Welty v. Secretary, Department of Corrections et al
Filing
34
ORDER granting 16 motion to dismiss, dismissing the case with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Roy B. Dalton, Jr. on 11/8/2011. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM GLENN WELTY,
Petitioner,
vs.
Case No. 3:10-cv-311-J-37TEM
SECRETARY, DOC,
et al.,
Respondents.
ORDER OF DISMISSAL WITH PREJUDICE
Petitioner
initiated
this
action
by
filing
an
Emergency
Petition for Writ of Habeas Corpus by a Person in State Custody
Pursuant to Title 28 U.S.C. 2241(c)(3) (Doc. #1) (Petition) on
April 12, 2010.1
He challenges his presumptive parole release date
(PPRD) as established by the Florida Parole Commission (Commission)
and the failure of the Commission to release him on parole.2
1
The Petition was filed with the Clerk on April 14, 2010;
however, giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date Petitioner
provided his Petition to prison authorities for mailing to this
Court (April 12, 2010). See Houston v. Lack, 487 U.S. 266, 276
(1988). The Court will also give Petitioner the benefit of the
mailbox rule with respect to his inmate pro se state court filings
when calculating the one-year limitations period under 28 U.S.C. §
2244(d).
2
In Peoples v. Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004)
(per curiam), the Eleventh Circuit found that a federal habeas
petition challenging the actions of a state parole commission was
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), there is a one-year period of limitations:
(d)(1) 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-(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 or claims
presented could have been discovered
through
the
exercise
of
due
diligence.
(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
properly brought pursuant to 28 U.S.C. § 2241, but subject to the
rules and restrictions set forth in 28 U.S.C. § 2254. Thus, the
Petition is governed by both § 2241 and § 2254.
2
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
Although Petitioner identifies his Petition as being raised
pursuant to 28 U.S.C. § 2241(c)(3), Petitioner must meet the
requirements of 28 U.S.C. § 2254.
As noted in Medberry v. Crosby,
351 F.3d 1049, 1058 (11th Cir. 2003), cert. denied, 541 U.S. 1032
(2004), "[a]fter reviewing the relevant history, it is evident that
there are two distinct means of securing post-conviction relief in
the federal courts:
an application for a writ of habeas corpus
(governed by inter alia, §§ 2241 and 2254) and a motion to vacate
a sentence (governed by § 2255)."
This case, of course, is not a
challenge to a federal prisoner's sentence; therefore, § 2255 is
inapplicable.
Thus, this case is governed by both § 2241 and §
2254.
The difference between the statutes lies
in the breadth of the situations to which they
apply. Section 2241 provides that a writ of
habeas corpus may issue to a prisoner in the
following five situations:
. . . .
(3) He is in custody in violation of
the Constitution or laws or treaties
of the United States; or . . . .
28 U.S.C. § 2241(c).
Section 2254, on the
other hand, applies to a subset of those to
whom § 2241(c)(3) applies – it applies to "a
person in custody pursuant to the judgment of
a State court" who is "in custody in violation
of the Constitution or laws or treaties of the
3
United States."
added).
28 U.S.C. § 2254(a) (emphasis
Medberry, 351 F.3d at 1059 (emphasis added).
"Section 2254(a) merely specifies the class of state prisoners
to which the additional restrictions of § 2254 apply."
351 F.3d at 1060.
Medberry,
Indeed, 28 U.S.C. § 2244(d)(1) states that a
one-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.
Thus, Petitioner's habeas petition "is
subject
and
both
to
§
2241
to
§
2254,
with
its
attendant
restrictions[,]" Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir.
2004), cert. denied, 543 U.S. 1063 (2005), including the one-year
period of limitation.
Respondent
Commission
contends
that
Petitioner
has
not
complied with the one-year period of limitations as set forth in
this subsection. See Respondent Florida Parole Commission's Motion
to Dismiss or, in the Alternative, Response to Court's Order to
Show Cause (Doc. #16) (Motion to Dismiss).
In support of its
contentions, the Commission has submitted exhibits.3
to
Respondent's
Response
(Doc.
#16).
See Appendix
Petitioner
was
given
admonitions and a time frame to respond to the request to dismiss
the Petition contained within the Motion to Dismiss.
(Doc. #9).
3
See Order
Petitioner filed a Sworn Traverse to Florida Parole
The Court will hereinafter refer to Respondents' exhibits as
"Ex."
4
Commission's Motion to Dismiss, or, in the Alternative, Response to
Court Order to Show Cause (Doc. #30) and an Appendix (Doc. #31).
The
Secretary
of
the
Florida
Department
of
Corrections
(Department) filed a Limited Response to Emergency Petition for
Writ of Habeas Corpus Under 28 U.S.C. §2254 (Doc. #12) on August
16, 2010, noting that the Department has no authority over setting
the PPRD, and the Department is a nominal party to the action and
must
defer
Petitioner
to
the
filed
Commission
his
Sworn
concerning
Traverse
Petitioner's
to
Florida
PPRD.
Dept.
of
Corrections' Limited Response to Petition for Writ of Habeas Corpus
Under Title 28 U.S.C. 2241(c)(3) (Doc. #32) and an Appendix (Doc.
#32).
A brief procedural history follows. Petitioner was charged by
Indictment with first degree murder.
entered on October 10, 1978.
Id.
Ex. A.
The judgment was
He was sentenced to death, and
the order was entered on October 31, 1978.
Id.
He was re-
sentenced to life, with parole not to be granted for twenty-five
years, on December 7, 1981, nunc pro tunc October 31, 1978. Ex. B.
Petitioner was scheduled for an initial interview with the
Commission in April, 2002; however, he was deemed ineligible for a
PPRD interview due to receiving a disciplinary report. Ex. C. His
interview was rescheduled for October, 2002.
Id.
Petitioner was interviewed on October 31, 2002, and the Parole
Examiner, on November 1, 2002, recommended a PPRD of October 25,
5
2003.
Ex. D.
A Commission meeting was held on December 4, 2002,
and a PPRD was established to be October 31, 2043.
decision was certified on December 10, 2002.
Id.
Id.
This
On January 6,
2003, Petitioner submitted a request for Review of Presumptive
Parole Release Date. Ex. E. The Commission granted administrative
review and found a scrivener's error in the salient factor score,
but found there should be no modification to the assigned PPRD
date;
however,
without
explanation,
the
PPRD
date,
after
a
Commission meeting on March 19, 2003, was established to be
October 30, 2043.4
2003.
Id.
Id.
This decision was certified on March 27,
Petitioner was notified that his next interview would
take place in August, 2007.
Id.
Petitioner did not file anything in the state court system
until February 22, 2005, when he filed a petition for writ of
mandamus.
Ex. G.
Petitioner moved to dismiss the action, and an
Order of Voluntary Dismissal was entered on July 14, 2005.
Id.
The Petition, filed April 12, 2010, is due to be dismissed as
untimely
unless
Petitioner
can
avail
himself
of
one
of
the
statutory provisions which extends or tolls the limitations period.
The one-year limitations period began to run on Friday, March 28,
2003 (the day after the Commission certified that it had denied the
appeal/request for modification of the assigned PPRD), and expired
4
Upon review, October 31, 2043, is a Saturday. Apparently,
a decision was made to move the PPRD to a week-day, Friday, October
30, 2043.
6
on Monday, March 29, 2004, utilizing the anniversary method. Downs
v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).
Petitioner did
not file his post conviction motion in the state court system until
February 22, 2005.
This motion did not toll the federal one-year
limitations period because it had already expired on March 29,
2004.
See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (per
curiam), cert. denied, 531 U.S. 991 (2000) ("Under § 2244(d)(2),
even 'properly filed' state-court petitions must be 'pending' in
order to toll the limitations period.
A state-court petition like
[Petitioner]'s that is filed following the expiration of the
limitations period cannot toll that period because there is no
period remaining to be tolled.").
Petitioner has not shown any justifiable reason why the
dictates of the one-year limitations period should not be imposed
upon him.
Petitioner had ample time to exhaust state remedies and
prepare and file a federal petition.
Therefore, this Court will
dismiss this case with prejudice pursuant to 28 U.S.C. § 2244(d).
If
Petitioner
appeals,
the
undersigned
certificate of appealability is not warranted.
opines
that
a
See Rule 11, Rules
Governing Section 2254 Cases in the United States District Courts.
This Court should issue a certificate of appealability only if the
Petitioner
makes
"a
substantial
constitutional right."
showing
of
the
28 U.S.C. §2253(c)(2).
denial
of
a
To make this
substantial showing, Petitioner "must demonstrate that reasonable
7
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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where
a
constitutional
district
claims
court
on
has
the
rejected
merits,
the
a petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
Slack, 529 U.S. at 484.
See
However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
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." Id. The
Court will deny a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
If Petitioner appeals, the Court denies a certificate of
appealability.
Because
this
Court
has
determined
that
a
certificate of appealability is not warranted, the Clerk shall
terminate from the pending motions report any motion to proceed on
8
appeal
as
a
pauper
that
may
be
filed
in
this
case.
Such
termination shall serve as a denial of the motion.
2.
Respondent Florida Parole Commission's October 6, 2010,
Motion to Dismiss (Doc. #16) is GRANTED.
3.
The case is DISMISSED with prejudice.
4.
The Clerk of the Court shall enter judgment dismissing
this case with prejudice.
5.
The Clerk of the Court shall close this case.
DONE AND ORDERED at Jacksonville, Florida, this 8th day of
November, 2011.
sa 11/8
c:
William Glenn Welty
Counsel of Record
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