Mayor v. Florida Attorney General et al

Filing 18

OPINION AND ORDER re: 1 Petition for writ of habeas corpus is denied as untimely with prejudice. The Attorney General of the State of Florida is DISMISSED from this case. The Clerk of the Court is DIRECTED to enter judgment accordingly, terminate all pending motions, and close the file. Signed by Judge Sheri Polster Chappell on 3/31/2017. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANIBAL S. MAYOR,
Petitioner,
v.

Case No: 2:16-cv-490-FtM-99CM

FLORIDA ATTORNEY GENERAL
and SECRETARY, DOC,
Respondents.1
/
OPINION AND ORDER2
This matter comes before the Court on Anibal S. Mayor’s Petition for Habeas
Corpus Relief Pursuant to 28 U.S.C. § 2254 (Doc. 1), filed on July 22, 2016. The
Respondent, Secretary of the Department of Corrections, filed a Limited Response in
Opposition (Doc. 13) on January 20, 2017. Mayor was directed by Court Order (Doc. 14)
to file a reply brief on or before March 3, 2017. No reply has been filed. For the following
reasons, Mayor’s Petition is dismissed with prejudice as untimely.

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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.
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not affect the opinion of the Court.

BACKGROUND
On August 14, 2008, a grand jury for the Circuit Court of the Twentieth Judicial
Circuit in and for Lee County Florida indicted Mayor for first-degree murder, a capital
felony, and robbery with a deadly weapon a first-degree felony punishable by life (Ex.
001). On motion of defense counsel, the court appointed experts to evaluate Mayor for
competency to stand trial and with regard to his sanity at the time of the offense. (Ex.
002, 2a). After the evaluations (Ex. 003), Mayor was deemed competent to stand trial.
(Ex. 3a, 3b). In June 2010, Mayor’s three-day jury trial took place, and he was found
guilty as charged in the Indictment (Ex. 3c).
Before sentencing, Mayor filed a motion for new trial, alleging newly discovered
evidence. On September 14, 2010, a hearing was held on the motion to re-open. (Ex.
5a). After hearing testimony from two witnesses, the trial court denied Mayor’s motion to
re-open the case finding that the witnesses lacked credibility. (Ex. 5a). Mayor was
sentenced to life imprisonment and timely filed a notice of appeal. (Ex. 5a). Judgment
was entered on September 24, 2010. (Ex. 6, at 1).
On September 28, 2012, the Second District Court of Appeals per curiam affirmed
the trial court’s judgment and sentence. Mayor v. State, So 3d 417 (Table) (Fla. 2d DCA
2012). Mayor then filed a pro se motion for extension of time to file a motion for rehearing
(Ex. 11), but that motion was stricken by the court, as Mayor remained represented by
appellate counsel (Ex. 12).

Mayor’s counsel then filed a motion for rehearing and

requesting a written opinion (Ex. 13), which the state appellate court denied on November
26, 2012. (Ex. 14). The appeals court issued mandate on December 26, 2012. (Ex. 15).

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On

August

8,

2013,

Mayor

filed

a

pro

se

motion

to

vacate

and

set aside his judgments of conviction and sentences pursuant to Rule 3.850 of the Florida
Rules of Criminal Procedure. Mayor asserted four grounds for relief: (1) counsel failed to
investigate and call to testify at trial multiple witnesses favorable to his defense; (2)
counsel failed to object and move for a mistrial when the government impermissibly
argued facts not in evidence during closing argument; (3) counsel failed to ensure that
the Defendant was evaluated for competence to proceed to trial under the correct Florida
Statute; and (4) cumulative errors of counsel were sufficient to undermine confidence in
the outcome of the trial. (Ex. 16, at 16-17). The State issued a response on November
27, 2013. Mayor did not file a reply brief with the post-conviction court. On April 10, 2014,
the post-conviction court denied each of Mayor’s claims. The Second District Court of
Appeals affirmed the post-conviction court’s denial on April 15, 2015. The Second District
Court of Appeals issued mandate on May 11, 2015. (Ex. 21).
Mayor signed the instant Petition and provided it to prison officials for mailing on
June 17, 2016. The Petition was docketed with this Court on June 22, 2016. The
Respondent filed a response on January 20, 2017. Three days later, this Court issued
an Order (Doc. 14) directing Mayor to file his reply to the response by March 3, 2017. In
that Order, the Court cautioned Mayor that his Petition could be dismissed without further
notice should he fail to file a response.
DISCUSSION
Respondent argues that Mayor’s Petition should be dismissed as untimely filed.
Mayor filed no response and the time to do so has expired. Mayor’s Petition is governed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–
132, 110 Stat. 1214 (1996). The AEDPA created a limitation period for petitions for writ

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of habeas corpus filed pursuant to 28 U.S.C. § 2254. “A 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.” Hawks v. Sec’y, De’t of Corr., No. 8:13-CV-2505-T-30AEP,
2014 WL 445991, at *1 (M.D. Fla. Feb. 4, 2014). “The limitation period shall run from the
latest of . . . the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A).
Additionally, “[t]he 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.” Id. § 2244(d)(2).
On November 26, 2012, the appeal court denied Mayor’s motion for rehearing on
direct appeal. Thus, Mayor’s conviction became final on February 25, 2013, after the
ninety-day period for petitioning for certiorari review expired. See Butler v. Sec’y, Florida
Dep’t of Corr., 621 F. App’x 604, 606 (11th Cir. 2015), cert. denied sub nom. Butler v.
Jones, 137 S. Ct. 142 (2016) (holding that “Sup. Ct. R. 13.3 provides that this period runs
from the date of entry of the judgment or order sought to be reviewed, and not from the
issuance date of the mandate. . . . But if a petition for rehearing is timely filed in the lower
court by any party, the time to file the petition for a writ of certiorari for all parties (whether
or not they requested rehearing or joined in the petition for rehearing) runs from the date
of the denial of the petition for rehearing . . .”)).
Here, 164 days passed that were not tolled from the February 25, 2013 final
conviction date to the time Mayor filed his Rule 3.850 post-conviction motion, on August
8, 2013. Once his Rule 3.850 post-conviction motion was filed, the time to file his habeas
petition in federal court was then tolled. Mayor’s post-conviction Rule 3.850 motion was

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denied by the post-conviction court. Mayor appealed the denial. The appeals court
affirmed the post-conviction court’s denial of his Rule 3.850 motion and issued mandate
on May 11, 2015. After the May 11, 2015 mandate was issued, Mayor had 201 days with
which to file his habeas petition in federal court. However, another 404 days passed
before Mayor signed the instant Petition for habeas corpus relief and turned it over to
prison officials to mail on June 17, 2016. See Edison v. Sec’y, DOC, No. 206-CV-440FTM-29SPC, 2009 WL 1684483, at *2 (M.D. Fla. June 16, 2009) (holding that a pro se
petitioner’s collateral action is deemed filed in federal court on the date it is signed and
delivered to prison officials for mailing). Based upon the time frame in the record before
the Court, Mayor’s Petition for habeas corpus relief was filed 203 days after § 2254’s one
year limitation period had expired. Accordingly, Mayor’s Petition for habeas corpus relief
is untimely and due to be denied.
Section 2254 permits equitable tolling of the limitations period when a movant
untimely files because of extraordinary circumstances that are both beyond his control
and unavoidable with diligence. Diaz v. Sec’y Dep’t. of Corr., 362 F. 3d 698, 702 (11th
Cir. 2004). However, Mayor is not entitled to equitable tolling of the limitations period,
because he has not shown, nor even attempted to show, that an extraordinary
circumstance beyond his control prevented him from timely exercising his right to file his
Petition.
Accordingly, it is now ORDERED:
(1) The Attorney General of the State of Florida is DISMISSED from this case.
(2) Anibal S. Mayor’s Petition for Habeas Corpus Relief Pursuant to 28 U.S.C.
§ 2254 (Doc. 1) is DENIED as untimely with prejudice.

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(3) The Clerk of the Court is DIRECTED to enter judgment accordingly, terminate
all pending motions, and close the file.

CERTIFICATE OF APPEALABILITY AND LEAVE TO FILE APPEAL
IN FORMA PAUPERIS
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
for writ of habeas corpus 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, 184 (2009). “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) 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. 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 this 31st day of March, 2017.

Copies: Anibal S. Mayor
Asst. Attorney General, Tonja Vickers Rook
FtMP2

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