Miles v. Attorney General, State of Florida et al
Filing
22
ORDER granting 18 Respondents' Motion to Dismiss Petition as Untimely; dismissing the Petition with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 10/29/2015. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IVORY MILES,
Petitioner,
vs.
Case No. 3:13-cv-759-J-39MCR
SECRETARY, DOC, et al.,
Respondents.
ORDER OF DISMISSAL WITH PREJUDICE
Petitioner initiated this action by filing a Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (Petition) (Doc. 1) on June 24, 2013 pursuant to the
mailbox rule.1
He challenges his 2008 Duval County conviction for
armed burglary with battery.
As recently noted by the Eleventh Circuit in Espinosa v.
Sec'y, Dep't of Corr., No. 14-10581, 2015 WL 6405404, at *2 (11th
Cir. Oct. 23, 2015),
1
The Petition was filed with the Clerk on June 27, 2013;
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 (June 24, 2013). See Houston v. Lack, 487 U.S. 266, 276
(1988); Rule 3(d), Rules Governing Section 2254 Cases in the United
States District Courts. 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).
The Antiterrorism and Effective Death
Penalty Act provides a "1–year period of
limitation ... [for] an application for a writ
of habeas corpus by a person in custody
pursuant to the judgment of a State court. "28
U.S.C. § 2244(d)(1). The period runs from the
latest of four dates, including, as applies
here, "the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review." Id. § 2244(d)(1)(A). "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...."Id. § 2244(d)(2).
Respondents contend that Petitioner has not complied with the
one-year period of limitations as set forth in this subsection.
See Respondents' Motion to Dismiss Petition for Writ of Habeas
Corpus as Untimely (Response) (Doc. 18).
contention, they have submitted exhibits.2
In support of this
(Doc. 18).
Petitioner
was given admonitions and a time frame to respond to the request to
dismiss the Petition contained within the Response.
Order (Doc. 12).
See Court's
Petitioner filed a Reply to State's Motion to
Dismiss Petition as Time-Barred (Doc. 21) (Reply).
More specifically, under the Antiterrorism and Effective Death
Penalty Act (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
2
The Court hereinafter refers to the exhibits as "Ex."
2
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).
The record shows the following.
Petitioner was charged by an
amended information with armed burglary with assault or battery.
Ex. A at 18.
The jury found him guilty as charged and determined
that he possessed a dangerous weapon during the commission of the
offense.
Id. at 44; Ex. B at 189.
3
The court entered judgment and
sentenced him to life as a prison released re-offender.
67-72.
He appealed.
Id. at 79; Ex. D; Ex. E.
Ex. A at
The First District
Court of Appeal affirmed per curiam on November 5, 2009.
The mandate issued on November 23, 2009.
Ex. G.
Ex. F.
His conviction
became final on February 3, 2010 (90 days after November 5, 2009)
("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.").
The statute of limitations period began to run on February 4,
2010, and ran for 312 days, until Petitioner filed a Rule 3.850
motion on December 14, 2010, pursuant to the mailbox rule.
at 1-70.
The circuit court entered an Order Denying Defendant's
Motion for Post Conviction Relief on August 8, 2011.
200.
Ex. N
Id. at 80-
Petitioner had thirty days, or until September 7, 2011, to
appeal.
Thus, the limitations period remained tolled through
September 7, 2011.
See Cramer v. Sec'y, Dep't of Corr., 461 F.3d
1380, 1383 (11th Cir. 2006) (per curiam) (finding the statute of
limitations tolled during the time in which the petitioner could
have appealed an order denying an application for state post
conviction relief).
Thereafter, the limitations period ran for a
period of twenty days until Petitioner filed his state habeas
corpus petition on September 29, 2011.
4
Ex. H.
The limitations
period remain tolled during the pendency of the state habeas
proceeding.
On December 7, 2011, the First District Court of
Appeal denied rehearing.
Ex. M.
At this point, there were 33 days
remaining in the one-year limitations period.
Therefore, the one-
year limitations period expired on Tuesday, January 10, 2012.
Petitioner filed the instant federal Petition on June 24, 2013.
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.
Before addressing the question of whether equitable tolling is
warranted under the circumstances presented, there is one matter
that merits a brief discussion.
The Court recognizes that on
August 22, 2011, Petitioner filed Motion for Extension of Time for
Filing Motion for Rehearing concerning the denial of his Rule 3.850
motion.
Ex. O at 234-36.
He followed that motion by filing a
Motion for Rehearing on September 6, 2011.
Id. at 237-96.
On
November 9, 2011, the trial court found that Petitioner failed to
state good cause for an extension of time and denied the motion for
rehearing as untimely.
Id. at 297-98.
On November 17, 2011,
Petitioner appealed the trial court's decision.
Ex. P; Ex. Q; Ex. R; Ex. S; Ex. T; Ex. U.
Id. at 299-300;
On April 27, 2012, the
First District Court of Appeal held:
The trial court did not abuse its
discretion by denying Appellant's motion for
extension of time to file a motion for
rehearing and denying the motion for rehearing
5
as untimely. Because the motion for rehearing
was untimely, it did not toll the rendition of
the final order for purposes of seeking this
appeal.
Fla. R. App. P. 9.020(h).
This
appeal is thus untimely and is DISMISSED.
Gary v. State, 5 So.3d 713 (Fla. 1st DCA
2009).
Ex. V.
Petitioner moved for rehearing, the First District Court
denied the motion, and the mandate issued on July 6, 2012.
Ex. X; Ex. Y.
Ex. W;
Petitioner sought discretionary review, but the
Florida Supreme Court declined to accept jurisdiction and denied
review.
Ex. Z; Ex. AA; Ex. BB; Ex. CC; Ex. DD.
The limitations period was not tolled during this activity
because the trial court found the motion for rehearing untimely and
the First District Court of Appeal dismissed the notice of appeal
as untimely.
See Allen v. Siebert, 552 U.S. 3, 7 (2007) (finding
a petition rejected as untimely filed by the state courts is not a
properly filed application for post conviction or other collateral
review for purposes of 28 U.S.C. § 2244(d)(2) and does not toll the
limitations period).
As such, the limitations period was not
tolled during the pendency of Petitioner's untimely appeal.3
3
See
This Court must defer to the First District Court of
Appeal's ruling that the appeal was untimely.
See Pace v.
DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a postconviction
petition is untimely under state law, 'that [is] the end of the
matter' for purposes of § 2244(d)(2)") (citation omitted); Stafford
v. Thompson, 328 F.3d 1302, 1305 (11th Cir. 2003) (per curiam)
(holding that a court is "bound by the state court's determination
that the appeal was untimely").
6
Evans v. Chavis, 546 U.S. 189, 191 (2006) (explaining that a claim
is pending during "the period between (1) the lower court's adverse
determination, and (2) the prisoner's filing of a notice of appeal,
provided that the filing of the notice of appeal is timely under
state
law");
Artuz
v.
Bennett,
531
U.S.
4,
8
(2000)
("[A]n
application is 'properly filed' when its delivery and acceptance
are in compliance with the applicable laws and rules governing
filings" including "time limits upon its delivery"); Neal v. Sec'y
Dep't of Corr., 271 F. App'x 893, 896 (11th Cir. 2008) (per curiam)
(finding that a state prisoner's appeal from a state court's order
denying a motion for post conviction relief did not toll the
limitations period, given the state court's determination that the
appeal was untimely).
Thus, this action, filed on June 24, 2013,
was filed well after the one-year limitation period expired.
In the Petition, Petitioner claims that he should be entitled
to equitable tolling of the limitations period "because of the 11th
hour procedural due process issue pro se in which Petitioner was
compelled
to
interlocutory
appeal."
Petition
at
100.
He
identifies the referenced appeal issue as: "[t]he state courts'
order(s) denying his 3.850 appeal as untimely and holding his
timely filed motion for extentsion [sic] of time to file a motion
for rehearing did not toll the time to appeal."
Id.
Of import, "[t]he limitations period is subject to equitable
tolling."
Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 474 (11th
7
Cir. 2014) (citing Holland v. Florida, 560 U.S. 631, 130 S.Ct.
2549, 2560 (2010)).
The United States Supreme Court set forth a
two-prong test for equitable tolling, stating that a petitioner
must
demonstrate
"(1)
that
he
has
been
pursuing
his
rights
diligently, and (2) that some extraordinary circumstances stood in
his way and prevented timely filing."
Holland, 130 S.Ct. at 2562
(quotation marks omitted); 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) (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).
Based on a review of the
record, Petitioner has not met the burden of showing that equitable
tolling is warranted.
Indeed, Petitioner has not presented any justifiable reason
why the dictates of the one-year limitations period should not be
imposed upon him.
In his Reply, Petitioner argues that this Court
8
should find that he is entitled to equitable tolling because he
heeded the advice of an inmate law clerk who recommended that
Petitioner seek an extension of time to file a motion for rehearing
in the trial court, which proved unsuccessful.
Reply at 3, 5.
And, construing the Reply liberally, Petitioner claims that there
was limited prison law library access during the time period in
which he needed to seek rehearing of the denial of his Rule 3.580
motion.
Id. at 4.
In sum, Petitioner blames the law clerk's "bad
advice" and inadequate law library access for his untimely filings
in the state court system.
Id. at 5.
This argument is unavailing.
"[C]ircumstances warranting equitable tolling"
do not include restricted access to a law
library.
Miller v. Florida, 307 Fed. Appx.
366, 368 (11th Cir. 2009) (citing Akins v.
United States, 204 F.3d 1086, 1089-90 (11th
Cir. 2000); see also Paulcin v. McDonough, 259
Fed. Appx. 211, 213 (11th Cir. 2007)
("Paulcin's transfer to county jail and denial
of access to his legal papers and the law
library did not constitute extraordinary
circumstances."); Coleman v. Mosley, 2008 WL
2039483 at *3 (M.D. Ala. May 12, 2008)
("Petitioner'[s] pro se status, ignorance of
the law, limited law library access, and lack
of legal assistance are insufficient grounds
on which to toll the limitation period.").
Couch v. Talladega Circuit Courts, No. 1:11-cv-1737-JFG-MHH, 2013
WL 3356908, at *5 (N.D. Ala. July 3, 2013).
Petitioner's claim of poor advice from an inmate law clerk and
limited
law
library
access
do
not
constitute
extraordinary
circumstances, and Petitioner has not met the burden of showing
that equitable tolling is warranted.
9
Petitioner had ample time to exhaust state remedies and
prepare and file a federal petition. He fails to demonstrate he is
entitled to equitable tolling.
Also of note, Petitioner does not
assert or demonstrate that he has new evidence establishing actual
innocence.
See
Reply.
Therefore,
this
Court
will
grant
Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus
as Untimely, and dismiss the case with prejudice pursuant to 28
U.S.C. § 2244(d).
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
Respondents' Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely (Doc. 18) is GRANTED.
2.
The Petition is DISMISSED with prejudice.
3.
The Clerk shall enter judgment dismissing the Petition
with prejudice and dismissing the case with prejudice.
4.
The Clerk shall close the case.
5.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.4
4
Because this Court
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
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)).
Upon due consideration, this Court will deny a
10
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.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
October, 2015.
sa 10/28
c:
Ivory Miles
Counsel of Record
certificate of appealability.
11
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