Cazun v. Florida Attorney General et al

Filing 6

ORDER OF DISMISSAL dismissing 1 Petition for writ of habeas corpus with prejudice as time-barred. Alternatively, for failure to prosecute. Petitioner is denied a certificate of appealability. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 8/1/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARCOS ORTEGA-CAZUN,
Petitioner,
v.

Case No:

2:17-cv-293-FtM-99CM

FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
Respondents.
ORDER OF DISMISSAL
On

May

30,

2017,

a

prisoner

(“Petitioner”),

Petitioner
of

the

Marcos
Florida

Ortega-Cazun
Department

of

Corrections, applied under 28 U.S.C. § 2254 for the writ of habeas
corpus (Doc. 1).

Petitioner, proceeding pro se, challenged the

validity

state

of

his

convictions

for

lewd

and

lascivious

molestation and attempted lewd and lascivious molestation.
at 1.

Id.

Rule 4 of the Rules Governing Section 2254 Cases, requires

the district court to conduct both a preliminary review of the
application for the writ of habeas corpus and summarily dismiss
the

petition

“[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[.]”

For the

reasons given in this Order, Petitioner’s 28 U.S.C. § 2254 petition
is DISMISSED.

Analysis
The Court’s preliminary review of Petitioner’s amended § 2254
petition indicated that the application was untimely under the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). 1 See Day
v. McDonough, 547 U.S. 198, 209 (2006) (“[W]e hold that district
courts are permitted . . . to consider, sua sponte, the timeliness
of a state prisoner’s habeas petition.”); Jackson v. Sec’y, Dep’t
of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (holding that a
district court possesses discretion to sua sponte raise the issue
of the timeliness of a Section 2254 application for habeas corpus).
Specifically,

the

Court

concluded

that

Petitioner’s

judgment

became final, and started the one-year AEDPA limitations period,
no later than March 25, 2008 — ninety days after Petitioner
voluntarily dismissed his direct appeal in state court (Doc. 5 at
3) (recognizing that courts both within out outside the Eleventh
Circuit have reached different conclusions on whether a petitioner
who voluntarily dismissed his appeal is entitled to the 90-day

1

The AEDPA creates a one-year limitation period for a § 2254
application for the writ of habeas corpus.
Specifically, 28
U.S.C. § 2244(d)(1)(A) states that “[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. 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[.]”
Additionally, under § 2244(d)(2) “[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.”
- 2 -

period to petition for a writ of certiorari in the Supreme Court
of the United States).

Petitioner did not list any tolling post-

conviction motions in state court in his petition.

Nor did he

assert entitlement to a later starting date for the limitations
period or to statutory or equitable tolling.

In fact, when asked

to address the timeliness of his petition on page 14 of the
petition, Petitioner did not do so.

Rather, he asserted that the

“the timeliness statute of the AEDPA is a total ruse.

It’s

designed to bar state prisoners from habeas corpus litigation under
a pretext, which is fundamentally unfair.” (Doc. 1 at 14-15).
As a result of the Court’s preliminary review, to avoid
dismissal of his petition, Petitioner was ordered to show: (1)
that the Court’s determination of untimeliness was incorrect; (2)
that he was entitled to a delayed start of the limitation under 28
U.S.C. § 2244(d)(1); (3) that he was entitled to statutory or
equitable tolling; or (4) that he is actually innocent (Doc. 5 at
4).

Petitioner was cautioned that his failure to respond would

result in the dismissal of his petition without further notice
(Doc. 5). 2
As of the date on this Order, Petitioner has neither responded
to the Court’s order to show cause, nor has he asked for an

2

Although this Court may raise timeliness sua sponte, “before
acting on its own initiative [to dismiss a § 2254 petition], a
court must accord the parties fair notice and an opportunity to
present their positions.” Day, 547 U.S. at 210.
- 3 -

extension of time to do so.

Accordingly, for the reasons set

forth in this Order and in the June 12, 2017 Order to Show Cause
(Doc. 5), the petition is dismissed as untimely under the AEDPA.
Alternatively, the petition is dismissed because of Petitioner’s
failure to respond to the Court’s Order to Show Cause.

See Link

v. Wabash R. Co., 370 U.S. 626, 630 (1962) (“The authority of a
federal trial court to dismiss a plaintiff’s action with prejudice
because of his failure to prosecute cannot seriously be doubted.”).
Certificate of Appealability 3
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

3

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.
- 4 -

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 petition for writ of habeas corpus filed by Marcos

Ortega-Cazun

is

DISMISSED

WITH

PREJUDICE

as

time-barred.

Alternatively, the petition is dismissed for failure to prosecute.
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 August, 2017.

SA: OrlP-4
Copies: All Parties of Record

- 5 -

1st

day