Pitts v. Secretary, Department of Corrections et al

Filing 17

ORDER OF DISMISSAL dismissing Florida Attorney General as a named respondent; dismissing 8 Amended petition for writ of habeas corpus with prejudice as time-barred. A certificate of appealability is denied. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 5/30/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SAVARIO S. PITTS,
Petitioner,
v.

Case No: 2:15-cv-400-FtM-29MRM

SECRETARY,
DEPARTMENT
OF
CORRECTIONS
and
ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents. 1
ORDER OF DISMISSAL
This matter comes before the Court upon an amended petition
for habeas corpus relief filed through counsel pursuant to 28
U.S.C. § 2254 by Savario S. Pitts (“Petitioner”), a prisoner of
the Florida Department of Corrections (Doc. 8, filed November 9,
2015).

Petitioner, proceeding pro se, attacks the convictions and

sentences entered by the Twentieth Judicial Circuit Court in
Charlotte

County,

Florida

for

robbery

with

a

deadly

carjacking with a weapon, and dealing in stolen property.

weapon,
Id. at

1.

1

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.

Respondent asserts that this Court must dismiss the amended
petition because it was not timely filed (Doc. 11, filed March 11,
2016).

Petitioner has filed a reply in which he asserts that

Respondent has miscalculated the AEDPA filing deadline, and that
the petition is indeed timely (Doc. 16).

The petition is ripe for

review.
Petitioner raises three claims in his petition (Doc. 1).
However, the Court cannot reach the merits of these claims because,
as

explained

below,

the

pleadings,

exhibits,

and

attachments

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

Background and Procedural History 2

On July 13, 2004, a jury found Petitioner guilty of robbery
with a deadly weapon (count one); carjacking with a weapon (count
two); and dealing in stolen property (count three) (Ex. 2 at 3).
Petitioner was sentenced to thirty years in prison.

Id.

On March

8, 2006, Plaintiff’s convictions and sentences were affirmed by
Florida’s Second District Court of Appeal (Ex. 1); Pitts v. State,
923 So. 2d 1173 (Fla. 2d DCA 2006).
On April 13, 2007, Petitioner filed a state petition for writ
of habeas corpus in which he alleged ineffective assistance of

2

Unless otherwise indicated, citations to exhibits are to
those filed by Respondent on March 11, 2016 (Doc. 12).

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appellate

counsel

(Ex.

2).

The

state

habeas

petition

was

dismissed on October 31, 2007 (Ex. 4).
On October 12, 2007, Petitioner filed a pro se motion for
post-conviction relief pursuant to Rule 3.850 of the Florida Rules
of Criminal Procedure (Ex. 3).

The post-conviction court denied

the Rule 3.850 motion on November 26, 2012 (Doc. 1-1 at 2-11).
Florida’s Second District Court of Appeal affirmed on January 3,
2014.

Mandate issued on April 9, 2014 (Ex. 5).

On June 6, 2014, Petitioner filed a motion to correct an
illegal sentence pursuant to Rule 3.800(a) of the Florida Rules of
Criminal Procedure (Ex. 6).

The state trial court denied the

motion on September 4, 2014 (Ex. 7).

Petitioner appealed, the

denial, and the appeal was still pending when Petitioner filed his
federal habeas petition.
Petitioner filed his first habeas petition in this Court on
July 1, 2015 (Doc. 1).

Petitioner filed an amended petition on

November 9, 2015 (Doc. 8).
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

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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.

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 limitation 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 March 8, 2006 (Ex. 1).
His judgment became final ninety days later—when Petitioner’s time

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to seek review in the United States Supreme Court expired. See
Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (recognizing
that a petitioner has ninety days to seek certiorari in Supreme
Court

after

direct

review

in

state

courts).

Petitioner’s judgment became final on June 6, 2006. 3

Accordingly,
Petitioner

then had through June 6, 2007 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 original federal habeas petition was filed on
July 1, 2015 (Doc. 1).

Therefore, it was filed 2974 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

3

Petitioner does not disagree that his convictions were
affirmed by Florida’s Second District Court of Appeal on March 8,
2006 (Doc. 16 at 2). Rather, he urges that his conviction became
final 121 days later, on July 7, 2006. Id. at 3.
Petitioner
provides no authority for this assertion, which is incorrect. See
Bond, 309 F.3d at 774.

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any period of limitation under this subsection.”

28 U.S.C. §

2244(d)(2).
On April 13, 2007, Petitioner filed a state petition for writ
of habeas corpus alleging ineffective assistance of appellate
counsel

(Ex.

2).

This

tolled

Petitioner’s

limitation after 311 days had run.

AEDPA

statute

of

The petition was dismissed on

October 31, 2007 (Ex. 4), but by that time, another tolling motion
had

been

filed

and

was

still

pending,

so

the

dismissal

of

Petitioner’s state habeas petition did not start the AEDPA clock.
On October 12, 2007, while his AEDPA limitations period was
stilled tolled by his state habeas petition, Petitioner filed his
Rule 3.850 motion (Ex. 3).

The Rule 3.850 motion remained pending

until the state appellate court issued its mandate on April 9,
2014 (Ex. 5).

Petitioner then had 54 days, or until June 2, 2014,

to file his federal habeas petition or another tolling motion in
state court.
Petitioner did not file another post-conviction motion in
state court until June 6, 2014, when he filed a motion to correct
an illegal sentence (Ex. 6).

However, this motion could not toll

the AEDPA statute of limitation because the limitation period
expired on June 2, 2014.

See Webster v. Moore, 199 F.3d 1256,

1259 (11th Cir. 2000) (“A state-court petition like [Petitioner’s]
that is filed following the expiration of the limitations period

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cannot toll that period because there is no period remaining to be
tolled.”).
Petitioner did not file his federal habeas petition until
July 1, 2015.
d.

Accordingly, the petition is 394 days late.

Petitioner is not entitled 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).

“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

prevents the petitioner from timely filing.” Id.

conduct

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 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 has not provided any reason for this Court to
consider equitable tolling.

Rather, it appears that he, or his

attorney, merely miscalculated the date on which his conviction

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became final.

A miscalculation of a filing date does not warrant

equitable tolling.

See Hutchinson v. Florida, 677 F.3d 1097 (11th

Cir. 2012) (no equitable tolling when attorney miscalculated date
on which state judgment became final and Petitioner missed his
federal habeas filing date as a result).

Accordingly, his habeas

petition is dismissed as time-barred pursuant to 28 U.S.C. §
2244(d).
III. Certificate of Appealability 4
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

4

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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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.
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

Savario S. Pitts 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 May, 2017.

SA: OrlP-4
Copies: All Parties of Record

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30th

day