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).

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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

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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.

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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