Alter v. Florida Attorney General et al

Filing 16

ORDER OF DISMISSAL dismissing the Florida Attorney General as a named respondent; dismissing with prejudice as time-barred 1 Petition for writ of habeas corpus; denying a certificate of appealability. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 9/23/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT ALTER,
Petitioner,
v.

Case No: 2:14-cv-675-FtM-29CM

FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents. 1
ORDER OF DISMISSAL
Petitioner Robert Alter (“Petitioner”) initiated this action
for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1,
filed November 17, 2014).

Petitioner is presently confined at the

South Florida Reception Center in Doral, Florida.
proceeding

pro

se,

challenges

the

sentences

he

Petitioner,
received

for

attempted sexual battery on a child under age twelve and for lewd
and lascivious molestation of a child under age twelve (Doc. 1 at
4).

1

The Supreme Court has made clear that there “is generally
only one proper respondent to a given prisoner's habeas petition.”
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). This is “the person
with the ability to produce the prisoner's body before the habeas
court.” Id. at 435–36. When the petitioner is incarcerated and
challenges his present physical confinement “the proper respondent
is the warden of the facility where the prisoner is being held,
not the attorney general or some other remote supervisory
official.” Id. at 436 (citations omitted). In Florida, the proper
respondent in this action is the Secretary of the Florida
Department of Corrections. Therefore, the Florida Attorney General
will be dismissed from this action.

The Court ordered Respondent to show cause why the relief
sought in the amended petition should not be granted (Doc. 8).
Respondent filed a response to the petition which addressed the
petition’s timeliness and incorporated a motion to dismiss the
petition

as

time-barred

(Doc.

11;

Doc.

13).

Despite

being

directed to do so (Doc. 12), Petitioner did not reply to the
response.
Petitioner asserts that the “trial court erred in sentencing
[him] to the highest charge of sexual battery [where] the evidence
was insufficient to support the charge of sexual battery[.]” (Doc.
1 at 5).

The Court cannot reach the merits of this claim because,

as explained below, the pleadings and attachments before the Court
establish that the petition should be dismissed as untimely.
I.

Background and Procedural History
Petitioner pleaded guilty, in nine separate cases, to a total

of three counts of attempted sexual battery and to twenty counts
of lewd and lascivious molestation of children under the age of
twelve (Ex. 2).

Petitioner was sentenced to thirty years in prison

on each count, with the sentences to run concurrently (Ex. 3; Ex.
4; Ex. 5; Ex. 6; Ex. 7; Ex. 8; Ex. 9; Ex. 10; Ex. 11).

Petitioner

did not appeal any of the convictions or sentences.
On February 7, 2014, Petitioner filed a motion to correct his
sentence pursuant to Rule 3.800(a) of the Florida Rules of Criminal
Procedure (Ex. 12).

The motion was denied on February 12, 2014

- 2 -

(Ex. 13).
14).

Florida’s Second District Court of Appeal affirmed (Ex.

Mandate issued on October 24, 2014 (Ex. 15).
Petitioner filed the instant habeas petition on November 17,

2014 (Doc. 1).
II.

Analysis
A.

A 28 U.S.C. § 2254 federal habeas corpus petition is
subject to a one-year statute of limitation

Pursuant to the requirements set forth in 28 U.S.C. § 2244,
as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a one-year period of limitation applies to the
filing of a habeas petition by a person in custody pursuant to a
state court judgment.

This limitation period runs from the latest

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 that 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.

- 3 -

28 U.S.C. § 2244(d)(1).

Here, Petitioner does not allege, nor

does it appear from the pleadings or record, that the statutory
triggers set forth in §§ 2244(d)(1)(B)-(D) apply.

Therefore, the

statute of limitations is measured from the remaining statutory
trigger, which is the date on which Petitioner's conviction became
final. 28 U.S.C. §§ 2244(d)(1)(A).
B.

Petitioner's federal habeas corpus petition is untimely
under 28 U.S.C. § 2244(d)(1)(A)

Petitioner
judgment

under

does

not

attack

in

identify
the

the

instant

specific
petition.

state-court
The

latest

judgment, in case number 2011-CF-265 was entered on July 27, 2011
(Ex. 6).

Because Petitioner did not appeal the judgment, it became

final thirty days later. See Bridges v. Johnson, 284 F.3d 1201,
1202 (11th Cir. 2002) (where petitioner did not seek direct review
of

his

judgment

of

conviction

or

sentence,

his

judgment

of

conviction (entered upon his guilty plea) became “final” for
purposes of § 2244 on the date his 30–day right to appeal expired);
Fla. R. App. P. 9.140(b)(3) (an appeal by a defendant in a criminal
case is commenced by filing a notice of appeal “at any time between
rendition of a final judgment and 30 days following rendition of
a written order imposing sentence.”).
Petitioner's latest judgment became final on August 26, 2011.
Petitioner then had until August 26, 2012 to file his federal
habeas petition. Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir.
2008) (AEDPA's one year “limitations period should be calculated

- 4 -

according to the ‘anniversary method,’ under which the limitations
period expires on the anniversary of the date it began to run.”)
(citing Ferreira v. Sec’y Dept. of Corr., 494 F.3d 1286, 1289 n.1
(11th Cir. 2007)).
Petitioner's federal habeas petition was filed on November
17, 2014. 2

Therefore, it was filed 813 days late unless tolling

principles apply to render it timely.
C.

Petitioner’s habeas corpus petition is not subject to
statutory or equitable tolling

“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.”

28 U.S.C. §

2244(d)(2).
Petitioner filed his Rule 3.800 motion on February 7, 2014
(Doc. 2 at 8). However, by that time, Petitioner's AEDPA period
had lapsed, and the Rule 3.800 motion could not operate to toll
the statute of limitation. See Tinker v. Moore, 255 F.3d 1331,

2

This is the filing date under the “mailbox rule.”
See
Thompson v. State, 761 So. 2d 324, 326 (Fla. 2000) (“[W]e 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 [that] pleading would be timely
filed if it had been received and file-stamped by the Court on
that particular date.”). For purposes of calculating time, the
Court will apply the mailbox rule and refer to the dates Petitioner
signed his documents and submitted them to prison authorities.
Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999).
- 5 -

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).
Neither is Petitioner entitled to equitable tolling of the
AEDPA statute of limitations.

The Eleventh Circuit has held that

“the AEDPA's statute of limitations may be equitably tolled when
a movant untimely files because of extraordinary circumstances
that

are

both

beyond

his

control

and

unavoidable

even

with

diligence.” Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002)
(internal quotation marks omitted).
extraordinary
Lawrence

v.

“Equitable

remedy
Florida,

tolling

which
421
is

is
F.3d

“Equitable tolling is an

typically
1221,

limited

to

applied

1226

(11th

rare

and

sparingly.”
Cir.

2005).

exceptional

circumstances, such as when the State's conduct prevents the
petitioner from timely filing.” Id.
Although Petitioner was directed to respond to Respondent’s
motion to dismiss the petition as time barred (Doc. 12), he has
not done so.

Nor did Petitioner argue in his petition that his

untimeliness

should

be

equitably

3

excuse.

3

Petitioner

has

Petitioner appears to assert in his petition that he had
one year from the denial of his Rule 3.800(a) motion to file a
federal habeas petition. This is incorrect. See 255 F.3d at 1333.
To the extent Petitioner seeks to excuse the untimeliness by
arguing his unfamiliarity with the legal process or ignorance of
the law, these assertions do not support equitable tolling. See
Johnson v. United States, 544 U.S. 295, 311 (2005)(stating that
- 6 -

presented no evidence that he was the victim of “extraordinary
circumstances that [were] both beyond his control and unavoidable
even with diligence,” and thus, he does not qualify for equitable
relief. Knight, 292 F.3d at 711. Nor has Petitioner exercised the
level of diligence required to show the “rare and exceptional
circumstances” that qualify a petitioner for equitable tolling.
See Lawrence, 421 F.3d at 1226.
Finally, Petitioner has not shown that he is entitled to have
the untimeliness of his § 2254 petition excused based on actual
innocence. A district court may entertain an untimely § 2254
petition where the petitioner asserts a credible claim of actual
innocence. See San Martin v. McNeil, 633 F.3d 1257, 1267–68 (11th
Cir. 2011).

This exception applies to cases in which new evidence

shows it is more likely than not that no reasonable juror would
have convicted the petitioner. McQuiggin v. Perkins, 133 S. Ct.
1924, 1933 (2013).

Here, Petitioner argues only that the evidence

was insufficient to sentence him on the charges of sexual battery
(Doc. 1 at 4). He presents no “new reliable evidence” showing that
he is actually innocent of the crimes to which he pleaded guilty.
See Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 101617 (11th Cir. 2012).

Therefore, Petitioner is not entitled to

“the Court has never accepted pro se representation alone or
procedural ignorance as an excuse for prolonged inattention when
a statute's clear policy calls for promptness.”).
- 7 -

have the untimeliness of his § 2254 petition excused based on the
actual-innocence exception.
Petitioner is not entitled to statutory or equitable tolling
of the AEDPA one-year statute of limitation.

This petition is

dismissed as time-barred pursuant to 28 U.S.C. § 2244(d).
III. Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).

Rather, a district court must first issue

a certificate of appealability (COA).

“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, a 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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), 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 and is not entitled to a certificate
of appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Florida Attorney General is DISMISSED from this

action as a named Respondent.

- 8 -

2.

The Petition for Writ of Habeas Corpus filed by Robert

Alter (Doc. 1) is DISMISSED WITH PREJUDICE as time-barred.
3.

Petitioner is DENIED a Certificate of Appealability.

4.

The Clerk of the Court is directed to enter judgment

accordingly, terminate any pending motions, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of September, 2015.

SA: OrlP-4
Copies: Robert Alter
Counsel of Record

- 9 -

23rd

day