Sakker v. Secretary, DOC et al
Filing
22
OPINION AND ORDER dismissing with prejudice 1 Petition for writ of habeas corpus as time-barred; denying a certificate of appealability. The Clerk shall enter judgment and close the case. Signed by Judge John E. Steele on 6/14/2019. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WAYNE ARTHUR SAKKER,
Petitioner,
v.
Case No:
2:16-cv-712-FtM-29MRM
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
OPINION AND ORDER
Pending before the Court is Petitioner Wayne Arthur Sakker’s
(“Petitioner”) petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 constructively filed on September 13, 2016. 1 (Doc.
#1,
“Petition”).
Petitioner
is
confined
within
the
Florida
Department of Corrections and challenges his January 5, 2012
conviction, after jury trial, for Lewd and Lascivious Molestation
on a Person Less than 12 Years of Age entered by the Twentieth
Judicial Circuit Court in Charlotte County, Florida in case number
1
Respondent submits that the Petition “reflects prison
officials received it for mailing on September 20, 2016.” (Doc.
#13 at 6). Instead, the Petition was stamped received and docketed
by the clerk on September 20, 2016. (See Doc. #1). Respondent
correctly notes that the Court applies the “mailbox rule” to habeas
petitions and considers a petition filed on the date the prisoner
“delivers the [petition] to prison authorities for mailing.”
Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999)
(citing Houston v. Lack, 487 U.S. 266, 275 (1988)).
Here the
Petition was date-stamped as received by prison officials on
September 13, 2016. (Doc. #1-3). Consequently, the Court deems
the Petition as filed on this date, not September 20, 2016.
2009-CF-1661.
(Id. at 1-2).
The Court ordered Respondent, the
Secretary of the Florida Department of Corrections, to show cause
why the relief sought in the Petition should not be granted (Doc.
#6).
Respondent filed a Limited Response (Doc. #13) asserting
that the Petition must be dismissed as time-barred because it was
filed beyond the one-year period of limitations set forth in 28
U.S.C. § 2244(d)(1)(A).
Petitioner elected not to file a reply
despite being afforded an extension of time to file a reply.
Doc. #18).
(See
Based upon a careful review of the pleadings and
record, the Court finds that the Petition is subject to dismissal
a time-barred.
I.
Procedural History
On May 19, 2010, the State filed an Amended Information
charging Petitioner with Lewd and Lascivious Molestation on a
Person Less than 12 Years of Age. (Ex. 1 at 41). 2
After a jury
trial, Petitioner was found guilty as charged; and, on January 10,
2012 was sentenced to life in prison.
the
Second
District
Court
conviction and sentence.
of
(Ex. 3).
Appeal
(Ex. 7).
On May 8, 2013,
affirmed
Petitioner’s
Petitioner did not file a
petition for writ of certiorari with the United States Supreme
Court.
2
The Court will refer to the paper exhibits
Respondent on August 25, 2017 (Doc. #16) as “Ex._.”
- 2 -
filed
by
Petitioner
initially
filed
a
motion
for
post-conviction
relief pursuant to Rule 3.850 on March 19, 2014, but the motion
was stricken by the court because it failed “to include a proper
oath.”
(Ex. 13 at v).
Subsequently, on April 3, 2014, Petitioner
filed an Amended Rule 3.850 Motion for postconviction relief.
(Ex.
8).
After
an
evidentiary
postconviction denied the motion.
hearing,
(Ex. 10).
(Ex.
9),
the
The state appellate
court per curiam affirmed the denial of Petitioner’s Amended Rule
3.850 Motion (Ex. 15), and mandate issued on May 5, 2016 in case
no. 2D14-4800.
(Ex. 16).
As noted, Petitioner constructively
filed his Petition in this Court on September 13, 2016.
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:
(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
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United States is removed, if the applicant was
prevented from filing by such State action;
(C)
(D)
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
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)
Petitioner timely filed a direct appeal as provided by Florida
Rule of Appellate Procedure 9.140 (providing a defendant in a
criminal case with 30 days to file a notice of appeal), which was
denied by the State appellate court on May 8, 2013.
Thus,
Petitioner’s conviction and sentence became final on Tuesday,
August 6, 2013, ninety days after the State court’s entry of its
denial since Petitioner did not petition for a writ of certiorari.
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012)(where petitioner
elects not to seek direct review by the Supreme Court his judgment
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is not considered final until the time for seeking such review
expires); Rules of the Supreme Court of the United States, R. 13(3)
(90-day period commences upon the date of entry of order not
mandate).
Consequently, the federal limitations period commenced on
August 7, 2013, and expired one year later on Thursday, August 7,
2014, absent tolling.
San Martin v. McNeil, 633 F.3d 1257, 1266
(11th Cir. 2011) (applying Fed. R. Civ. P. 6(a)(1) in computing
AEDPA’s one-year limitation period to begin to run from the day
after the day of the event that triggers the period); 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)).
The one-year AEDPA clock is “tolled during times in which a
‘properly filed’ application for state post-conviction relief is
‘pending.’”
Green v. Sec’y, Dep’t of Corr., 877 F.3d 1244, 1247
(11th
2017)(citations
Cir.
omitted);
see
also
28
U.S.C.
§
2244(d)(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.”).
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Petitioner’s initial Rule 3.850 motion that was stricken by
the post-conviction court due to its failure to contain a proper
oath is not a “properly filed” motion; and, thus does not act to
toll the federal limitations period.
Florida law requires that a
Rule 3.850 motion be signed by the defendant himself and contain
a notarized or unnotarized oath.
See Fla. R. Crim. P. 3.987(1).
The Eleventh Circuit has “held that a Rule 3.850 motion that did
not contain the written oath required by Florida law was not
‘properly filed’
under §
2244(d)(2) and,
AEDPA's one-year limitations period.”
thus,
did
not
toll
Jones v. Sec’y Fla. Dep’t
of Corr., 499 F. App’x 945, 950 (11th Cir. 2012)(citing Hurley v.
Moore, 233 F.3d 1295, 1297–98 (11th Cir. 2000)). Therefore, 239
days elapsed on AEDPA’s clock before Petitioner “properly filed”
filed a postconviction motion, his Amended Rule 3.850 Motion (Ex.
8), which was delivered to correctional officials for mailing on
April 3, 2014.
The motion remained pending until May 5, 2016,
when mandate issued on the appeal of the denial of the motion (Ex.
16).
“In Florida, a state post-conviction motion is pending until
the appropriate appellate court issues the mandate for its order
affirming a state trial court’s denial of the motion.”
Woulard
v. Sec'y, Dep't of Corr., 707 F. App’x 631, 633 (11th Cir. 2017).
Because Petitioner filed no other State post-conviction motions,
he had 126 days, or until Thursday, September 8, 2016 to file a
timely Petition.
Thus, his Petition constructively filed on
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September 13, 2016 when it was delivered to correctional officials
for mailing was filed five (5) days after the federal limitations
period had expired and is untimely.
C. Petitioner is not entitled to equitable tolling
The Supreme Court has recognized that the period specified in
28 U.S.C. § 2244 “is a statute of limitations, not a jurisdictional
bar,” and thus, a petitioner may be entitled to “equitable tolling
in an appropriate case.”
Cole v. Warden, Georgia State Prison,
768 F.3d 1150, 1157 (11th Cir. 2014) (citing Holland v. Florida,
560 U.S. 631, 645 (2010)).
To be entitled to equitable tolling a
petitioner must show that “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.”
649(internal
quotation
marks
omitted).
Holland, 560 U.S. at
The
assessment
of
equitable tolling is made “on a case-by-case” basis, considering
“specific circumstances” and “decisions made in similar cases for
guidance.”
2012).
Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir.
Because equitable tolling is an extraordinary remedy, it
is “limited to rare and exceptional circumstances and typically
applied sparingly.”
Cadet v. Fla. Dep't of Corr., 742 F.3d 473,
477 (11th Cir. 2014) (internal quotation marks omitted).
Petitioner fails to address the limitations period in his
Petition despite the form petition advising a petitioner to address
why the one-year limitations period does not bar their petition.
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(Doc. #1 at 24, ¶ 18).
Respondent filed a Limited Response on
August 10, 2017 seeking dismissal of the Petition as time-barred
(Doc. #13), and this Court granted Petitioner an extension of time
until February 26, 2018 to file a reply.
(See Doc. #18).
As of
the date of this Order Petitioner has not filed a reply and the
Court
independently
finds
no
reason
in
the
record
to
excuse
Petitioner from the time bar.
Based on the foregoing, the Court concludes that Petitioner
is not entitled to statutory or equitable tolling.
As a result,
the Petition is dismissed as time-barred pursuant to 28 U.S.C. §
2244(d).
III. 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, a 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
- 8 -
(2003) (citations omitted).
Petitioner has not made the requisite
showing in these circumstances and is not entitled to a certificate
of appealability.
Because he is not entitled to a COA, he is not
permitted to proceed in forma pauperis.
Accordingly, it is hereby
ORDERED:
1.
The Petition (Doc. #1) is DISMISSED WITH PREJUDICE as
time-barred.
2.
Petitioner is DENIED a Certificate of Appealability.
To
the extent Petitioner wishes to appeal and cannot afford the filing
fee, he must file his application to proceed in forma pauperis on
appeal to the United States Court of Appeals for the Eleventh
Circuit.
3.
The Clerk of the Court is directed to enter judgment
accordingly, terminate any pending motions, and close this case.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2019.
SA: FTMP-1
Copies:
Counsel of Record
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14th
day
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