Hale v. Florida Attorney General et al

Filing 13

MEMORANDUM AND ORDER Hale's Petition for Writ of Habeas Corpus (Docket No. 1 ) is denied. A Certificate of Appealability will not issue; and The Clerk shall enter judgment accordingly, terminate all remaining deadlines as moot, and close the file. Signed by Judge Paul A. Magnuson on 12/4/2017. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
Nathon Alan Hale,

Civ. No. 2:15-210-PAM-MRM
Petitioner,

v.

MEMORANDUM AND ORDER

Florida Attorney General, Milton, Hicks, Warden, and
Secretary, Department of Corrections,
Respondents.

This matter is before the Court on a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254. (Pet. (Docket No. 1).) For the reasons that follow, the Petition is denied.
BACKGROUND
On April 11, 2011, Petitioner Nathon Alan Hale entered into a nolo contendere
plea to charges of attempted burglary of a dwelling, first degree petit theft, and criminal
mischief. (App’x Ex. 5 at 3.) The trial court sentenced him as a prison release reoffender
to 60 months on the first charge, a consecutive 60 months on the second charge, and 42
days on the third charge with 42 days’ credit for time already served. (Id. at 8.)
On September 9, 2011, Hale filed a motion for postconviction relief alleging that
trial counsel was ineffective for failing to counsel him on the consequences of his nolo
contendere plea and failing to contest the State’s evidence against him. Hale also moved
to withdraw his plea. (App’x Ex. 1 at 3, 5, 7; App’x Ex. 3.) Hale then “voluntarily
withdr[e]w his entire . . . motion” at a postconviction evidentiary hearing for an unknown

reason.

(Id.)

Based on Hale’s withdrawal, the trial court dismissed the matter on

November 19, 2012.
On March 26, 2014, Hale filed a motion to correct an illegal sentence, arguing that
his consecutive sentences as a prison release reoffender violated Florida law and that
these sentences should run concurrently. (App’x Ex. 4 at 1-2.) The trial court denied the
motion on April 4, 2014, concluding that Hale’s prison release reoffender sentence was
not enhanced and that a consecutive sentence was proper. (App’x Ex. 5 at 1-2.)
Hale filed the instant Petition on October 15, 2014. Hale again asserts that he
received an illegal enhanced sentence. (Pet. at 14.)
DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2241 et seq., a federal court’s “review is greatly circumscribed and is highly
deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).
Indeed, AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002) (citation omitted). The AEDPA restricts the Court’s review to statecourt judgments that:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

2

28 U.S.C. § 2254(d). Further, § 2254 states that “a determination of a factual issue made
by a State court shall be presumed to be correct.” Id. § 2254(e)(1). The burden is on the
petitioner to “rebut[] the presumption of correctness by clear and convincing evidence.”
Id.
The AEDPA requires that a habeas petition be timely filed and that the petitioner
have exhausted his remedies with respect to the relief he seeks.
A.

Timeliness
The State first contends that the petition is untimely. A federal habeas petition

must be filed within one year of the petitioner’s conviction becoming final. 28 U.S.C.
§ 2244(d)(1). A conviction becomes final at “the conclusion of direct review or the
expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). In Gonzalez v.
Thaler, the U.S. Supreme Court elaborates on § 2244(d)(1)(A), holding in part that:
For petitioners who pursue direct review all the way to this Court, the judgment
becomes final at the conclusion of direct review—when this Court affirms a
conviction on the merits or denies a petition for certiorari. For all other
petitioners, the judgment becomes final at the expiration of the time for seeking
such review—when the time for pursuing direct review in this Court, or in state
court, expires.
565 U.S. 134, 150 (2012) (quotation marks omitted).
In Florida, a judgment becomes final 90 days after the conclusion of direct review
to allow a petitioner the opportunity to seek a writ of certiorari with the U.S. Supreme
Court. Chavers v. Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th Cir. 2006). Once the
judgment is final and the statute of limitations begins to run, the limitations period may
be tolled where a prisoner properly files an “application for State post-conviction or other

3

collateral review with respect to the pertinent judgment or claim.”

28 U.S.C.

§ 2244(d)(2). The statute is also subject to equitable tolling where a petitioner shows
“that he has been pursuing his rights diligently, and . . . that some extraordinary
circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (quotation marks omitted).
Hale did not seek direct review, so his conviction became final on July 10, 2011,
the date on which the opportunity to seek direct review expired. Even when taking into
account the tolling of the limitations period due to Hale’s motions, more than a year
passed from the final judgment to the time he filed this Petition. Additionally, there is no
extraordinary circumstance that warrants equitable tolling. The Petition was not timely
filed and it must be dismissed.
B.

Exhaustion
The State also contends that Hale’s claim is unexhausted because he did not

appeal the denial of his motion to correct an illegal sentence.
“For a federal court to hear a habeas claim resulting from a state conviction, the
petitioner must first exhaust the remedies available in his state’s courts.” Ramos v. Fla.
Dep’t of Corr., 441 F. App’x 689, 696 (11th Cir. 2011) (citing 28 U.S.C.
§ 2254(b)(1)(A)). A claim is exhausted when “it is fairly presented to the state courts,
meaning that the same claim must be brought before both the state and federal courts and
presented in such a way ‘that a reasonable reader would understand [the] claim’s
particular legal basis and specific factual foundation.’”

Id. (alteration in original)

(quoting McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)). To fully exhaust
4

his claim, Hale was required not only to present the claim to the trial court, but also to
pursue that claim on appeal. Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004). Hale’s
Petition is unexhausted because he did not raise his claim on appeal, and therefore it must
be dismissed.
C.

Certificate of Appealability
Hale is required to secure a Certificate of Appealability before appealing the

dismissal of his habeas corpus action. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.
22(b)(1). This Court cannot grant a Certificate of Appealability unless the prisoner “has
made a substantial showing of the denial of a constitutional right.”

28 U.S.C.

§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A prisoner must
establish that the resolution of his constitutional claims “was debatable among jurists of
reason.” Lott v. Att’y Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010).
Hale has not demonstrated that his claim is debatable or that it “deserve[s]
encouragement to proceed further.” Miller-El, 537 U.S. at 327. The Court will therefore
not grant a Certificate of Appealability on Hale’s claim.

5

CONCLUSION
Hale is not entitled to federal habeas relief because his claim is untimely and
unexhausted. Accordingly, IT IS HEREBY ORDERED that:
1.

Hale’s Petition for Writ of Habeas Corpus (Docket No. 1) is DENIED;

2.

A Certificate of Appealability will NOT issue; and

3.

The Clerk shall enter judgment accordingly, terminate all remaining
deadlines as moot, and close the file.

Dated: December 4, 2017

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

6