Tassinari v. Florida Department of Corrections et al

Filing 18

OPINION AND ORDER dismissing 1 Petition for writ of habeas corpus as untimely. A certificate of appealability is denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 11/18/2020. (RKR)

Case 2:17-cv-00287-JES-MRM Document 18 Filed 11/18/20 Page 1 of 15 PageID 678

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN E. TASSINARI,
Petitioner,
v.

Case No:

2:17-cv-287-FtM-29MRM

FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents.
OPINION AND ORDER
This

matter

comes

before

the

Court

on

Petitioner

Brian

Tassinari’s Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254 by a Person in State Custody (Doc. #1), filed on May 25, 2017.
Petitioner

challenges

his

February

2012

probation

violation

conviction and sentence in the Circuit Court of the Twentieth
Judicial Circuit in and for Collier County, Florida.

The Court

ordered the Secretary of the Florida Department of Corrections to
show cause why the relief sought in the Petition should not be
granted.

(Doc. #8).

On October 30, 2017, Respondent filed a

Limited Response, asserting that the Petition should be dismissed
as time barred because it was filed beyond the one-year limitation
period in 28 U.S.C. § 2244(d).

(Doc. #9).

The next day Respondent

filed an Appendix (Doc. #10) containing the state court record.
Petitioner filed a Reply (Doc. #12) and Exhibits (Doc. #13) on
December 11, 2017.

Case 2:17-cv-00287-JES-MRM Document 18 Filed 11/18/20 Page 2 of 15 PageID 679

Based on a careful review of the pleadings and record, the
Petition is dismissed as time barred.
I.

Procedural History

The relevant procedural history is summarized below:
A. Original Conviction and Sentence
On July 5, 2005, in Case No. 05-417-CF, the State Attorney
charged Petitioner by Information with two counts of lewd and
lascivious exhibition, in violation of Fla. Stat. § 800.04(7)(b).
(Doc. #10-1, pp. 1-3).

On March 6, 2006, Petitioner pled no

contest to both counts, was adjudicated guilty, and was sentenced
to thirty days in the Collier County Jail followed by a five-year
term of sex-offender probation.

(Id. at 3-4).

The Judgment noted

that the probation “may be transferred to Massachusetts.”
at 3).

(Id.

Petitioner did not file a notice of appeal, and supervision

of his probation was transferred to Massachusetts.

(Doc. #12, p.

3).
B. June 2009 Violation of Probation Conviction
On August 21, 2006, Petitioner was charged in Florida with
violating his probation while in Massachusetts.
16).

On

probation

June

2,

2009,

violations,

his

Petitioner
probation

admitted
was

(Doc. #10-1, p.
the

two

alleged

revoked,

and

he

was

sentenced to concurrent six-year terms of sex-offender probation,
with

supervision

to

be

in

Massachusetts.

- 2 -

(Id.

at

17-18).

Case 2:17-cv-00287-JES-MRM Document 18 Filed 11/18/20 Page 3 of 15 PageID 680

Petitioner asserts that on July 7, 2009, his probation supervision
was formally accepted by Massachusetts.

(Doc. #12, p. 4.)

On May 27, 2011, Petitioner filed a Motion For Post-Conviction
Relief (Id. at 21-27) and a Memorandum of Law (Id. at 28-31) in
state court challenging the June 2, 2009 conviction based upon
ineffective assistance of counsel.
Motion

was

denied

by

the

trial

On January 12, 2012, the

court

conclusively refuted by the record.

because

the

(Id. at 32-34.)

claim

was

Petitioner

appealed the denial, and on November 21, 2012, the Second District
Court of Appeal per curiam affirmed.

(Id. at 64-65).

C. February 2012 Violation of Probation Conviction
On or about October 31, 2011, Petitioner was charged in
Florida with violating two conditions of his probation while in
Massachusetts.
Florida.

(Doc. #10-1, p. 66.)

(Doc. #12, pp. 8-9.)

Petitioner was returned to

On February 14, 2012, Petitioner

was found to be in violation of his probation, his probation was
revoked, and he was sentenced to three years in prison, followed
by five years of sex offender probation.

The Judgment indicated

the probation could not be transferred to any other state, but
must be served in Florida. (Doc. #10-1, pp. 66-68).
Petitioner appealed the conviction and sentence, and on March
1, 2013, the Second District Court of Appeal affirmed per curiam.
(Id. at 84); Tassinari v. State, 2D12-1367, 112 So. 3d 108 (Fla.
2d DCA 2013) (Table).

No further appeal was filed.

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On October 29, 2013, Petitioner filed a Motion to Award Credit
For Time Served Pursuant to FRCrP 3.800(a), requesting credit for
certain time served in a county jail in Massachusetts.
86-89).
(Id. at

(Id. at

Petitioner withdrew the motion on November 25, 2013.
9.)

On January 8, 2014, Petitioner filed a Motion For PostConviction Relief and a Memorandum of Law challenging his February
14, 2012 sentence based upon ineffective assistance of counsel for
failure to obtain certain credits for time served in jail in
Massachusetts and in Lee County, Florida.

(Id. at 106-116).

On

August 28, 2014, the Post-Conviction Court granted Petitioner’s
motion, awarded 49 days additional jail credit, and directed the
filing of an amended sentence nunc pro tunc to February 14, 2012,
to reflect the additional 49 days jail credit.

(Id. at 117-120).

An amended Judgment was filed on September 9, 2014.

(Id. at 119).

On February 11, 2016, Petitioner filed a State Petition for
Writ of Habeas Corpus challenging his February 14, 2012 conviction.
(Doc. #10-2, pp. 6-55).

On February 22, 2016, the Petition was

dismissed as improperly filed and untimely.
On

March

Conviction

16,

Relief

2016,

Petitioner

pursuant

to

filed

Rule

- 4 -

a

3.850

challenging the February 14, 2012 conviction.
this motion was denied as untimely.

(Id. at 100-101).
Motion
(Id.

at

For

Post-

103-148)

On August 28, 2016,

(Id. at 150-153).

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D. May 2015 Violation of Probation Conviction
On March 20, 2015, Petitioner was again charged with violating
his probation.

(Id. at 1-2).

On May 27, 2015 Petitioner admitted

the violations, was sentenced to time-served, and his probation12was transferred to Massachusetts.
II.

(Doc. #10-2, pp. 3-5).

Analysis

Petitioner challenges his conviction and sentence for the
February 14, 2012 violation of probation.

(Doc. #1, p. 1, ¶ 2.)

Respondent asserts that the § 2254 Motion must be dismissed because
it is barred by the one-year statute of limitations.

Petitioner

opposes the motion on the merits, and seeks to strike it as
untimely.
A. Timeliness of Respondent’s Motion
Petitioner seeks to strike the Limited Response because the
Appendix was filed one day late, making the Limited Response itself
incomplete and thus untimely.

(Doc. #12, pp. 12-17).

The motion

to strike is denied.
Respondent was ordered to respond within 120 days of June 30,
2017.

(Doc. #8).

The Limited Response was filed on October 30,

2017.

(Doc. #9).

The Appendix, which was a required component

of the Limited Response, was filed on October 31, 2017.
#10).

(Doc.

Finding no prejudice from any delay in filing, Petitioner’s

request to strike is denied.

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B. Statute of Limitations
Under 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 filing a habeas petition by a person in
custody under a state court judgment.

This statute of limitations

requires a claim-by-claim approach to determine timeliness.
v. Tucker, 704 F.3d 917, 918 (11th Cir. 2013).

Zack

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).

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.

Thus, the statute of

limitations for all claims in this case is measured from the date

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on which Petitioner’s February 14, 2012 judgment became final. 28
U.S.C. § 2244(d)(1)(A).
C. Date Judgment Became Final
Petitioner had one year from “the date on which the judgment
became final by the conclusion of direct review or the expiration
of the time for seeking such review” to file a federal habeas
corpus petition. 28 U.S.C. § 2244(d)(1)(A).

The parties dispute

the

probation

date

on

which

the

judgment became final.

February

14,

2012

violation

There are four potential dates to be

considered as the potential date the conviction became final under
§ 2244(d)(1)(A).

For the reasons set forth below, the Court

concludes that the judgment became final on May 30, 2013.
(1)

After Direct Appeal or After Post-Conviction Relief?

Petitioner contends that the judgment was not final until
July 21, 2014, when the 30 days to appeal his second motion for
post-conviction relief expired.

(Doc. #12 at 20).

Respondent

argues that the judgment became final on May 30, 2013, after the
time to seek certiorari review in the United States Supreme Court
expired.

(Doc. #9 at 5.)

The language of § 2244(d)(1)(A) establishes that Petitioner’s
position is not correct.

That statute gives a petitioner one year

from “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review” to file a federal habeas corpus petition. 28 U.S.C. §

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Case 2:17-cv-00287-JES-MRM Document 18 Filed 11/18/20 Page 8 of 15 PageID 685

2244(d)(1)(A) (emphasis added).

Petitioner’s attempt to include

two post-conviction motions is clearly contrary to the direction
of the statute.
On direct review, on March 1, 2013, the Second District Court
of Appeal affirmed Petitioner’s probation violation conviction and
sentence without explanation in a per curiam decision.

Tassinari

v. State, 2D12-1367, 112 So. 3d 108 (Fla. 2d DCA 2013) (Table).
The Supreme Court of Florida was jurisdictionally barred from
reviewing that “unelaborated per curiam decision[ ].”

Jackson v.

State, 926 So. 2d 1262, 1263, 1265 (Fla. 2006). Petitioner could,
however, have petitioned the United States Supreme Court within 90
days following that affirmance, and is therefore afforded a 90day grace period before commencement of the limitations period.
Bates v. Sec'y, Dep't of Corr., 964 F.3d 1326, 1329 (11th Cir.
2020); Chavers v. Sec'y, Fla. Dep't of Corr., 468 F.3d 1273, 1275–
76 (11th Cir. 2006).

Thus, under the circumstances of this case,

the violation of probation judgment became final for AEDPA purposes
upon expiration of the 90-day period for seeking certiorari review
of the March 1, 2013 state appellate court decision.
two

dates

discussed

below

otherwise

supersede,

Unless the
Petitioner’s

judgment became final on May 30, 2013.
(2) Amended Judgment
An amended Judgment was filed on September 9, 2014, granting
Petitioner credit for an additional 49 days served in jail.

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Presuming Petitioner had 30 days to appeal, the amended Judgment
became final on October 9, 2014.

The question becomes whether the

date of the amended Judgment (September 9, 2014), or thirty days
thereafter (October 14, 2014), became the date when the probation
violation conviction became final for purposes of § 2244(d)(1)(A).
Entry of a “new judgment” may extend the time to file a §
2254 petition.

In a different context, the Eleventh Circuit has

stated that “where a state court corrects a legal error in an
initial sentence, and imposes a new sentence that is substantively
different

than

judgment.”

the

one

originally

imposed,

there

is

a

new

Patterson v. Sec’y. Florida Dep’t of Corr., 812 F.3d

885, 891 (11th Cir. 2016).

Here, the amended Judgment did not

“impose[] a new sentence that is substantively different that the
one originally imposed.”

Id.

Indeed, the length of the sentence

and all other terms remained the same.

The only thing changed was

the number of days credit Petitioner was to receive.
a

“new

judgment”

limitations.

which

commenced

the

2

2244(d)

This was not
statute

of

Additionally, the amendment was ordered to be nunc

pro tunc to the February 14, 2012 conviction, and therefore the
date of his sentence and conviction remained February 14, 2012.
See Osborne v Sec’y. Fla. Dep’t Corr., 968 F.3d 1261, 1266-67
(11th Cir. 2020).

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(3)

Transfer of Probation to Massachusetts

Petitioner also asserts that his sentence was substantially
modified on May 27, 2015, when he was allowed to serve the term of
probation in Massachusetts.

(Doc. #12, pp. 22-25.)

Respondent

argues that the May 27, 2015 order transferring Petitioner’s
probation to Massachusetts did not constitute a new judgment
because it did not make a substantive change to the sentence. (Doc.
# 9, pp. 7-8.)
Transferring Petitioner’s supervision did not substantially
alter

Petitioner’s

supervision

for

the

sentence
same

since

period

Petitioner
of

time

conditions as the original judgment.
66.

and

was

still

under

the

under
same

Osborne, 968 F.3d at 1265-

While supervision in Massachusetts was undoubtedly important

to Petitioner, it was not a change which created a new judgment
within the meaning of § 2244(d)(2).

For example, in Patterson,

the Court concluded that the state court's grant of a Florida Rule
3.800 motion to remove a sentencing requirement that the defendant
undergo chemical castration did not constitute a new judgment for
purposes of § 2244. Patterson v. Sec'y, Fla. Dep't of Corr., 849
F.3d 1321, 1325-28 (11th Cir. 2017) (en banc).

The change here

was clearly less significant than in Patterson.
D. Date Time Period Begins to Run
The AEDPA’s one-year limitation period runs from the day after
the date of the final judgment.

San Martin v. McNeil, 633 F.3d

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Case 2:17-cv-00287-JES-MRM Document 18 Filed 11/18/20 Page 11 of 15 PageID 688

1257, 1266 (11th Cir. 2011) (applying Fed. R. Civ. P. 6(a)(1) in
computing AEDPA’s one-year limitation period 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)).
Accordingly, the limitations period in this case began on May 31,
2013, and would expire on May 31, 2014, absent statutory or
equitable tolling.
E. Statutory Tolling Periods
Statutory tolling allows Petitioner to toll the running of
the limitations period while properly filed state post-conviction
actions are pending. 28 U.S.C. § 2244(d)(2).

The Eleventh Circuit

recognizes the following Florida proceedings as applications for
state

post-conviction

or

other

collateral

review

under

§

2244(d)(2): (1) a motion for state post-conviction relief under
Fla. R. 3.850; (2) a motion to correct an illegal sentence filed
under Fla. R. 3.800(a); (3) a motion for rehearing on the denial
of a motion to correct an illegal sentence; and (4) any appeals
filed in state court from the denial of these motions. Hall v.
Sec'y Dep't of Corr., 921 F.3d 983, 987 (11th Cir. 2019).

An

application for state post-conviction relief that is dismissed as

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untimely is not “properly filed” and, thus, does not toll the
federal statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408,
417 (2005).
The Court begins with the May 31, 2013 beginning date to
determine when the 365 day period expired after statutory tolling
is considered.

Petitioner filed a Rule 3.800 post-conviction

motion on October 29, 2013, so 151 days had elapsed since May 31,
2013.

The statute of limitations was tolled until Petitioner

withdrew the motion on November 25, 2013.
On

January

8,

2014,

Petitioner

filed

a

motion

alleging

ineffective assistance of counsel in connection with credit for
time

served.

Therefore

another

cumulative total of 194 days.

43

days

had

elapsed,

for

a

This Motion tolled the statute of

limitations until August 29, 2014.
The remaining 171 days of the year period expired on February
15, 2015.

Although Petitioner thereafter filed a Habeas Corpus

petition on February 11, 2016, any collateral pleadings filed after
the expiration of the one-year period does not toll the ADEPA
statute of limitations.

See Tinker v. Moore, 255 F.3d 1331, 1333

(11th Cir. 2001); Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th
Cir. 2012).
The Petition was filed on May 25, 2017, over two years after
the statute of limitations had expired.
Petition is untimely.

- 12 -

For that reason, the

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D. Equitable Tolling
The Supreme Court has recognized that a petitioner may be
entitled to “equitable tolling in an appropriate case” under 28
U.S.C. § 2244.

Cole v. Warden, Georgia State Prison, 768 F.3d

1150, 1157 (11th Cir. 2014) (citing Holland v. Florida, 560 U.S.
631, 645 (2010)).
must

show

that

To be entitled to equitable tolling a petitioner
“(1)

that

he

has

been

pursuing

his

rights

diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.”

Id. at 649.

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).
rare

Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir.

Equitable tolling “is an extraordinary remedy limited to

and

exceptional

circumstances”

and

typically

should

be

“applied sparingly.” Cadet v. Fla. Dep't of Corr., 853 F.3d 1216,
1221 (11th Cir. 2017) (quotations omitted).

“It is well settled

that ‘[t]he burden of proving circumstances that justify the
application of the equitable tolling doctrine rests squarely on
the petitioner.’”

Lugo v. Sec'y, Fla. Dep’t of Corr., 750 F.3d

1198, 1209 (11th Cir. 2014)(citation omitted).

The petitioner

must show a causal connection between the alleged extraordinary
circumstances and his untimely filing of the § 2254 petition. San
Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).
Read

liberally,

the

only

possible

- 13 -

basis

for

equitable

Case 2:17-cv-00287-JES-MRM Document 18 Filed 11/18/20 Page 14 of 15 PageID 691

estoppel discussed in Petitioner’s Reply (Doc. #12) is his prior
filing of a § 2254 petition.

Petitioner asserts that he originally

filed his § 2254 petition on October 28, 2016 in Case No. 2:16cv-802, but that it was erroneously dismissed for failing to pay
a filing fee or file an application to proceed as a pauper.
#12, p. 22).

(Doc.

Petitioner did file a § 2254 petition on October 28,

2016, and it was dismissed without prejudice on December 1, 2016.
See Case No. 2:16-cv-802.

While Petitioner now asserts that he

had paid a filing fee, he did not make that assertion in the prior
case, did not seek reconsideration, and did not take any steps to
resolve that purported issue in that case.

Instead, Petitioner

waited almost six months to file a virtually identical § 2254
petition.

In any event, the filing of the petition on October 28,

2016 was still untimely by about 18 months.
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 establish 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

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Case 2:17-cv-00287-JES-MRM Document 18 Filed 11/18/20 Page 15 of 15 PageID 692

(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) (citations omitted).

Petitioner has not made the requisite

showing in these circumstances and may not have a certificate of
appealability.
Accordingly, it is hereby
ORDERED:
Petitioner’s Petition for Writ of Habeas Corpus under 28
U.S.C. 2254 by a Person in State Custody (Doc. #1) is DISMISSED as
untimely.

The Clerk shall enter judgment accordingly, terminate

any pending motions and deadlines, and close the case.
DONE and ORDERED at Fort Myers, Florida, this
of November 2020.

FTMP-2
Copies:
Counsel of Record

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18th

day