Morin v. Secretary, Department of Corrections et al
Filing
16
ORDER denying the Petition and dismissing the case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 11/10/2014. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RANDY LEE MORIN,
Petitioner,
v.
Case No. 3:12-cv-137-J-34MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Randy Lee Morin initiated this action on February
6, 2012,1 by filing a pro se Petition for Writ of Habeas Corpus
(Petition; Doc. 1) under 28 U.S.C. § 2254. In the Petition, Morin
challenges a 2006 state court (Putnam County, Florida) judgment of
conviction for DUI manslaughter (two counts) and driving while
license suspended or revoked causing serious bodily injury or
death. Respondents have submitted a memorandum in opposition to the
Petition. See Respondents' Response to Petition (Response; Doc. 9)
1
Morin filed the Petition in this Court on February 8, 2012;
however, giving Morin the benefit of the mailbox rule, this Court
finds that the Petition was filed on the date Morin handed it to
the prison authorities for mailing to this Court (February 6,
2012). See Rule 3(d), Rules Governing Section 2254 Cases in the
United States District Courts. The Court will also give Morin the
benefit of the mailbox rule with respect to his inmate state court
filings when calculating the one-year limitations period under 28
U.S.C. § 2244(d).
with exhibits (Resp. Ex.). On May 17, 2012, the Court entered an
Order to Show Cause and Notice to Petitioner (Doc. 7), admonishing
Morin regarding his obligations and giving Morin a time frame in
which to submit a reply. Morin submitted a brief in reply. See
Petitioner's Traverse to the Respondents' Answer Brief on Petition
for Writ of Habeas Corpus (Reply; Doc. 11) with exhibits (Pet.
Ex.). This case is ripe for review.
II. One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) imposes a one-year statute of limitations on petitions for
writ of habeas corpus. Specifically, 28 U.S.C. § 2244 provides:
(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
2
made retroactively applicable
cases on collateral review; or
to
(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). Like the vast majority of federal habeas
petitions, § 2244(d)(1)(A) establishes the limitations period for
Morin's claims.
Respondents contend that Morin has not complied with the oneyear period of limitations set forth in 28 U.S.C. § 2244(d). The
following
procedural
history
is
relevant
to
the
one-year
limitations issue. In January 2005, the State of Florida charged
Morin with two counts of DUI manslaughter and driving while license
suspended or revoked causing serious bodily injury or death (count
three) in Case No. 2005-19. Response at 1; Resp. Exs. A; B at 15.
On May 24, 2006, in Case No. 2005-19, Morin plead nolo contendere
to two counts of DUI manslaughter and one count of driving while
license suspended or revoked causing serious bodily injury or
death. Resp. Ex. B. On June 26, 2006, the court sentenced Morin to
a term of twenty-two years of incarceration for DUI manslaughter
(count one); a term of twenty-two years of incarceration for DUI
3
manslaughter (count two), to run concurrently with count one; and
a term of twenty-two years of incarceration for count three, to run
concurrently with count one. Resp. Ex. C. Morin did not appeal the
judgment and sentence. Thus, his conviction became final thirty
days later on Wednesday, July 26, 2006. See Fla. R. App. P.
9.140(b)(3); Saavedra v. State, 59 So.3d 191, 192 (Fla. 3rd DCA
2011); 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).
Because Morin's conviction was after April 24, 1996, the
effective date of the AEDPA, Morin had one year from the date his
conviction became final to file the federal petition (July 26,
2007). His Petition, filed on February 6, 2012, is due to be
dismissed as untimely unless he can avail himself of one of the
statutory provisions which extends or tolls the limitations period.
On September 13, 2007 (forty-nine days after the limitations
period expired), Morin filed a pro se motion for post conviction
relief
pursuant
to
the
mailbox
rule.
Resp.
Ex.
D.
With
the
limitations period having expired on July 26, 2007, none of Morin's
motions filed after July 26, 2007,2 could toll the limitations
period because there was no period remaining to be tolled. See
Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating
2
See Response at 2-4.
4
that, where a state prisoner files post-conviction motions in state
court after the AEDPA limitations period has expired, those filings
cannot toll the limitations period because "once a deadline has
expired, there is nothing left to toll"); Webster v. Moore, 199
F.3d 1256, 1259 (11th Cir. 2000) (per curiam) ("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.").
Given
the
record,
Morin's
February
6,
2012
Petition
is
untimely filed, and due to be dismissed unless Morin can establish
that equitable tolling of the statute of limitations is warranted.
The United States Supreme Court has established 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." Holland v. Florida, 560 U.S. 631, 649 (2010); Cole v.
Warden, Ga. State Prison, 768 F.3d 1150, 1157-58 (11th Cir. 2014).
As an extraordinary remedy, equitable tolling is "limited to rare
and exceptional circumstances and typically applied sparingly."
Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 477 (11th Cir. 2014)
(internal quotation marks omitted). The burden is on Morin to make
a showing of extraordinary circumstances that are both beyond his
5
control and unavoidable with diligence, and this high hurdle will
not be easily surmounted. Howell v. Crosby, 415 F.3d 1250 (11th
Cir. 2005); Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir. 2004)
(citations omitted).
In the instant action, Morin asserts that "the professional
misconduct of Mr. William M. Kent, as retained legal counsel,
provides
excusable
neglect
and
satisfies
the
provisions
of
equitable tolling in habeas proceedings." Reply at 8. The following
facts are relevant to the equitable tolling issue. On January 9,
2007, Morin's father retained Mr. Kent "to investigate, prepare and
submit a state motion for post-conviction relief under Florida
Rule[] of Criminal Procedure 3.850." Petition at 8, paragraph 18;
Reply at 6; Pet. Ex. 1. In response to Morin's August 2007 Florida
Bar complaint, Mr. Kent explained what had transpired:
I was retained to review Morin's case for
purposes of filing a state 3.850 motion. I
provided an opinion letter to Mr. Morin that
determined that his state 3.850 motion would
have to be filed by August 1, 2007 in order to
toll the federal habeas deadline and preserve
his right to subsequently file a federal
habeas (2254 petition). I promised to see that
his 3.850 motion was filed by that deadline.
That August 1, 2007 date was mistakenly
calendared as October 1, 2007 on both
calendars of my office dual calendar system.
The calendar mistake was not discovered until
August 9, 2007, eight days after that
deadline. I immediately disclosed the mistake
to the client.
The very next day, August 10, 2007 I advised
his father, who had paid my fee, of the
mistake . . . .
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. . . .
In this case I made a mistake. I placed the
calendar entry on the first of October when it
should have been placed on the first of
August. I take full responsibility for that
mistake. It was a clerical mistake, not a
mistake of legal judgment or lack of
professionalism. It is not representative or
indicative of any negligence in my practice of
law or calendar management. I immediately
disclosed the mistake to the client and his
father who had paid me my retainer. I
immediately offered to and in fact did fully
refund the entire fee I had been paid to
review this case. Also, and perhaps most
important from my point of view, I sincerely
apologized to the client and his father. I
tried to deal with this mistake in the most
professional manner I could.
Pet. Ex. 2, William Mallory Kent's Letter to the Florida Bar, dated
September 7, 2007, at 1, 5; see Pet. Ex. 3. The records of the
Florida Bar reflect that Mr. Kent has no record of discipline for
the last ten years. See http://www.floridabar.org.
Determining
when
attorney
misconduct
qualifies
as
an
extraordinary circumstance "is a work in progress." Cadet, 742 F.3d
at 475. In Holland, the United States Supreme Court stated that "a
garden variety claim of excusable neglect, such as a simple
miscalculation that leads a lawyer to miss a filing deadline, does
not warrant equitable tolling," but "far more serious instances of
attorney misconduct" might. Holland, 560 U.S. at 651-52 (quotation
marks and citations omitted). Almost two years after Holland, the
Court revisited the issue of when attorney misconduct rises to the
level of extraordinary circumstances beyond a petitioner's control,
7
albeit in the context of establishing cause to excuse a procedural
bar to federal habeas relief. See Maples v. Thomas, 132 S.Ct. 912
(2012). The Court reaffirmed the longstanding rule that "under
'well-settled principles of agency law,'" a habeas petitioner
"bears the risk of negligent conduct on the part of his [attorney]"
and, therefore, is bound by the attorney's failure to meet a
deadline. Id. at 922 (quoting Coleman, 501 U.S. 722, 753–54
(1991)). "A markedly different situation is presented, however,
when an attorney abandons his client without notice, and thereby
occasions
the
default."
Id.
Because
the
principal-agent
relationship is severed, the attorney's acts or omissions cannot be
attributed to the client. Id. at 922-23.
In early 2014, in Cadet, the Eleventh Circuit "determine[d]
the current test for equitable tolling of the § 2244(d) statute of
limitations period." Cadet, 742 F.3d at 475. The Court agreed the
petitioner had acted diligently and assumed his post-conviction
counsel was grossly negligent. Thus, the "resulting question" was
"whether attorney error that amounts to gross negligence is a
sufficiently
extraordinary
circumstance
for
equitable
tolling
purposes, as the majority opinion in Holland seems to suggest, or
whether the attorney's conduct must amount to an abandonment of the
attorney-client relationship, as Maples does state." Id. at 480.
Interpreting Holland, in light of the Supreme Court's Maples
decision, the Court held that "attorney negligence, however gross
8
or egregious, does not qualify as an 'extraordinary circumstance'
for purposes of equitable tolling; abandonment of the attorneyclient relationship ... is required." Id. at 481.
Mr. Kent's miscalculation and miscalendaring of the filing
deadline, however harmful to Morin's interests, did not occur
because Mr. Kent was acting to promote his own or a third party's
interests
at
the
expense
of
Morin's
interests.
For
attorney
misconduct to amount to an extraordinary circumstance, there must
be an "absolute renunciation or withdrawal, or a complete rejection
or desertion of one's responsibilities, a walking away from a
relationship." Id. at 484 (citing Black's Law Dictionary 2 (6th ed.
1990)). Here, Mr. Kent did not withdraw from representing Morin,
renounce his role as Morin's attorney, "utterly shirk all of his
professional
responsibilities,"
id.,
or
walk
away
from
their
attorney-client relationship, see Pet. Ex. 2 at 2-4. As soon as Mr.
Kent discovered his mistake, he notified Morin and his father, and
offered to return the retainer fee. See Pet. Exs. 2; 3. Thus, Mr.
Kent's mistake "is the kind of attorney error regarding the §
2244(d) statute of limitations provisions that the Supreme Court,
[the Eleventh Circuit], and other courts have held do not qualify
as an extraordinary circumstance warranting equitable tolling. See
Cadet, 742 F.3d at 485 (citations omitted). Because Morin was not
abandoned
by
Mr.
Kent,
Morin
has
failed
to
establish
the
extraordinary circumstances necessary to warrant equitable tolling
9
of
the
§
2244(d)
limitations
period.
Morin
has
not
shown
a
justifiable reason why the dictates of the one-year limitations
period should not be imposed upon him. For this reason, this Court
will dismiss this case with prejudice pursuant to 28 U.S.C. §
2244(d) as time-barred.
III. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Morin seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial
jurists
showing,
would
find
Morin
the
"must
district
demonstrate
court's
that
reasonable
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. See
Slack, 529 U.S. at 484. However, when the district court has
10
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. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If Morin appeals the denial of the Petition, 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 appeal as a pauper that may be filed in this
case.
Such termination shall serve as a denial of the motion.
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4.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
November, 2014.
sc 11/6
c:
Randy Lee Morin
Ass't Attorney General (Matthews)
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