Ross v. Secretary, Department of Corrections et al
Filing
12
ORDER granting 10 motion to dismiss, dismissing the case with prejudice, with instructions to the Clerk. Signed by Judge Roy B. Dalton, Jr. on 10/13/2011. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILFORD LEE ROSS,
Petitioner,
vs.
Case No. 3:11-cv-198-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 February 28, 2011.1
He challenges his 19992 Duval
County conviction for attempted sexual battery.
Under the Antiterrorism and Effective Death Penalty Act of
1996
(hereinafter
AEDPA),
there
is
a
one-year
period
of
limitations:
1
The Petition was filed with the Clerk on March 3, 2011;
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 (February 28, 2011). 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 September 9, 1999.
(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
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' August 10, 2011, Motion to Dismiss (Doc. #10)
2
(hereinafter Response). In support of their contentions, they have
submitted exhibits.3
See Index of Exhibits (Doc. #10).
Petitioner
was given admonitions and a time frame to respond to the request to
dismiss the Petition contained within the Response.
(Doc. #6).
See Order
Petitioner filed a Reply to Respondents' Motion to
Dismiss (Doc. #11) (hereinafter Reply).
Petitioner was charged by information with sexual battery.
Ex. C.
He entered into a guilty plea to attempted sexual battery.
Ex. D. The judgment and sentence was entered on September 9, 1999.
Ex. F.
He was deemed to be a sexual predator.
Ex. E.
He was
sentenced to twenty-three years in prison, followed by seven years
of probation.
Ex. F.
He did not seek an appeal.
Response at 2.
Therefore, his conviction became final on Tuesday, October 12,
1999,4 when the time to appeal expired.
On August 17, 2001, Petitioner filed his first Rule 3.850
motion.
Ex. I.
appeal was taken.
3
The trial court denied the motion.
Ex. K.
No
Response at 2.
The Court will hereinafter refer to Respondents' exhibits as
"Ex."
4
The time to appeal would have expired on Saturday, October
9, 1999. Petitioner would have had until Monday, October 11, 1999,
to file his appeal; however, Monday, October 11, 1999 was a legal
holiday (Columbus Day).
See Rule 6(a)(6), Fed. R. Civ. P.
Therefore, out of an abundance of caution, the Court will consider
the deadline to file the direct appeal to be Tuesday, October 12,
1999.
3
The Petition, filed February 28, 2011, 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 was tolled until Tuesday, October
12, 1999, when the time for appealing his conviction expired.
See
Fla. R. App. P. 9.140(b)(3); Gust v. State, 535 So.2d 642, 643
(Fla. 1st DCA 1988) (holding that, when a defendant does not file
a direct appeal, the conviction becomes final when the thirty-day
period for filing a direct appeal expires).
Upon
consideration,
the
one-year
limitations
period
in
Petitioner's case began to run on October 13, 1999 (Wednesday). It
expired on Friday, October 13, 2000, utilizing the anniversary
method.
Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).
Petitioner did not file his first post-conviction motion in the
state court system until August 17, 2001 (pursuant to the mailbox
rule).
Ex. I.
This motion did not toll the federal one-year
limitations period because it had already expired on October 13,
2000.
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.").
4
Although Petitioner, on November 16, 2009, filed a second Rule
3.850 motion, Ex. M at 1-20, the trial court, in its Order Denying
Motion for Post Conviction Relief, id. at 21-59, rejected the
contention of newly discovered evidence, finding the State's First
Supplemental Response to Demand for Discovery, entered in the trial
court
file
on
September
2,
1999,
provided
the
name
of
the
laboratory analyst as well as the existence of the DNA report. Id.
at 22.
1999.
Thereafter, the guilty plea was entered on September 9,
Id.
See Ex. D.
Petitioner appealed the denial of the
second Rule 3.850 motion, Ex. M at 60-61, and the First District
Court of Appeal affirmed per curiam on June 3, 2010.
Ross v.
State, 41 So.3d 221 (2010) (Table) (per curiam), reh'g denied (July
19, 2010); Ex. P; Ex. R.
The mandate issued on August 4, 2010.
Ex. S.
The DNA report simply does not constitute newly discovered
evidence.
The First Supplemental Response to Demand for Discovery
referenced Jeffery Fletcher, the Crime Laboratory Analyst for the
Florida Department of Law Enforcement, and it referenced the DNA
Report.
Ex. M at 24.
The document was hand-delivered to the
Public Defender on September 1, 1999.
Id.
Petitioner entered his
plea to attempted sexual battery on September 9, 1999.
Ex. J.
Indeed, "[t]he Defendant has failed to show how the fact that there
was no DNA found on the victim would have in any way changed the
5
outcome of his plea to the charge of attempted sexual battery."
Ex. M at 22.
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, 520 F.3d at 1318
(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 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).
Petitioner asserts that he should be entitled to equitable
tolling because of his belated discovery of the DNA report, "and a
law
clerk
who
was
assisting
the
6
Petitioner
misplaced
the
Petitioner's legal material and transferred from the institution."
Reply at 2-3.
This contention has no merit because the evidence,
the DNA report, does not constitute newly discovered evidence, and
the misplacement of legal materials years after the AEDPA one-year
limitations period expired does not constitute an extraordinary
circumstance which stood in Petitioner's way of timely filing his
federal petition.5
Here, Petitioner simply has not met the burden
of showing that equitable tolling is warranted.
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
5
Even if Petitioner is actually contending that his legal
materials were misplaced in 1999 or 2000, the misplacement of legal
materials did not prevent Petitioner from filing a state postconviction motion or a federal petition, when he could explain
therein that he was submitting his document despite the fact that
his legal materials were missing.
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.
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.
Respondents' August 10, 2011, Motion to Dismiss (Doc.
#10) 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 13th day of
October, 2011.
sa 10/13
c:
Wilford Lee Ross
Ass't A.G. (Heller)
9
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