Blanks v. 20th Judicial Circuit Court, Lee County, FL

Filing 9

ORDER OF DISMISSAL dismissing 5 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 6/6/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MITCHELL M. BLANKS,
Petitioner,
v.

Case No: 2:17-cv-247-FtM-99CM

20TH JUDICIAL CIRCUIT COURT,
LEE COUNTY, FL and D.O.C.,
Respondents.
ORDER OF DISMISSAL
Petitioner initiated this case on May 8, 2017 by filing a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Doc. 1).

Petitioner filed an amended petition on May 19, 2017

(Doc. 5).

Petitioner challenges his convictions and sentences

entered by the Twentieth Judicial Circuit Court in Lee County,
Florida for burglary of an occupied dwelling; petit theft; burglary
with an assault of battery; robbery; grand theft; burglary with a
battery; robbery with a weapon and aggravated battery.
After

conducting

a

preliminary

review

of

the

Id. at 1.
amended

petition 1, the Court concluded that the petition was untimely on
its face.

1

Accordingly, pursuant to Day v. McDonough, 547 U.S.

Rule 4 of the Rules Governing Section 2254 Cases, requires
both a preliminary review of the application for the writ of habeas
corpus and a summary dismissal “[i]f it plainly appears from the
face of the [application] and any exhibits annexed to it that the
[applicant] is not entitled to relief in the district court[.]”

198, 209 (2006), Petitioner was directed to show cause why the
petition should not be dismissed (Doc. 7).

Petitioner filed a

response asserting that each of his claims is exhausted, but offers
no argument regarding the petition’s timelines (Doc. 8).
Because a review of the pleadings show that Petitioner’s
habeas petition was untimely filed, the petition will be dismissed
with prejudice.
I.

Background

Petitioner was convicted of several burglary-related counts
in 1992 (Doc. 5 at 1; Doc. 1-1 at 13, 22).
life in prison (Doc. 1-1 at 13).

He was sentenced to

It is unclear from the pleadings

before this Court whether Petitioner filed a direct appeal of his
convictions and sentences.

However, on March 14, 1995, he filed

a motion for post-conviction relief pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure (“Rule 3.850 motion”) (Doc. 5
at 7).

In that motion, Petitioner asserted that “the departure

sentences are invalid which resulted in defendant’s sentences
being illegal.”

Id.

On June 7, 1995, the post-conviction court

denied the Rule 3.850 motion.

Id.

Petitioner filed an appeal,

and Florida’s Second District Court of Appeal reversed the order
and remanded the case back to the post-conviction court to attach
relevant portions of the record demonstrating that Petitioner was
not entitled to any relief or to conduct an evidentiary hearing to
determine the merits of his claims.

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Blanks v. State, 662 So. 2d

730 (Fla. 2d DCA 1995).

On January 9, 1996, the post-conviction

court again denied Petitioner’s Rule 3.850 motion (Doc. 5 at 7).
Petitioner did not appeal.
On August 1, 2007, Petitioner filed a motion to correct an
illegal sentence pursuant to Rule 3.800(a) of the Florida Rules of
Criminal Procedure (Doc. 5 at 7).
was denied.

Id.

On October 10, 2007, the motion

Petitioner filed an appeal, and Florida’s Second

District Court of Appeal affirmed.
622 (Fla. 2d DCA 2008) (table).

Blanks v. State, 988 So. 2d

Petitioner filed a second Rule

3.800(a) motion on January 9, 2009 (Doc. 5 at 8).

The motion was

denied, and Florida’s Second District Court of Appeal affirmed.
Blanks v. State, 19 So. 3d 989 (Fla. 2d DCA 2009) (table).
On February 20, 2012, Petitioner filed a second Rule 3.850
motion which was denied by the post-conviction court as successive
(Doc. 5 at 8-9).

Petitioner filed another Rule 3.850 motion on

March 12, 2012, which was again denied as successive.

Id.

Petitioner signed his original 28 U.S.C. § 2254 petition on
May 3, 2017 (Doc. 1 at 5).
II.

Analysis

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).

Additionally, under § 2244(d)(2) “[t]he

time during which a properly filed application for State postconviction 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.”
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).

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Because Petitioner’s conviction became final before the AEDPA
was enacted, he had one year after its enactment, or through April
24, 1997, to file a petition for writ of habeas corpus, unless
tolling principals apply.

See Wilcox v. Fla. Dep’t of Corr., 158

F.3d 1209, 1210 (11th Cir. 1998).

Petitioner’s limitations period

expired on April 24, 1997 because he did not file any tolling postconviction pleadings until August 1, 2007 — more than ten years
after the limitations period had already expired (Doc. 5 at 2).
See Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th Cir. 2001) (“[A]
properly and timely filed petition in state court only tolls the
time remaining within the federal limitation period.”).
The foregoing was explained to Petitioner in this Court’s
order to show cause (Doc. 7). Petitioner was instructed that to
avoid a dismissal of this case, he was required to show:

(1) that

the Court’s determination of untimeliness is incorrect; (2) that
he is entitled to a delayed start of the limitation period under
28 U.S.C. § 2244(d)(1); (3) that he is entitled to equitable
tolling; or (4) that he is actually innocent under the standards
set forth in McQuiggin v. Perkins, 133 S. Ct. 1924, 1936 (2013).
Id.

Petitioner has not complied, and as a result, this case is

dismissed as untimely.

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III. Certificate of Appealability 2
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.
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:

2

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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1.

The amended petition for writ of habeas corpus filed by

Mitchell M. Blanks is DISMISSED WITH PREJUDICE as time-barred.
2.

Petitioner is DENIED a certificate of appealability.

3.

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 June, 2017.

SA: OrlP-4
Copies: Mitchell M. Blanks

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6th

day