WALKER v. MCNEIL
Filing
17
ORDER denying a certificate of appealability, with instructions to the Clerk; granting 14 motion to dismiss untimely petition, dismissing the case with prejudice, with instructions to the Clerk. Signed by Judge Roy B. Dalton, Jr. on 10/5/2011. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HILBERT LEE WALKER,
Petitioner,
vs.
Case No. 3:10-cv-314-J-37TEM
SECRETARY, DOC, et al.,
Respondents.
ORDER OF DISMISSAL WITH PREJUDICE
Petitioner initiated this action by filing a Petition (Doc.
#1) (hereinafter Petition) for writ of habeas corpus pursuant to 28
U.S.C. § 2254 on March 31, 2010.1
He challenges his 19812 Bradford
County conviction for murder in the first degree.
Under the Antiterrorism and Effective Death Penalty Act of
1996
(hereinafter
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
1
The Petition was filed with the Clerk on April 5, 2010;
however, giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date Petitioner
signed his Petition and handed it to prison authorities for mailing
to this Court (March 31, 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
The judgment and sentence was entered on April 24, 1981.
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
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
Respondents contend that Petitioner has not complied with the
one-year period of limitations as set forth in this subsection.
See Respondents' September 21, 2010, Motion to Dismiss Untimely
Petition
for
Response).
Writ
of
Habeas
Corpus
(Doc.
#14)
(hereinafter
In support of their contentions, they have submitted
2
exhibits.3 See Exhibits to Motion to Dismiss Untimely Petition for
Writ of Habeas Corpus (Doc. #14). Petitioner was given admonitions
and a time frame to respond to the request to dismiss the Petition
contained within the Response. See Court's Order (Doc. #10), filed
May 5, 2010. Petitioner's Reply to Respondents' Response to Motion
to Dismiss Writ of Habeas Corpus (Doc. #15) was filed on October 4,
2010, pursuant to the mailbox rule.
After a jury trial, Petitioner was found guilty of murder in
the first degree.
Ex. A at 1.
entered on April 24, 1981.
The judgment and sentence was
Id. at 2-4.
Petitioner appealed, and
the conviction was affirmed on April 13, 1982.
415 So.2d 1369 (Fla. 1st DCA 1982); Ex. B.
Walker v. State,
His conviction became
final on July 12, 1982 (90 days after April 13, 1982) ("According
to rules of the Supreme Court, a petition for certiorari must be
filed within 90 days of the appellate court's entry of judgment on
the appeal or, if a motion for rehearing is timely filed, within 90
days of the appellate court's denial of that motion.").4
3
The Court will hereinafter refer to Respondents' exhibits as
"Ex."
4
Although Petitioner has checked the box yes, indicating he
filed a petition for writ of certiorari, Petition at 2, he did not
provide the Court with the date of the result or the result of
certiorari proceedings. Id. Additionally, he did not provide the
Court with a citation to any certiorari proceedings. The Court has
thoroughly reviewed the case history of Walker v. State, 415 So.2d
1369 (Fla. 1st DCA Apr. 13, 1982) (Table), the affirmance on direct
appeal, and found no record of a petition for certiorari being
filed or addressed. Apparently, Petitioner did not file a petition
for certiorari. Response at 2.
3
The Petition, filed March 31, 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.
On March 15, 2007, he filed a Petition for Writ of Habeas Corpus in
the circuit court, which was construed to be a Rule 3.850 motion.
Ex. A at 5-14.
On July 20, 2007, an order was entered finding the
Rule 3.850 motion procedurally barred as untimely filed.
15-16.
Petitioner appealed.
Id. at 17.
Id. at
He was granted leave to
take a belated appeal of the denial of the Rule 3.850 motion.
at 19.
The mandate issued on July 25, 2008.
Petitioner raised one issue on appeal:
Id.
Id. at 20.
the trial court erred
when denying Appellant's petition for writ of habeas corpus and
treating it as a motion for post conviction relief.
Ex. C at 2.
The First District Court of Appeal per curiam affirmed the circuit
court on May 7, 2009.
Ex. E.
The mandate issued on June 2, 2009.
Ex. F.
The one-year limitations period in Petitioner's case began to
run on April 24, 1996.
Wilcox v. Fla. Dep't of Corr., 158 F.3d
1209, 1211 (11th Cir. 1998) (per curiam) (one-year from date of
enactment is adopted for convictions that became final prior to the
effective date of AEDPA); see Guenther v. Holt, 173 F.3d 1328, 1331
(11th
Cir.
1999),
cert.
denied,
528
U.S.
1085
(2000).
The
limitations period expired on April 24, 1997. See Response at 3-4.
4
Petitioner did not file anything in the state court system
until March 15, 2007 (pursuant to the mailbox rule), when he filed
his Rule 3.850 motion in the state circuit court.
Ex. C.
This
motion did not toll the federal one-year limitations period because
it had already expired on April 24, 1997.
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.").
Therefore, the Petition was not timely filed in this
Court.
Based on the foregoing, the Petition is untimely and due to be
dismissed unless Petitioner can establish that equitable tolling of
the statute of limitations is warranted. The United States Supreme
Court set forth a two-prong test for equitable tolling, stating
that a petitioner "must show '(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances
stood in his way' and prevented timely filing."
Lawrence v.
Florida, 549 U.S. 327, 336 (2007); see Downs v. McNeil, 520 F.3d
1311, 1318 (11th Cir. 2008) (stating that equitable tolling "is a
remedy that must be used sparingly"); Brown v. Barrow, 512 F.3d
1304, 1307 (11th Cir. 2008) (per curiam) (noting that the Eleventh
5
Circuit "has held that an inmate bears a strong burden to show
specific facts to support his claim of extraordinary circumstances
and
due
diligence")
(citation
omitted).
The
burden
is
on
Petitioner to make a showing of extraordinary circumstances that
are both beyond his control and unavoidable with diligence, and
this high hurdle will not be easily surmounted.
Howell v. Crosby,
415 F.3d 1250 (11th Cir. 2005), cert. denied, 546 U.S. 1108 (2006);
Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir. 2004) (per curiam)
(citations omitted).
Here, Petitioner simply has not met the
burden of showing that equitable tolling is warranted.
Petitioner claims that he "was led to believe through his own
ignorance as upon reading the mandate issued Petitioner read that
proceeding was final."
Petition (Motion for Equitable Tolling at
3). While the Court recognizes that the lack of a formal education
presents challenges, it does not excuse Petitioner from complying
with the time constraints for filing a federal petition.
Moore v.
Bryant, No. 5:06cv150/RS/EMT, 2007 WL 788424, at *2-*3 (N.D. Fla.
Feb.
12,
2007)
(not
reported
in
F.Supp.2d)
(Report
and
Recommendation), Report and Recommendation adopted by the District
Court on March 14, 2007; see Conner v. Bullard, No. Civ.A. 03-0807CG-B, 2005 WL 1387630, at *3 (S.D. Ala. June 9, 2005) (not reported
in
F.Supp.2d)
(finding
the
claim
of
illiteracy
to
not
be
justification for equitable tolling of the one-year statute of
limitations), Conner v. Bullard, No. CIV.A. 03-807-CG-B, 2005 WL
6
1629951 (S.D. Ala. July 8, 2005) (not reported in F.Supp.2d)
(Report and Recommendation Adopted by the District Court); Malone
v. Oklahoma, 100 Fed. Appx. 795, 798 (10th Cir. 2004) (not selected
for publication in the Federal Reporter) (stating that ignorance of
the law, even for an incarcerated pro se petitioner, generally does
not excuse prompt filing); Turner v. Johnson, 177 F.3d 390, 392
(5th Cir. 1999) (per curiam) (stating that unfamiliarity with the
legal process due to illiteracy does not merit equitable tolling),
cert. denied, 528 U.S. 1007 (1999).
Petitioner complains that he was not advised by direct appeal
counsel to pursue timely post-conviction remedies.
(Motion for Equitable Tolling at 2-3).
Petition
This argument has no merit
because the time limitations did not go into effect for filing a
Rule 3.850 motion until 1985, long after the direct appeal was over
and Petitioner's conviction was final.
Response at 5-6.
Thus,
counsel on direct appeal would not have been obliged to inform
Petitioner of the time limit for filing a Rule 3.850 motion since
there was no limitations period at that time.
Additionally, the
one-year limitations period set forth in AEDPA was not adopted
until 1996; therefore, direct appeal counsel would certainly not
have been obligated to apprise Petitioner of a limitations period
for filing a federal petition that was not in existence at the
conclusion of Petitioner's direct appeal.
7
Finally, Petitioner, in his Reply at 3-4, asserts that the
AEDPA one-year limitations period violates the Ex Post Facto Clause
of
the
United
States
Constitution
because
retrospectively to his conviction from 1981.
I, § 9, cl. 1.
it
was
applied
See U.S. Const. art.
This claim is due to be denied because the section
2254 statute of limitations "did not make criminal a theretofore
innocent act, aggravate a crime previously committed, provide a
greater punishment, or change the proof necessary to convict,
[therefore] its application to [Petitioner] does not violate the Ex
Post Facto Clause."
Smith v. Snyder, 48 Fed. Appx. 109, 111 (6th
Cir. 2002) (not selected for publication in the Federal Reporter)
(citing Seymour v. Walker, 224 F.3d 542, 560 (6th Cir. 2000)
(finding provisions of AEDPA do not violate ex post facto rights),
cert. denied, 532 U.S. 989 (2001)).
See Kesterson v. Ballard, No.
2:08-cv-00903, 2009 WL 1288865, at *2 (S.D. W. Va. May 8, 2009)
(not reported in F.Supp.2d) (agreeing with the Sixth Circuit that
the one-year limitations period of AEDPA does not violate the Ex
Post Facto Clause).
Indeed, in denying objections to a Report and Recommendation
in which an Ex Post Facto Clause claim was rejected, the court
said:
In his objections, Cooper argues that the
one-year statute of limitations provision of §
2244(d), implemented by the Antiterrorism and
Effective Death Penalty Act of 1996, ("AEDPA")
Pub.L. 104-132, amounts to a violation of the
prohibition against ex post facto legislation.
8
Application of AEDPA and 28 U.S.C. § 2244(d)
to the instant habeas petition, Cooper argues,
"constitutes
arbitrary
and
potentially
vindictive legislation." As a result, Cooper
would have this Court toll the applicable
one-year statute of limitations until such
time that he became aware of the law. The
Court declines this invitation. Once the
statute of limitations for habeas relief has
expired, it cannot be tolled. Curtiss v. Mount
Pleasant Corr. Facility, 338 F.3d 851, 853
(8th Cir. 2003). As identified by Judge
Marschewski, the statute of limitations for
Cooper's habeas petition ran-at the very
latest-on April 24, 1997. Cooper's basic
objection-ignorance
of
the
limitation
statute-fails to excuse his considerable delay
in seeking post-conviction relief. The Court
cannot now toll the statute, and his petition
is time-barred.
Cooper v. Norris, No. 4:06-CV-4108, 2007 WL 2746753, at *1 (W.D.
Ark. Sept. 20, 2007) (not reported in F.Supp.2d).
Similarly, in the case at bar, Petitioner was given one-year
from the date of enactment of AEDPA to file his federal petition.
See Wilcox, 158 F.3d at 1211.
1997,
to
file
his
federal
Therefore, he had until April 24,
petition.
He
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.
9
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
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
the
has
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."
Therefore, it is now
ORDERED AND ADJUDGED:
10
Id.
1.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
2.
Respondents'
September
21,
2010,
Motion
to
Dismiss
Untimely Petition for Writ of Habeas Corpus (Doc. #14) 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 5th day of
October, 2011.
sa 10/4
c:
Hilbert Lee Walker
Special Counsel, Criminal Appeals (Hill)
11
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