Bauer v. Florida Attorney General et al

Filing 20

ORDER OF DISMISSAL dismissing the Florida Attorney General as a named respondent; dismissing 10 Amended petition for writ of habeas corpus with prejudice as time-barred. Petitioner is denied a certificate of appealability. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 4/14/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSHUA AURTHUR BAUER,
Petitioner,
v.

Case No: 2:15-cv-148-FtM-29CM

FLORIDA ATTORNEY GENERAL,
STATE
OF
FLORIDA,
and
SECRETARY, DOC,
Respondents. 1

ORDER OF DISMISSAL
This matter comes before the Court upon an amended petition
for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by
Joshua A. Bauer (“Petitioner”) who is presently a prisoner of the
Florida Department of Corrections (Doc. 10, filed July 1, 2015).
Petitioner, proceeding with counsel, attacks the convictions and
sentences entered by the Twentieth Judicial Circuit Court in Lee
County, Florida for first degree murder and attempted robbery with
a firearm. Id.

1

Respondent asks this Court to dismiss the petition

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.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004) (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.

with prejudice as untimely filed (Doc. 14, filed September 3,
2015).

Petitioner filed a reply (Doc. 19), and the matter is ripe

for review.
Petitioner raises five claims in his amended petition (Doc.
10).
as

The Court cannot reach the merits of these claims because,

explained

below,

the

pleadings,

exhibits,

and

attachments

before the Court establish that the petition must be dismissed as
untimely.
I.
On

August

Background and Procedural History
17,

2009,

after

a

jury

trial,

Petitioner

was

adjudicated guilty of first-degree felony murder, in violation of
Florida Statute § 782.04 (count one) and attempted robbery with a
firearm causing death (count two), in violation of Florida Statute
§ 812.13 (Ex. 1e at 363-72).

Petitioner was sentenced to life

in prison without the possibility of parole on count one and to
fifteen years in prison on count two. Id.

On September 14, 2011,

Florida’s Second District Court of Appeal affirmed the judgment
and sentence without a written opinion (Ex. 4); Bauer v. State, 69
So. 3d 282 (Fla. 2d DCA 2011).
On September 19, 2012, Petitioner, through post-conviction
counsel, filed a motion for post-conviction relief pursuant to
Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850
motion”) (Ex. 6 at 1-22).

On October 14, 2012, the post-conviction

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court dismissed the Rule 3.850 motion because it failed to contain
Petitioner’s

sworn

signature.

Id.

at

23.

The

dismissal

was

without prejudice to Petitioner filing a timely Rule 3.850 motion
that included a proper oath.

Id.

Petitioner filed a second Rule 3.850 motion on January 10,
2013 (Ex. 6 at 25-49).

On January 28, 2014, the post-conviction

court denied the second Rule 3.850 motion on its merits (Ex. 6 at
337-42).

On October 8, 2014, Florida’s Second District Court of

Appeal affirmed without a written opinion (Ex. 10); Bauer v. State,
156 So. 3d 1086 (Fla. 2d DCA 2014).

The state appellate court

denied rehearing on November 17, 2014, and mandate issued on
December 9, 2014 (Ex. 11; Ex. 12).
Petitioner delivered his initial 28 U.S.C. § 2254 habeas
petition for writ of habeas corpus to prison officials for mailing
on March 5, 2014 (Doc. 1).
II.
a.

Analysis

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:

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(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.

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)

Florida’s

Second

District

Court

of

Appeal

affirmed

Petitioner’s convictions and sentences on September 14, 2011 (Ex.
4).

His judgment became final ninety days later—when Petitioner’s

time to seek review in the United States Supreme Court expired.

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See Bond v. Moore, 309 F.3d 770 (11th Cir. 2002) (Petitioner has
ninety days to seek certiorari in Supreme Court after direct review
in state courts).

Accordingly, Petitioner’s judgment became final

on December 13, 2011.

Petitioner then had through December 14,

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 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, Dep’t of
Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)).
Petitioner’s federal habeas petition was filed on March 5,
2015 (Doc. 1).

Therefore, it was filed 1177 days late unless

tolling principles apply to render it timely.
c.

Petitioner’s habeas corpus petition is not subject to
statutory 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.”
2244(d)(2).

28 U.S.C. §

An application is properly filed “when its delivery

and acceptance are in compliance with the applicable laws and rules
governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).

To

be “properly filed,” the application must satisfy the mechanical
rules that are enforceable by the clerks. Pace v. DiGuglielmo, 544

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U.S.

408,

415

(2005).

“These

[rules]

usually

prescribe,

for

example, the form of the document, the time limits upon its
delivery, the court and office in which it must be lodged, and the
requisite filing fee.” Artuz, 531 U.S. at 8.

Moreover, in Florida,

“[t]he motion must be under oath stating that the defendant has
read the motion or that it has been read to him or her, that the
defendant understands its content, and that all of the facts stated
therein are true and correct.” Fla. R. Crim. P. 3.850(c).
Petitioner filed his first Rule 3.850 motion on September 19,
2012, after 280 days of his AEDPA statute of limitation had passed
(Ex. 6 at 1-22).

The motion was dismissed without prejudice on

October 14, 2012 because “the motion, prepared by counsel on
Defendant’s behalf, [was] not properly signed by Defendant under
oath.” Id. at 23.

The Eleventh Circuit has recognized that a Rule

3.850 motion that is not properly filed because it lacks a properly
sworn oath does not toll the AEDPA statute of limitations. Hurley
v. Moore, 233 F.3d 1295, 1298 (11th Cir. 2000)(“We conclude that
Hurley’s § 2254 petition could only be considered timely if his
first state post-conviction motion under Fla. R. Crim. P. 3.850,
dismissed for failure to comply with the procedural requirement of
a written oath, is a properly-filed post-conviction motion. It is
not.”); Jones v. Sec’y. Fla. Dep’t of Corr., 499 F. App’x 945, at
*4 (11th Cir. 2012)(Because Petitioner’s Rule 3.850 motion was

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signed only by Petitioner’s counsel, and not by Jones himself, his
Rule 3.850 motion “was not properly verified and did not toll
AEDPA’s limitations period.”) (citing Hurley, 233 F.3d at 1298);
Delguidice v. Fla. Dep’t of Corr., 351 F. App’x 425 (11th Cir.
2009)(concluding that a Rule 3.850 motion filed in state court was
not properly filed because it did not contain a written oath).
Petitioner notes that, in some cases, the Northern District
of Florida has concluded that an initial, improperly filed, Rule
3.850 motion is “pending” during the period between the state
circuit court’s order striking the motion with leave to amend and
Petitioner’s filing a timely amended Rule 3.850 motion (Doc. 29 at
3-5) (citing Barry v. Crews, No. 5:14cv20/RS/EMT, 2014 WL 6909410
(N.D.

Fla.

Dec.

9,

2014)

and

Peterson

v.

Jones,

No.

3:14cv104/RV/CJK, 2015 WL 1061677 (N.D. Fla. Mar. 11, 2015)).
Petitioner

urges

interpretation

to

that
the

applying

facts

of

his

the
case

Northern
would

District’s
result

conclusion that his § 2254 petition was timely. Id.

in

a

However,

neither of these cases is binding on this Court, and other district
courts in Florida (including the Northern District) have concluded
that an insufficiently pleaded Rule 3.850 motion stricken with
leave to amend does not toll the AEDPA statute of limitations. See
Goldsmith v. Sec’y, Fla. Dep’t of Corr., No. 3:15-cv-135-MCR-GRJ,
2016 WL 4154145, at *5 (N.D. Fla. Jun. 30, 2016) (finding Rule

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3.850 was not properly filed because the circuit court struck it
for lacking a proper oath); Overton v. Jones, 155 F.Supp.3d 1253,
1269 (S.D. Fla. 2016) (disagreeing with Peterson and noting that
a Rule 3.850 motion that is struck from the record ends the
proceedings); Butler v. Sec’y, Fla. Dep’t of Corr., No. 3:12-cv1207-J-39JRK, 2015 WL 3671227, at *2 n.4 (M.D. Fla. June 12,
2015)(same).
This Court is persuaded by the overwhelming binding and
persuasive authority from the Eleventh Circuit and other Federal
District Courts in Florida that Petitioner’s September 19, 2012
Rule 3.850 motion was not properly filed, and as a result, did not
toll the AEDPA statute of limitation.

Accordingly, Petitioner was

still required to either file his § 2254 petition or a properly
filed tolling motion by December 13, 2011.
Petitioner waited until January 10, 2013 to file a second,
properly sworn, Rule 3.850 motion (Ex. 6 at 25-49).

However, by

this time, 393 days had lapsed since Petitioner’s judgment became
final.

Accordingly, the second Rule 3.850 motion had no tolling

effect. See Tinker v. Moore, 255 F.3d 1331, 1334–35 (11th Cir.
2001) (although Florida law allows a prisoner two years to file a
Rule 3.850 motion, the prisoner must file the motion within one
year after his conviction becomes final in order to toll the oneyear limitation period); Webster v. Moore, 199 F.3d 1256, 1259

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(11th Cir. 2000)(“Under § 2244(d)(2), even ‘properly filed’ statecourt petitions must be ‘pending’ in order to toll the limitations
period. A state-court petition like [Petitioner]’s that is filed
following the expiration of the limitations period cannot toll
that period because there is no period remaining to be tolled.”).
Therefore, Petitioner’s federal habeas petition was filed 28 days
late, and he is not entitled to statutory tolling.
d.

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

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); Pollock v. Sec’y, Fla. Dep’t of Corr., 664 F. App’x 770,
772 (11th Cir. 2016).

“Equitable tolling is an extraordinary

remedy which is typically applied sparingly.” Lawrence v. Florida,
421 F.3d 1221, 1226 (11th Cir. 2005). “Equitable tolling is limited
to rare and exceptional circumstances, such as when the State’s
conduct prevents the petitioner from timely filing.” Id.

The

United States Supreme Court has stated that “a petitioner is
entitled to equitable tolling only if he shows (1) that he has
been

pursuing

his

rights

diligently,

and

(2)

that

some

extraordinary circumstance stood in his way and prevented timely

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filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (internal quotation
marks omitted)).
Petitioner asserts that he is entitled to equitable tolling
because he hired Attorney John May in either June or July of 2012
to file a federal habeas petition since Petitioner was aware that
his federal filing deadline was approaching (Doc. 19 at 9).

May

told Petitioner that he would file a Rule 3.850 motion instead and
that the motion would toll his federal statute of limitations. 2
Id.

After the initial petition was dismissed for lack of an oath,

May

sent

Petitioner

an

envelope

Petitioner signed and returned.

with

Id.

a

signature

form

which

Petitioner assumed that the

amended Rule 3.850 would be immediately filed.

Id.

After the

amended Rule 3.850 was denied, May told Petitioner that he would
need to appeal it pro se and that he would not file a federal
habeas

petition

on

his

behalf.

Id.

at

10.

Alternatively,

Petitioner asserts that the United States Supreme Court’s ruling

2

May was correct to advise Petitioner to file a Rule 3.850
motion before filing a federal habeas petition.
Otherwise,
Petitioner’s ineffective assistance claims would not have been
exhausted. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a
writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies
available in the courts of the State[.]”

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in Martinez v. Ryan, 132 S. Ct. 1309 (2012) should be extended to
excuse an untimely habeas petition.

Id.

Based on Petitioner’s allegations, he is not entitled to
equitable

tolling

because

he

has

not

demonstrated

reasonable

diligence, nor has he shown that an extraordinary circumstance
prevented him from timely filing this claim.

Florida’s Second

District Court of Appeal affirmed Petitioner’s conviction and
sentences on September 14, 2011, yet Petitioner waited nine months
before seeking counsel to file his Rule 3.850 motion, even though
he asserts that he was aware of the AEDPA’s one-year statute of
limitations.

Moreover, after the appellate court affirmed the

post-conviction

court’s

denial

of

his

Rule

3.850

motion,

Petitioner waited another three months before filing the instant
federal habeas petition.
and

as

a

result,

he

Petitioner does not explain the delays,

has

not

made

a

showing

of

“reasonable

diligence” necessary to justify equitable tolling. See San Martin
v. McNeil, 633 F.3d 1257 (11th Cir. 2011) (noting that Petitioner
had failed to explain why he waited 349 days after the Supreme
Court judgment appeared on the Florida Supreme Court docket to
file his state post-conviction motion nor why he waited another
fifteen

days

after

the

Florida

courts

disposed

of

conviction motion to file his federal habeas petition).

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the

post-

Even if Petitioner could show diligence, he has not shown
that an “extraordinary circumstance” prevented timely filing of
his federal habeas petition.

May’s conduct in failing to ensure

that Petitioner had the proper sworn oath on his Rule 3.850 motion
was, at most, gross negligence, which is insufficient to warrant
tolling Petitioner’s statute of limitations.

Petitioner alleges

that “[c]ounsel abandoned the Petitioner upon the denial of the
Rule 3.850 motion, and informed him that he would need to pursue
the appeal of the denial of the Rule 3.850 motion on a pro se basis
and that he would not be filing a Federal petition on his behalf.”
Abandonment by an attorney, in some cases, may constitute an
extraordinary

circumstance

Holland, 560 U.S. at 659.

warranting

equitable

tolling.

See

However, May’s alleged abandonment

occurred after the AEDPA statute of limitations had already expired
and there was no time left to be tolled.
counsel’s
qualify

negligence,
as

an

however

“extraordinary

gross

or

During this period,
egregious,

circumstance”

for

could

purposes

not
of

equitable tolling. See Cadet v. Fla. Dep’t of Corr., --- F.3d ---, 2017 WL 727547 (11th Cir. Feb. 24, 2017). Petitioner has also
failed to allege or show “bad faith, dishonesty, divided loyalty,
[or

any]

mental

extraordinary

impairment”

circumstances

by

May

which

may

“form

the

basis

of

in
an

certain
equitable

tolling argument.” Thomas v. Att’y Gen. Fla., 795 F.3d 1286, 1293–

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94 (11th Cir. 2015) (discussing Holland, Maples v. Thomas, 565
U.S. 266 (2012), and Cadet).
Finally,
misplaced.

Petitioner’s

reliance

on

Martinez

v.

Ryan,

is

Martinez dealt with “whether a federal habeas court

may excuse a procedural default of [a substantial] ineffectiveassistance claim when the claim was not properly presented in state
court due to an attorney’s errors in an initial-review collateral
proceeding.” 132 S. Ct. at 1313.

In other words, this Court cannot

even consider whether a Petitioner’s claim is substantial under
Martinez unless his petition was timely filed.

The Eleventh

Circuit has expressly rejected the argument that Martinez applies
to overcome the AEDPA statute of limitations bar. Arthur v. Thomas,
739 F.3d 611, 630 (11th Cir. 2014) (“the Martinez rule explicitly
relates to excusing a procedural default of ineffective-trialcounsel claims and does not apply to AEDPA’s statute of limitations
or the tolling of that period.”); Lambrix v. Sec’y, Fla. Dep’t of
Corr., 756 F.3d 1246, 1249 (11th Cir. 2014) (noting that Martinez
“has no application to the operation or tolling of the § 2244(d)
statute of limitations for filing a § 2254 petition.”) (internal
quotations omitted); Chavez v. Sec’y, Fla. Dep’t of Corr., 742
F.3d 940, 945 (11th Cir. 2014) (recognizing that Martinez “has no
application

to

other

matters

like

the

one-year

limitations period for filing a § 2254 petition.”).

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statute

of

Accordingly,

Petitioner

equitable tolling.

is

not

entitled

to

statutory

or

This petition is dismissed as time-barred

pursuant to 28 U.S.C. § 2244(d).
III. Certificate of Appealability 3
Petitioner is not entitled to a 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, 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). Petitioner has not made the requisite showing in these
circumstances.

3

Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Id. As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether Petitioner is entitled to a
certificate of appealability.

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Because

Petitioner

is

not

entitled

to

a

certificate

of

appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Florida Attorney General is DISMISSED as a named

Respondent.
2.

The amended petition for writ of habeas corpus filed by

Joshua A. Bauer is DISMISSED WITH PREJUDICE as time-barred.
3.

Petitioner is DENIED a certificate of appealability.

4.

The Clerk of Court is directed to terminate any pending

motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of April, 2017.

SA: OrlP-4
Copies: All Parties of Record

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14th

day