Lawrence v. McDonough et al

Filing 29

ORDER denying the Petition and dismissing the case with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 11/12/2014. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

BOBBY LEE LAWRENCE,
Petitioner,
v.

Case No. 3:12-cv-310-J-34JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Bobby Lee Lawrence initiated this action on March
21, 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,
Lawrence challenges a 2006 state court (Duval County, Florida)
judgment of conviction for aggravated fleeing and eluding a law
enforcement officer and child abuse. Respondents have submitted a
memorandum in opposition to the Petition. See Respondents' Motion
to Dismiss Petition for Writ of Habeas Corpus (Response; Doc. 21)

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Lawrence filed the Petition in this Court on March 21, 2012.
He is not entitled to the benefit of the mailbox rule since there
is neither a date on the Petition reflecting when he signed it nor
a date showing when he handed it to the prison authorities for
mailing to this Court. See Rule 3(d), Rules Governing Section 2254
Cases in the United States District Courts. Nevertheless, the Court
will give Lawrence 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 April 23, 2012, the Court entered an
Order to Show Cause and Notice to Petitioner (Doc. 6), admonishing
Lawrence regarding his obligations and giving Lawrence a time frame
in which to submit a reply. Lawrence submitted a brief in reply.
See Reply Motion to Dismiss Respondents' Motion (Doc. 28). 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
made retroactively applicable to
cases on collateral review; or

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(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
Lawrence's claim.
Respondents contend that Lawrence has not complied with the
one-year period of limitations set forth in 28 U.S.C. § 2244(d).
The following procedural history is relevant to the one-year
limitations issue. On August 7, 2006, the State of Florida charged
Lawrence with aggravated fleeing or attempting to elude a law
enforcement officer (count one) and child abuse (count two). Resp.
Ex. 3, Amended Information. Lawrence proceeded to trial in October
2006, see Resp. Ex. 5, at the conclusion of which a jury found him
guilty

of

aggravated

fleeing

or

attempting

to

elude

a

law

enforcement officer and child abuse, as charged, see Resp. Ex. 6,
Verdicts. On December 14, 2006, the court sentenced Lawrence to a
term of twenty years imprisonment for count one, and a term of ten

3

years imprisonment for count two, to run concurrently with count
one. Resp. Ex. 10.2
On appeal, Lawrence, through counsel, filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967). Resp. Ex. 13, Initial
Brief of Appellant. Additionally, Lawrence filed a pro se brief.
Resp. Ex. 15. On February 21, 2008, the appellate court affirmed
Lawrence's conviction and sentence per curiam without issuing a
written opinion, see Lawrence v. State, 975 So.2d 1138 (Fla. 1st
DCA 2008); Resp. Ex. 16, and the mandate issued on March 18, 2008,
see Resp. Ex. 16. Lawrence did not seek review in the United States
Supreme Court.
Lawrence's conviction became final on Wednesday, May 21, 2008
(90 days from February 21, 2008). See Close v. United States, 336
F.3d 1283, 1285 (11th Cir. 2003) ("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."). Because Lawrence's
conviction was after April 24, 1996, the effective date of the
AEDPA, Lawrence had one year from the date his conviction became
final to file the federal petition (May 21, 2009). His Petition,

2

Lawrence filed a pro se motion for post conviction relief in
the trial court on December 28, 2006. Resp. Ex. 11. However, the
motion does not appear on the trial court's docket. Resp. Ex. 1.
Lawrence filed a Notice of Appeal on January 12, 2007. Resp. Ex.
12.
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filed on March 21, 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.
The one-year period of limitations started running on May 22,
2008, and ran for two hundred and fifty-six (256) days until
Lawrence filed a pro se motion for post conviction relief on
February 2, 2009. Resp. Ex. 17. On October 12, 2010, the circuit
court

denied

the

motion.

Resp.

Ex.

20.

The

appellate

court

dismissed Lawrence's appeal of that denial on December 30, 2010,
see Resp. Ex. 31, and later denied his motions for rehearing and
reinstatement on February 18, 2011, see Resp. Ex. 37. Lawrence
filed a pro se petition for writ of quo warranto in the Florida
Supreme Court on February 6, 2011, but the Florida Supreme Court
construed his later filed motion to strike as a notice of dismissal
and dismissed the petition on March 29, 2011. Resp. Ex. 49A;
Lawrence v. Borello, 60 So.3d 387 (Fla. 2011).
While Lawrence's petition for writ of quo warranto was pending
before the Florida Supreme Court, he filed another motion for post
conviction relief in the circuit court on March 17, 2011. Resp. Ex.
38. On August 10, 2011, the circuit court denied the motion as
untimely and successive. Resp. Ex. 42. On December 8, 2011, the
appellate court affirmed the trial court's denial per curiam. See
Lawrence v. State, 78 So.3d 538 (Fla. 1st DCA 2011); Resp. Ex. 47.
The mandate issued on February 16, 2012. Resp. Ex. 47. The pendency

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of Lawrence's March 17, 2011 Rule 3.850 motion did not toll the
running of the one-year limitations period because the motion was
not properly filed. See Resp. Ex. 42, Order Denying Defendant's
Motion to Vacate, Set Aside, or Correct, filed August 10, 2011, at
1-2, 2 n.2 (stating that "since Defendant's allegations do not give
rise to an exception to the two (2)-year time limit of Rule 3.850,
the instant Motion is untimely, in that it was filed more than two
(2) years after the Defendant's convictions became final" and
noting that the motion should have been filed before March 18,
2010); Rich v. Sec'y for Dep't of Corr., 512 F. App'x 981, 983
(11th Cir. 2013) (per curiam). Although Lawrence argues that the
claim raised in his Rule 3.850 motion qualified for an exception to
Florida's

time

requirements

under

Rule

3.850,

"[w]hen

a

postconviction petition is untimely under state law, 'that [is] the
end

of

the

matter'

for

purposes

of

§

2244(d)(2)."

Pace

v.

DiGuglielmo, 544 U.S. 408, 414 (2005).
Even assuming that the pendency of Lawrence's February 6, 2011
state petition tolled the running of the limitations period, the
period started running again on March 30, 2011, and ran for the
remaining one hundred and nine (109) days until July 17, 2011. With
the limitations period having expired on July 17, 2011, none of
Lawrence's motions filed after July 17, 2011, see Response at 1011, 17, could toll the limitations period because there was no
period remaining to be tolled. See Sibley v. Culliver, 377 F.3d

6

1196, 1204 (11th Cir. 2004) (stating that, where a state prisoner
attempts to file 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, Lawrence's March 21, 2012 Petition is
untimely filed, and due to be dismissed unless Lawrence can
establish that equitable tolling of the statute of limitations is
warranted. The United States Supreme Court has established a twoprong 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"); see also Brown v. Barrow, 512 F.3d 1304, 1307 (11th
Cir. 2008) (noting that the Eleventh Circuit "has held that an
inmate bears a strong burden to show specific facts to support his

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claim of extraordinary circumstances and due diligence.") (citation
omitted).

The

burden

is

on

Lawrence

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); Wade
v.

Battle,

379

F.3d

1254,

1265

(11th

Cir.

2004)

(citations

omitted). Here, Lawrence simply has not met the burden of showing
that equitable tolling is warranted.
As to Lawrence's claim of actual innocence, this Court finds
that he has not made the requisite showing. To make a showing of
actual innocence, Lawrence must show "that it is more likely than
not that no reasonable juror would have found Petitioner guilty
beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327
(1995). In assessing the adequacy of a petitioner's showing, the
Supreme Court has stated:
The meaning of actual innocence . . .
does not merely require a showing that a
reasonable doubt exists in the light of the
new evidence, but rather that no reasonable
juror would have found the defendant guilty.
It is not the district court's independent
judgment as to whether reasonable doubt exists
that the standard addresses; rather the
standard requires the district court to make a
probabilistic
determination
about
what
reasonable, properly instructed jurors would
do.
Thus, a petitioner does not meet the
threshold requirement unless he persuades the
district court that, in light of the new
evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a
reasonable doubt.

8

Id. at 329; see also Sibley, 377 F.3d at 1205 (stating that "[t]o
establish the requisite probability, the petitioner must show that
it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence") (citations
omitted). Moreover, "[u]nexplained delay in presenting new evidence
bears on the determination whether the petitioner has made the
requisite showing." McQuiggin v. Perkins, 133 S.Ct. 1924, 1935
(2013). Again stressing that "the Schlup standard is demanding[,]"
the Supreme Court has stated: "The 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.'" Id. at 1936 (quoting Schlup, 513 U.S. at
316).
Here, Lawrence has not offered any new reliable evidence that
was not available at the time of his trial. He has not produced
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence that was not available at the time of
his trial. Indeed, he has failed to point to any evidence to
demonstrate that it is more likely than not that no juror, acting
reasonably, would have found him guilty beyond a reasonable doubt
in light of new evidence. This is not an "extraordinary" case under
the Schlup standard. House v. Bell, 547 U.S. 518, 538 (2006).

9

Lawrence 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).
III. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Lawrence 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 showing, Lawrence "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. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
10

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 Lawrence 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 12th day of
November, 2014.

sc 10/29
c:
Bobby Lee Lawrence
Ass't Attorney General (Jordan)

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