Martinez v. Secretary, Department of Corrections et al (Collier County)
Filing
22
OPINION AND ORDER dismissing with prejudice 1 Petition for Writ of Habeas Corpus as time barred. The Clerk is directed to enter judgment, terminate all motions and deadlines, and close the case. A certificate of appealability is denied. Signed by Judge John E. Steele on 5/2/2022. (RKR)
Case 2:18-cv-00652-JES-MRM Document 22 Filed 05/02/22 Page 1 of 11 PageID 1419
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOE MARTINEZ,
Petitioner,
v.
Case No. 2:18-cv-652-JES-MRM
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, and ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents.
OPINION AND ORDER
This case is before the Court on a pro se 28 U.S.C. § 2254
petition
for
writ
(“Petitioner”),
Corrections.
a
of
habeas
prisoner
(Doc. 1).
corpus
of
the
filed
by
Florida
Joe
Martinez
Department
of
In compliance with this Court’s order
(Doc. 13), the Secretary of the Florida Department of Corrections
(“Respondent”), filed a response to the petition, asking the Court
to dismiss it as untimely filed.
reply.
(Doc. 15).
Petitioner filed a
(Doc. 19).
After carefully reviewing the parties’ briefs and the case
record, the Court concludes that it cannot reach the merits of
Petitioner’s claims because the petition must be dismissed with
prejudice as untimely filed.
I.
Background and Procedural History
On December 19, 2011, a jury found Petitioner guilty of
aggravated battery and resisting an officer with violence. (Doc.
Case 2:18-cv-00652-JES-MRM Document 22 Filed 05/02/22 Page 2 of 11 PageID 1420
15-2
at
379).
On
the
aggravated
battery
charge,
the
court
sentenced Petitioner as a habitual felony offender to thirty years
in prison with a fifteen year minimum mandatory term as a prison
releasee reoffender.
On the resisting charge, the court sentenced
Petitioner as a habitual felony offender to a concurrent term of
five years in prison with a five-year minimum mandatory term as a
prison releasee reoffender.
(Id. at 407–18).
On June 7, 2013,
Florida’s Second District Court of Appeal (“Second DCA”) affirmed
the convictions and sentences without a written opinion.
(Id. at
488); Martinez v. State, 141 So. 3d 565 (Fla. 2d DCA 2013) (per
curiam).
On June 29, 2014, Petitioner filed a motion for postconviction
relief under Rule 3.850 of the Florida Rules of Criminal Procedure
(“Rule 3.850 Motion”).
93).
(Doc. 15-2 at 492–509; Doc. 15-4 at 190–
The postconviction court summarily denied all claims (Doc.
15-4 at 195–310), and the Second DCA affirmed without a written
opinion on January 3, 2018.
(Doc. 15-5 at 22); Martinez v. State,
241 So. 3d 141 (Fla. 2d DCA 2018) (per curiam).
mandate issued on March 23, 2018.
The appellate
(Doc. 15-5 at 41).
On March 15, 2016, Petitioner filed a motion to correct an
illegal sentence under Rule 3.800(a) of the Florida Rules of
Criminal Procedure.
(Doc. 15-5 at 43).
In the motion, Petitioner
asserted that his five-year sentence as a habitual felony offender
with a five-year minimum mandatory as a prison releasee reoffender
2
Case 2:18-cv-00652-JES-MRM Document 22 Filed 05/02/22 Page 3 of 11 PageID 1421
on the resisting charge was illegal.
(Id. at 44).
On July 31,
2017, the postconviction court granted the motion as follows:
The Habitual Felony Offender designation shall
be stricken from count three. The Clerk shall
prepare an Amended Judgment and Sentence form
that removes the Habitual Felony Offender
designation from count three.
No other
amendments are directed to be made to the
judgment and sentence forms. The Clerk shall
provide certified copies of the Amended
Judgment and Sentence forms to the Florida
Department of Corrections.
(Doc. 15-5 at 141).
An amended judgment was entered on August 7,
2017, but dated as ordered on January 26, 2012, the date of the
original judgment. (Id. at 190–97).
On July 26, 2019, Petitioner filed another motion under Rule
3.850 of the Florida Rules of Criminal Procedure (“Second Rule
3.850 Motion”).
(Doc. 15-5 at 201–06).
denied the motion as untimely.
The postconviction court
(Id. at 212–14).
The Second DCA
affirmed on June 24, 2020. (Id. at 286); Martinez v. State, 299
So. 3d 1043 (Fla. 2d DCA June 24, 2020) (per curiam).
Petitioner
gave
his
habeas
petition
institution for mailing on August 28, 2018.
1
to
his
correctional
(Doc. 1 at 1). 1
Under the “mailbox rule,” a pleading is considered filed by
an inmate on the date it was delivered to prison authorities for
mailing, which—absent contrary evidence—is the date it was signed.
Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
In this case, the petition was stamped as provided to Avon
Correctional Institution for mailing on August 28, 2018. (Doc. 1
at 1.)
3
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II.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides a one-year statute of limitations for habeas
corpus proceedings.
28 U.S.C. § 2244(d).
The limitations period
begins to run from the latest of four possible start dates:
(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 the 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
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 the Court’s independent review of the
record—that any statutory trigger in sections 2244(d)(1)(C)–(D)
applies.
calculated
Accordingly,
from
the
Petitioner’s
date
his
limitations
judgment
2244(d)(1)(A).
4
became
period
final.
Id.
is
§
Case 2:18-cv-00652-JES-MRM Document 22 Filed 05/02/22 Page 5 of 11 PageID 1423
A.
The petition is untimely under 28 U.S.C. § 2244(d)(A).
Florida’s Second DCA affirmed Petitioner’s convictions and
sentences on June 7, 2013.
(Doc. 15-2 at 488).
His conviction
became final ninety days later, on September 5, 2013.
See Gonzalez
v. Thaler, 565 U.S. 134, 150 (2012) (holding that a judgment
becomes “final” under section 2244(d)(1)(A) at the expiration of
time for seeking direct review); S. Ct. Rule 13.1 (providing ninety
days to petition the Supreme Court for a writ of certiorari). 2
Therefore,
Petitioner’s
AEDPA
clock
began
to
tick
on
September 6, 2013, and—as September 6, 2014 fell on a Saturday—he
had through September 8, 2014, to file his federal habeas petition.
See San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir. 2011)
(recognizing that the AEDPA limitations period begins to run on
2
Notably, the August 7, 2017 order on Petitioner’s Rule
3.800(a) Motion did not affect the finality of Petitioner’s
judgment and sentences. The only change implemented by the order
was to strike the HFO designation from Petitioner’s resisting an
officer with violence count, and Petitioner was no longer serving
that count when he filed his federal habeas petition. The order
neither imposed a new sentence, nor authorized the Florida
Department of Corrections to take any action as to Petitioner’s
sentence.
Rather, the removal of the HFO designation for the
already-served five-year sentence left Petitioner’s present
sentence unamended. Therefore, the August 7, 2017 order was not
a “new judgment” and did not restart Petitioner’s AEDPA limitations
period. See Jones v. Fla. Dep’t of Corr., No. 21-10331-E, 2021 WL
3824675 (11th Cir. April 20, 2021) (denying a certificate of
appealability to petitioner who argued that an order striking the
habitual-felony-offender designation from his first-degree murder
counts was a new judgment that restarted the AEDPA limitations
period); Patterson v. Sec'y, Fla. Dep't of Corr., 849 F.3d 1321,
1326–28 (11th Cir. 2017) (holding that order removing a judgment’s
imposition of chemical castration did not make the modification
qualify as a new judgment).
5
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day after triggering event); Downs v. McNeil, 520 F.3d 1311, 1318
(11th Cir. 2008) (“[T]he 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.”
(internal quotation marks omitted)); Fed. R. Civ. P. 6(a)(1)(A),
(C) (excluding the day of the event that triggered the need for
calculating time and noting that if the final day falls on a
Saturday, Sunday, or legal holiday, the period continues “to run
until the end of the next day that is not a Saturday, Sunday or
legal holiday”).
Petitioner did not file his habeas petition until August 28,
2018.
(Doc. 1 at 1).
Therefore, it was filed 1450 days late
unless tolling principLEs apply to render it timely.
B.
Petitioner is not entitled to statutory tolling of the
AEDPA statute of limitations.
The AEDPA statute of limitations may be tolled in certain
situations.
For example, “[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” towards the AEDPA’s one-year statute of
limitation.
28 U.S.C. § 2244(d)(2).
Petitioner filed his first Rule 3.850 Motion on July 29, 2014.
(Doc. 15-2 at 492).
This stopped the AEDPA clock with 38 days
remaining
for
Petitioner
to
file
petition.
The clock started again on March 23, 2018, when mandate
6
a
timely
28
U.S.C.
§
2254
Case 2:18-cv-00652-JES-MRM Document 22 Filed 05/02/22 Page 7 of 11 PageID 1425
issued on appeal from the denial of the motion.
41).
(Doc. 15-5 at
Absent additional tolling motions, the 28 U.S.C. § 2254
petition was due on April 30, 2018.
Petitioner had no tolling
motions pending in state court between March 23, 2018 and August
27, 2018, when he filed his petition.
Accordingly, the petition
was filed 119 days late.
Even if properly filed (a finding not made by this Court),
Petitioner’s July 26, 2019 Second Rule 3.850 Motion (Doc. 15-5 at
201) did not toll or restart the AEDPA’s one-year statute of
limitations because Petitioner’s limitations period expired on
April 30, 2018.
A state court petition or motion filed after the
expiration of the federal limitations period—as this one was—
“cannot toll that period because there is no period remaining to
be tolled.”
Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001)
(citing Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)).
And “[w]hile a properly filed application for post-conviction
relief tolls the statute of limitations, it does not reset or
restart the statute of limitations once the limitations period has
expired.”
(quotation
Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003)
marks
omitted).
Accordingly,
Petitioner
is
not
entitled to statutory tolling of the one-year AEDPA limitations
period for his Second Rule 3.850 Motion because it was filed with
no time left to toll.
C.
Petitioner is not entitled to equitable tolling of the
AEDPA statute of limitations.
7
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The AEDPA’s one-year statute of limitations may also be
equitably tolled in certain cases.
apply
if
a
petitioner
shows
First, equitable tolling may
that
he
has
pursued
his
rights
diligently, and that some “extraordinary circumstance” stood in
his way to prevent timely filing of his habeas petition.
Holland v. Florida, 560 U.S. 631, 649 (2010).
shown,
or
attempted
to
show,
the
See
Petitioner has not
requisite
diligence
or
an
“extraordinary circumstance” to support equitable tolling of the
AEDPA’s one-year statute of limitation under the rules set forth
in Holland.
Rather, he argues in his reply, without offering
support, that he has shown cause and prejudice for his failure to
exhaust these claims in state court.
(Doc. 19 at 5).
The Court,
however, cannot reach the question of whether Petitioner’s claims
were exhausted because his petition is untimely.
Next, the Supreme Court has held that a claim of “actual
innocence,
if
proved,
serves
as
a
gateway”
expiration of the statute of limitations.
569 U.S. 383, 386 (2013).
requires
the
petitioner
to
overcome
the
McQuiggin v. Perkins,
However, a claim of actual innocence
to
“support
his
allegations
of
constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence—that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995).
“To establish the
requisite probability, the petitioner must show that it is more
8
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likely than not that no reasonable juror would have convicted him
in the light of the new evidence.”
Id. at 327.
The McQuiggin
Court “stress[ed] . . . that the Schlup standard is demanding” and
“[t]he gateway should open only when a petition presents ‘evidence
of innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error.’ ”
McQuiggin,
569 U.S. at 401 (quoting Schlup, 513 U.S. at 316).
Petitioner raises three grounds of ineffective assistance of
trial counsel in his habeas petition, none of which argues actual
innocence.
He asserts that trial counsel was constitutionally
ineffective for:
Advising him against testifying in his own
defense;
Failing to file an expiration of speedy trial
motion and motion to discharge; and
Failing to object to an officer’s hearsay
testimony
regarding
the
victim’s
identification
of
Petitioner
as
the
perpetrator.
(Doc. 1 at 6, 11, 13).
Even if the Court could liberally construe
these grounds as raising a claim of actual innocence, Petitioner
does not present any new evidence showing that he is actually
innocent of the crimes for which he was convicted.
513
U.S.
at
324.
Accordingly,
McQuiggin’s
See Schlup,
actual
innocence
exception does not operate to excuse Petitioner’s failure to timely
file his federal habeas petition.
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III. Conclusion
Based on the foregoing, the Court concludes that Petitioner’s
28 U.S.C. § 2254 petition was filed after the expiration of the
AEDPA’s one-year period for filing such petitions and that he is
not entitled to federal review of his habeas claims through any
recognized exception to the time bar.
Accordingly, it is ordered that:
1.
The 28 U.S.C. § 2254 petition filed by Joe Martinez is
DISMISSED with prejudice as time barred.
2.
The Clerk is DIRECTED to enter judgment, deny any pending
motions as moot, terminate any deadlines, and close this case.
Certificate of Appealability 3
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, 276
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.
3
10
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(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).
Further, to obtain a certificate of
appealability when, as here, dismissal is based on procedural
grounds, a petitioner must show, “at least, that jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 483–84
(2000).
Petitioner has not made the requisite showing in these
circumstances
and
is
not
entitled
to
a
certificate
of
appealability.
Because
Petitioner
is
not
entitled
to
a
certificate
appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Fort Myers, Florida on May 2, 2022.
SA:
FTMP-2
Copies to: Counsel of Record
Unrepresented Parties
11
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