchell
challenges
his
May
6,
2003
conviction
of
manslaughter and attempted robbery with a firearm resulting in
death entered by the Twentieth Circuit Court, Lee County, Florida
(case number 01-cf-3525).
Mitchell was sentenced to 15 years on
the manslaughter conviction and life on the attempted robbery
conviction under Florida’s 10/20/life statute.
Exh. A1-A2.
affirmed
on
Consequently,
Response at 1;
Mitchell’s sentences and conviction were per curiam
direct
appeal
Mitchell’s
on
state
Thursday, October 21, 2004.
July
23,
conviction
2004.
became
Exh.
B6.
final
on
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
This was after the April 24, 1996, effective date of the AEDPA.
Thus, Petitioner’s one-year time period for filing a federal habeas
3
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[.]”
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challenging his conviction expired on Friday, October 21, 2005. 4
Consequently, the Petition filed in this Court on February 17,
2014, would be untimely, unless Petitioner availed himself of one
of the statutory provisions that 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, 158 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 March 29, 2005.
See Exh. C1.
The AEDPA clock stopped and the time remained tolled until the
appellate court issued mandate on September 24, 2008.
Exh. D5.
Another 84 days ran until Mitchell filed his first, properly
filed
postconviction
motion
under
Florida
Procedure 3.800(a) on December 18, 2008.
Rule
of
Criminal
Mitchell’s Rule 3.800(a)
motion remained pending until mandate issued on March 14, 2012.
The AEDPA clock resumed ticking on March 15, 2012 and expired in
July of 2012.
Mitchell filed various postconviction motions between March
15, 2012 and the date he filed the instant federal petition
4Applying
“anniversary date of the triggering event.”
McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).
- 4 -
Downs v.
(February 17, 2014), but the AEDPA clock was not tolled because
these motions were not filed “properly.”
Mitchell’s untimely and
successive Rule 3.850 motions filed on February 3, 2010 (Exh. H1),
and October 17, 2011 (Exh. I1), did not toll the AEDPA clock
because the state court expressly denied both as untimely. Exhs.
H2, I2.
“When a postconviction petition is untimely under state
law, that is the end of the matter for purposes of § 2244(d)(2).”
Allen
v.
Siebert,
552
U.S.
3,
7
(2007)
DiGuglielmo, 544 U.S. 408 (2005)).
garnered
tolling
from
these
(quoting
Pace
v.
Even if Mitchell somehow
improperly
filed
postconviction
motions, he then waited over a year to file his petition for
belated discretionary review with the Florida Supreme Court (Exh.
J7) from the date the appellate court denied relief on an untimely
and
successive
postconviction
motion.
(citing Exh. J2, J3, J4, J6, J7).
See
Response
at
9-10
Thus, the instant Petition must
be dismissed as untimely.
Petitioner argues that the Petition is not untimely because
he has proof that the Assistant State Attorney was not qualified
to be a state attorney.
Reply at 2.
Additionally, Petitioner
asserts that “if the evidence would have been presented to the
juror, they would not have convicted him.”
Id.
to reference any specific evidence, however.
Petitioner fails
Id.
Under § 2244(d)(1)(D), the one-year limitations period may
run
from
the
date
on
which,
as
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a
result
of
exercising
due
diligence,
predicate
the
of
petitioner
the
2244(d)(1)(D).
claim
could
or
have
claims
Petitioner’s
discovered
presented.
arguments
“evidence” are unavailing.
the
28
generally
factual
U.S.C.
referring
§
to
None of the arguments Petitioner
raises actually involve new evidence to trigger a later start date
for the one-year limitations period.
Further, Mitchell is not entitled to equitable tolling as
discussed in
Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549,
2560 (2010).
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.
“The
Id. at 2562 (internal quotations and citations omitted).
diligence
required
for
equitable
tolling
purposes
‘reasonable diligence,’ not maximum feasible diligence.”
2565.
is
Id. at
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.”
2011).
San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir.
The petitioner bears the burden of establishing that
equitable tolling applies.
1286 (11th Cir. 2002).
Drew v. Dep’t of Corr., 297 F.3d 1278,
Mitchell does not make such a showing.
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
- 6 -
period should not be imposed upon him.
Therefore, the Court will
dismiss this case with prejudice pursuant to 28 U.S.C. § 2244(d).
ACCORDINGLY, it is hereby
ORDERED:
1.
The § 2254 Petition for Writ of Habeas Corpus (Doc. #1)
is DISMISSED, with prejudice, as time-barred.
2.
The Clerk of Court 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”).
28 U.S.C. § 2253(c)(1); Harbison v.
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.”
showing,
petitioner
28 U.S.C. § 2253(c)(2).
“must
demonstrate
that
To make such a
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.
- 7 -
322, 335-36 (2003)(citations omitted).
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 January, 2017.
SA: ftmp-1
Copies: All Parties of Record
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23rd
day
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