Quiroga v. Florida Attorney General et al

Filing 21

OPINION AND ORDER dismissing 1 Petition for writ of habeas corpus with prejudice as time-barred. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 9/7/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FILIBERTO QUIROGA,
Petitioner,
v.

Case No:

2:15-cv-12-FtM-29MRM

FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents.
OPINION AND ORDER
Petitioner Filiberto Quiroga (“Petitioner” or “Quiroga”),
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 January 6, 2015. 1

Pursuant to the Court’s Order to respond and

show cause why the Petition should not be granted (Doc. #7),
Respondent

1The

filed

a

Limited

Response

(Doc.

#17,

Response)

on

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).

February 3, 2016, 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. 1-27) in

support of the Response.

See Appendix of Exhibits (Doc. #19).

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.

Petitioner 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.
Quiroga challenges his July 20, 2009 plea-based conviction of
second degree murder and attempted robbery with a firearm entered
by the Twentieth Circuit Court, Lee County, Florida (case number
07-cf-184B).

Quiroga was sentenced to life on the second-degree

murder conviction.

Petition at 1; Response at 3.

Quiroga’s

sentences and conviction were per curiam affirmed on direct appeal
on

March

25,

2011.

Exh.

4.

Consequently,

Quiroga’s

conviction became final on Thursday, June 23, 2011.

state

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
date of the AEDPA.

This was after the April 24, 1996, effective
Thus, Petitioner’s one-year time period for

filing a federal habeas challenging his conviction expired on
Monday, June 25, 2012. 4

Consequently, the Petition filed in this

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[.]”
4Applying

“anniversary date of the triggering event.”
Downs v.
McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008). Because June 23,

Court on January 6, 2015, 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, 438 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 3.800(a) filed on June 5, 2012.

See Exh. 6.

Thus, Petitioner filed his first Rule 3.800 Motion after the
federal one-year limitations period had expired.

“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, 133334

(11th

Cir.

2001),

cert.

denied,

534

U.S.

1144

(2002)).

Consequently, Petitioner=s first Rule 3.800 Motion “filed following
the expiration of the limitations period cannot toll that period
because there is no period remaining to be tolled.”
Moore, 199 F.3d 1256, 1259 (11th Cir. 2001).

Webster v.

Thus, the instant

Petition is time-barred.

2012 fell on a Saturday, the Court calculated the deadline to fall
on the closest Monday.

Under § 2244(d)(1)(D), the one-year limitations period may
run

from

the

diligence,
predicate

date

the
of

Further,

which,

petitioner

the

2244(d)(1)(D).

on

claim

as

could

or

a

result

have

claims

of

exercising

discovered

presented.

the
28

due

factual

U.S.C.

§

Petitioner makes no claim to equitable tolling.

Petitioner

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,

Petitioner 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

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.

- 6 -

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 September, 2017.

SA: ftmp-1
Copies: All Parties of Record

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