McClain v. Secretary, DOC et al

Filing 13

OPINION AND ORDER dismissing 1 Petition for writ of habeas corpus with prejudice as time-barred. The Clerk shall enter judgment dismissing the case with prejudice, terminate any pending motions and deadlines, and close the case. A certificate of appealability is denied. Signed by Judge John E. Steele on 5/11/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CODY MCCLAIN,
Petitioner,
v.

Case No: 2:14-cv-530-FtM-29MRM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
ORDER AND ORDER
Petitioner

Cody

McClain

(“Petitioner”

or

“McClain”),

initiated this action by filing a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #1, “Petition”)
and memorandum of law (Doc. #2, “Memorandum”) on August 26, 2014. 1
Pursuant to the Court’s Order to respond and show cause why the

1

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).

Petition should not be granted (Doc. #7), Respondent filed a
Limited Response (Doc. #8, Response) arguing that the Petition is
time-barred pursuant to 28 U.S.C. § 2244(d). 2

Respondent submits

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 apply to
an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of B
(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

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exhibits (Exhs. 1-14) in support of the Response.
of Exhibits (Doc. #10).
Petitioner

See Appendix

This matter is ripe for review.

challenges

his

2011

plea-based

judgment

of

conviction for driving while license was cancelled, suspended, or
revoked causing serious bodily injury or death entered by the
Twentieth Judicial Circuit Court, Lee County, Florida (case number
09-cf-502). 3

Petitioner was sentenced to a term of imprisonment

on May 19, 2011.

Petition at 1; Response at 2.

Petitioner did

not pursue a direct appeal.
Because Petitioner did not file a direct appeal, his judgment
became final thirty days after judgment was filed, when his time
expired to file a direct appeal, or on June 18, 2011, which fell
on a Saturday, so the following Monday, June 20, 2011.

See Pugh

v. Smith, 465 F.3d 1295, 1299-1300 (11th Cir. 2006)(recognizing a
petitioner did not receive the benefit of the 90-day grace period
to file a writ of certiorari to U.S. Supreme Court when the
petitioner did not pursue an appeal to the state court of last
resort); 28 U.S.C. § 2244(d)(stating the limitation period shall
run from “the date on which the judgment became final by the

toward
any
subsection.

period

of

limitation

3

under

this

Additionally, Petitioner pled guilty to driving while
license suspended or revoked as a habitual offender as charged in
case number 09-cf-078.
Pursuant to the plea terms, the State
nolle prossed the remaining charges in case number 09-cf-502.

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conclusion of direct review, or the expiration of the time for
seeking such review.”).

In Florida, a notice of appeal must be

filed within 30 days after the entry of the decision or judgment
at issue.

Fla. R. App. P. 9.140(b)(2); McGee v. State, 684 So.

2d 241 (Fla. 2d DCA 1996).
Petitioner’s conviction became final on Monday, June 20,
2011, which was after the April 24, 1996 effective date of the
AEDPA.

Thus, Petitioner=s one-year time period for filing a

federal habeas challenging his conviction expired on Wednesday,
June 20, 2012. 4

Consequently, the Petition filed in this Court

on August 26, 2014, 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, 1163 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 January 25, 2013.

See Exh. 6.

However, by that time, Petitioner’s AEDPA period had lapsed, and
the Rule 3.850 motion could not operate to toll the statute of

4

Applying “anniversary date of the triggering
Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).

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event.”

limitation.
2001)

(a

See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.

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)).
Thus, the instant Petition is due to be dismissed as untimely,
unless Petitioner is entitled to equitable tolling.
The

United

States

Supreme

Court

recognizes

that

AEDPA's

statutory limitations period set forth in Ҥ 2244(d) is subject to
equitable tolling in appropriate cases.”
U.S. 631, 649 (2010).

Holland v. Florida, 560

A petitioner is entitled to equitable

tolling only if he can demonstrate that: (1) he has been pursuing
his

rights

diligently,

and

circumstance stood in his way.
and citations omitted).

(2)

that

some

extraordinary

Id. at 2562 (internal quotations

“The diligence required for equitable

tolling purposes is ‘reasonable diligence,’ not maximum feasible
diligence.”

Id.

at

2565.

Further,

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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 petitioner bears the burden

of establishing that equitable tolling applies.

Drew v. Dep’t of

Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).
Petitioner acknowledges that his Petition is untimely, but
explains the untimeliness is a result of his transfers among
Florida correctional facilities.

Petition at 5.

Specifically,

Petitioner states that on May 27, 2011, he was transferred from
DeSoto

County

to

Hardee

County;

on

June

30,

2011,

he

was

transferred from Hardee County to Hendry County; and ultimately in
January

2012,

he

arrived

at

the

South

Florida

Department

of

Corrections Reception Center.
Respondent

argues

that

Petitioner’s

transfers

insufficient to establish reasonable diligence.

were

Response at 6.

Respondent further contends that such transfers do not constitute
extraordinary circumstances and to the contrary the appellate
court had found such transfers are ordinary.

Id. at 6 (citing

Paulcin v. McDonough, 259 F. App’x 211, 213 (11th Cir. 2007)).
The Court agrees with Respondent.

Petitioner lists the dates

of his transfer, but does not present sufficient facts for this
Court

to

conclude

that

he

is

entitled

to

equitable

Paulcin, 259 F. App’x at *1-*2 (citations omitted).

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tolling.

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).
ACCORDINGLY, it is hereby
ORDERED:
1.

The § 2254 Petition (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

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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.
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 May, 2017.

SA: ftmp-1
Copies: All Parties of Record

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11th

day