Robinson v. Secretary, Department of Corrections et al
Filing
49
ORDER dismissing 1 Petition for writ of habeas corpus with prejudice, with directions to the Clerk. Signed by Judge Timothy J. Corrigan on 6/13/2017. (LPB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
VERNON ROBINSON,
Petitioner,
v.
Case No. 3:14-cv-657-J-32MCR
SECRETARY, DEPARTMENT OF
CORRECTIONS, TENA M. PATE,
Parole Commission Chairman,
MELINDA N. COONRD, Commission
Secretary, and BERNARD R. CHEN,
SR., Commission Vice Chairman,
Respondents.
ORDER
I.
Status
Petitioner Vernon Robinson, an inmate of the Florida penal system, initiated
this action by filing a pro se § 2241 Habeas Corpus Petition (Doc. 1, Petition) on June
4, 2014, which he supplemented on August 28, 2014 (Doc. 15, Supp. Pet.). 1 Robinson
also filed an appendix (Doc. 3, Pet. App.) and a supplemental appendix (Doc. 2, Supp.
App.). 2 Robinson is in state custody, incarcerated at Union Correctional Institution
Giving Robinson the benefit of the mailbox rule, the Court finds that the
Petition was filed on the date Robinson handed it to prison authorities for mailing to
this Court. See Houston v. Lack, 487 U.S. 266, 276 (1988). The Court will also give
Robinson the benefit of the mailbox rule with respect to his pro se filings in state court
when calculating the one-year limitations period under 28 U.S.C. § 2244(d).
1
2
Robinson filed additional supplements. See Docs. 15, 27, 33, 45, 46.
(Union County), pursuant to a 1982 (Duval County) judgment of conviction for armed
robbery with a deadly weapon, for which he was sentenced to sixty years’
imprisonment. In grounds one through nine, Robinson challenges the computation
of his sentence by the Department of Corrections (DOC) with respect to gain time and
other credit for time served. 3
Petition at 3-4.
In grounds ten through twelve,
Robinson challenges the calculation of his presumptive parole release date (PPRD) by
the Florida Commission on Offender Review (FCOR). 4 Petition at 14-16; Supp. Pet.
at 1-2. “Presumptive parole release date” means the tentative parole release date as
determined by objective parole guidelines. See Fla. Stat. § 947.005(8).
Respondent DOC responded (Doc. 16, DOC Response) to grounds one through
nine, asserting that Robinson’s claims are untimely, meritless, and not cognizable in
federal habeas corpus. DOC Response at 11 & n.4, 12. Robinson replied (Doc. 17,
Reply to DOC).
Respondent FCOR responded (Doc. 29, FCOR Response) to grounds ten through
twelve,
asserting
that
Robinson’s
claims
are
untimely
and
unexhausted.
Alternatively, Respondent contends that Robinson’s claims are meritless. Robinson
replied (Doc. 30, Reply to FCOR).
This case is ripe for review.
3
There is no ground three. See Petition at 5-6.
Until July 1, 2014, the name of the Florida Commission on Offender Review
was the Florida Parole Commission. See Response at 1, n.1.
4
2
II.
Pertinent Procedural History 5
In 1982, the state court entered a judgment of conviction and sentenced
Robinson to a term of sixty years imprisonment. FCOR Resp. Ex. D. In 1984, the
FCOR established Robinson’s initial PPRD of August 16, 2009. FCOR Resp. Ex. E.
Following several reviews that resulted in adjustments to his PPRD (see id.), Robinson
was eventually released on parole supervision on November 12, 1996. FCOR Resp.
Ex. F. After Robinson violated the terms and conditions of his parole supervision
several times, the FCOR revoked his parole on October 15, 2003. FCOR Resp. Ex. F.
Robinson unsuccessfully challenged the revocation of his parole in state court. See
FCOR Response at 4, n.2 & Ex. G.
Following revocation of parole, on June 23, 2004, the FCOR established
Robinson’s new PPRD of December 28, 2019. FCOR Resp. Ex. H. On July 10, 2004,
Robinson administratively appealed the FCOR’s decision establishing his PPRD. Id.
After reviewing Robinson’s appeal, the FCOR found on August 11, 2014, that the
issues Robinson raised in his administrative review request did not merit modification
of his PPRD. Id. Robinson challenged the FCOR’s decision by filing a petition for a
writ of mandamus in state circuit court, which the court denied on August 26, 2005.
FCOR Resp. Ex. I.
Subsequently, the FCOR has re-interviewed Robinson at least five times. 6
Recognizing that Respondents set forth the procedural history in their
Responses, the Court will recite a limited procedural history here. See DOC
Response; FCOR Response.
5
6
2013.
The record reflects interviews every two years in 2005, 2007, 2009, 2011, and
FCOR Resp. Ex. J. Presumably, Robinson was interviewed in 2015, and
3
Other than one six-month reduction, his PPRD has remained unchanged.
FCOR
Resp. Ex. J. As such, his current PPRD is June 28, 2019. 7 Id.
III.
One-year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
petitions filed after its effective date of April 24, 1996. See Penry v. Johnson, 532
U.S. 782, 792 (2001). The AEDPA amended 28 U.S.C. § 2244 by adding the following
subsection:
(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
either has been or will be interviewed in 2017.
The Court takes judicial notice of the Florida Department of Corrections
Offender Network website, which reflects a current release date for Robinson of June
28, 2019. See http://www.dc.state.fl.us/offenderSearch (June 9, 2017).
7
4
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). Where a petitioner asserts multiple claims with different dates
triggering the statute of limitations under § 2244(d)(1), the applicable trigger date is
determined on a claim-by-claim basis. Zack v. Tucker, 704 F.3d 917, 926 (11th Cir.
2013).
Under § 2244(d)(1)(D), the limitations period begins to run on “the date on
which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” Brown v. Barrow, 512 F.3d 1304,
1307 & n.1 (11th Cir. 2008) (quoting 28 U.S.C. § 2244(d)(1)(D)); see also Hawes v.
Howerton, 335 F. App’x 882, 884 (11th Cir. 2009); Ray v. Mitchem, 272 F. App’x 807,
809-10 (11th Cir. 2008). Once triggered, the limitations period can be tolled in two
ways: through statutory tolling or equitable tolling. Brown, 512 F.3d at 1307; see
also 28 U.S.C. § 2244(d)(2) (statutory tolling); Damren v. Florida, 776 F.3d 816, 821
(11th Cir. 2015) (“When a prisoner files for habeas corpus relief outside the one-year
limitations period, a district court may still entertain the petition if the petitioner
5
establishes that he is entitled to equitable tolling.”), cert. denied, 137 S. Ct. 830 (2017).
Pursuant to the statutory tolling provision, “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)(2). However, where a state
prisoner files postconviction 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.” Sibley v. Culliver, 377 F.3d 1196, 1204 (11th
Cir. 2004); see also 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 [the
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.”).
For equitable tolling, the United States Supreme Court has established a twoprong test, stating that a petitioner must show “(1) that he has been pursuing his
rights diligently and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quotations and
citation omitted); see Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017).
In general, “equitable tolling is an extraordinary remedy ‘limited to rare and
exceptional circumstances and typically applied sparingly.’” Id. (quoting Hunter v.
Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2000)).
6
IV.
Findings of Fact and Conclusions of Law
Although styled as a petition for writ of habeas corpus under 28 U.S.C. § 2241,
Robinson’s Petition is governed by both 28 U.S.C. § 2241 and § 2254. See Thomas v.
Crosby, 371 F.3d 782, 788 (11th Cir. 2004); Medberry v. Crosby, 351 F.3d 1049 (11th
Cir. 2003).
Also, because Robinson filed his petition after April 24, 1996, § 2244
governs the statutory timeliness of his Petition.
Throughout
the
Petition,
Robinson generally
See Penry, 532 U.S. at 792.
asserts
violations
of federal
constitutional due process, equal protection, double jeopardy, cruel and unusual
punishment and involuntary servitude.
A. Grounds One and Five
Robinson challenges the DOC’s calculation of his sentence and application of
credit for gain time prior to his release on parole on November 12, 1996. Petition at
3-4, 9. He contends that his sentence had already expired prior to both his November
12, 1996, release on parole (see id. at 3 (Ground One)) and the February 18, 2003,
warrant for revocation of parole (see id. at 9 (Ground Five)).
Robinson either discovered, or through the exercise of due diligence could have
discovered, the factual predicate of his claims in grounds one and five no later than
November 12, 1996, the date he was released on parole. 8 See Brown, 512 F.3d at
The Tenth Circuit has concluded that where “a petitioner timely and
diligently exhausts his administrative remedies, § 2244(d)(1)(D)’s one-year limitation
period does not commence until the decision rejecting his administrative appeal
becomes final.” Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006) (emphasis
added). However, Robinson did not file his first administrative grievance challenging
pre-1996 gain time until 2012. See Pet. App. A, D, E. As such, Robinson did not
“timely and diligently” exhaust his administrative remedies, and he may not rely on
8
7
1308. Thus, the one-year limitations period under § 2244(d)(1)(D) was triggered no
later than November 12, 1996, and the limitations period began to run the following
day, on November 13, 1996. See San Martin v. McNeil, 633 F.3d 1257, 1266 (11th
Cir. 2011) (“AEDPA's one-year limitation period beings to run from the day after the
day of the event that triggers the period). The limitations period expired one year
later on November 13, 1997. However, Robinson’s Petition was not filed until June
4, 2014, more than sixteen years after the one-year limitations period expired.
Unless the one-year limitations period was tolled, Robinson’s claims in grounds one
and five are due to be dismissed with prejudice as untimely.
B. Ground Two
Robinson challenges the DOC’s failure to award him incentive gain time since
he returned to custody in 2003 following his parole violation. Petition at 5, 11-12.
Specifically, he asserts that the DOC failed to rate him since 2003 on his gain-time
sheet, which prevented him from receiving incentive gain-time as compared to
similarly situated inmates. Id. at 5. On August 16, 2012, Robinson initiated the
administrative grievance process, which culminated in the denial of his administrative
appeal on December 3, 2012. Pet. App. B; Reply to DOC App. L. On December 26,
2012, Robinson submitted a petition for writ of habeas corpus to the state circuit court
in Lafayette County, Florida. 9 See Pet. App. E; Reply to DOC App. L. On April 9,
Dulworth to extend the time when his one-year limitation period commences under
§2244(d)(1)(D).
Robinson raised three grounds in his petition. Two of the three are irrelevant
to the claim raised in ground two of the Petition and were denied by the circuit court
on January 15, 2013. See Pet. App. E. The circuit court ordered the DOC to respond
9
8
2013, the circuit court denied Robinson’s petition for writ of habeas corpus.
See
Response at 7. There is no record of Robinson seeking review of the April 9, 2013,
denial of habeas corpus.
Giving Robinson every benefit of the doubt and even assuming that Robinson’s
administrative appeal and state court litigation sufficed to delay the commencement
of the one-year period under § 2244(d)(1)(D) and toll the one-year period, Robinson’s
claim is untimely.
Assuming first that he asserted a continuing violation that
rendered his August 16, 2012, administrative grievance timely, and applying the
rationale in Dulworth, the latest date that the one-year period commenced under §
2244(d)(1)(D) was December 4, 2012, the day after the denial of his administrative
appeal. The period ran for twenty-two days until December 26, 2012, when the Court
assumes, for the benefit of Robinson, that his petition for writ of habeas corpus in the
circuit court tolled the period with 343 days remaining. 10 The circuit court denied his
petition for writ of habeas corpus on April 9, 2013, but Robinson did not appeal. He
filed his Petition in federal court 420 days later on June 4, 2014. Even assuming
every benefit to Robinson (including allowing thirty days for him to seek review of the
state court denial), his claim in ground two is untimely and due to be dismissed.
to Robinson’s outstanding claim. Prior to the circuit court’s ruling on the outstanding
claim, Robinson sought review by filing a petition for writ of certiorari in the First
District Court of Appeal, which was denied per curiam on March 8, 2013. See
Robinson v. Crews, No. 1D13-650, 109 So. 3d 788 (Fla. 1st DCA 2013) (table).
The circuit court’s order states that Robinson filed the petition on December
31, 2012; however, Respondent DOC asserts that Robinson submitted the petition on
December 26, 2012. Giving Robinson the benefit of the doubt and assuming
application of the mailbox rule, the Court will utilize the December 26, 2012, date in
calculating the time tolled during the one-year period.
10
9
C. Grounds Four, Six, Seven and Eight
In grounds four, six, and eight, which are repetitive, Robinson asserts that in
2003, the DOC failed to apply all of his gain time when establishing his tentative
release date. Petition at 6-7, 10, 11-12; Reply to DOC at 7-11. In ground seven, he
contends that in 2003, the DOC forfeited 3,532 days of incentive-gain time that he
earned prior to being release on parole in 1996. Id. at 11-12.
Robinson either discovered, or through the exercise of due diligence could have
discovered, the factual predicate of his claims in grounds two, six, seven, and eight no
later than 2003, the year he asserts that DOC established his tentative release date
and forfeited his gain time. 11
See Brown, 512 F.3d at 1308. Thus, the one-year
limitations period under § 2244(d)(1)(D) was triggered in 2003, and expired one year
later in 2004.
However, Robinson’s Petition was not filed until June 4, 2014,
approximately ten years after the one-year limitations period expired. Unless the
one-year limitations period was tolled, Robinson’s claims in grounds four, six, seven,
and eight are untimely.
D. Ground Nine
As ground nine, Robinson asserts that the DOC failed to restore almost five
years of credit when re-auditing his sentence in February 2009. See Petition at 1314; Reply to DOC at 11-13; Reply to DOC App. Ex. H-30 (“Your sentence was re-
Robinson did not file his first administrative grievance challenging the 2003
establishment of his tentative release date until 2012. See Pet. App. C; Pet. Supp.
App. A, B, C. As such, Robinson did not “timely and diligently” exhaust his
administrative remedies, and he may not rely on Dulworth to extend the time before
his one-year limitation period commences under §2244(d)(1)(D).
11
10
audited in Feb. 09. . . . This was the last change in your release d[ate] by sentence
structure.”). 12 In his Reply, Robinson cites and attaches Burks v. McNeil, 984 So.2d
619 (Fla. 1st DCA 2008), suggesting that Burks prompted the re-audit and resulting
reduction of his sentence in 2009. Robinson’s complaint is that his sentence should
have been reduced by nearly twenty years, but that it was reduced only by fifteen
years.
Again, Robinson either discovered, or through the exercise of due diligence could
have discovered, the factual predicate of his claims in ground nine no later than
February 2009, the date that DOC re-audited his sentence and gave him credit for
fifteen, but not nearly twenty, years. 13 See Brown, 512 F.3d at 1308. Thus, the oneyear limitations period under § 2244(d)(1)(D) was triggered in 2009, and expired one
year later in 2010. However, Robinson’s Petition was not filed until June 4, 2014,
approximately four years after the one-year limitations period expired. Unless the
one-year limitations period was tolled, Robinson’s claims in ground nine is untimely.
Robinson also Robinson refers to a response from the DOC dated December
14, 2012, in administrative appeal #12-6-38068 that informs him that his request for
administrative remedy and/or appeal was returned without action because his
sentence structure and release date calculation were the subject of pending litigation
in Leon County. See Pet. App. C-23. He also refers to the October 29, 2012, denial
of his administrative grievance. See Pet. App. D-29.
12
Robinson did not file his first administrative grievance challenging the 2003
establishment of his tentative release date until 2012. See Pet. App. C; Pet. Supp.
App. A, B, C. As such, Robinson did not “timely and diligently” exhaust his
administrative remedies, and he may not rely on Dulworth to extend the time before
his one-year limitation period commences under §2244(d)(1)(D).
13
11
E. Grounds Ten and Eleven
In grounds ten and eleven, Robinson challenges the FCOR’s recalculation of his
salient factor score and establishment of his PPRD when he returned to custody
following his October 15, 2003, revocation of parole.
Petition at 14, 15.
For
challenges to administrative decisions by a parole board, the limitations period begins
to run under § 2244(d)(1)(D) on “the date on which the factual predicate of the claim
or claims presented could have been discovered through the exercise of due diligence.”
Brown, 512 F.3d at 1307 & n.1; see also Hawes, 335 F. App’x at 884; Ray, 272 F. App’x
809-10.
Robinson challenges the Commission’s June 23, 2004, establishment of his
PPRD.
See FCOR Resp. Ex. H.
The state court action challenging the PPRD
establishment was completed on August 26, 2005. FCOR Resp. Ex. I. Robinson filed
this federal petition for writ of habeas corpus on June 4, 2014. Giving Robinson every
benefit of the doubt, and assuming that the one-year period of limitation does not
include the time when Robinson pursued his state administrative and court remedies,
Robinson still presents his claim approximately ten years too late. Robinson has not
asserted, let alone demonstrated, that he is entitled to statutory or equitable tolling. 14
In sum, the claims presented in grounds ten and eleven of the Petition are untimely
filed under § 2244(d)(1)(D), and Robinson has not shown an adequate reason why the
The Court rejects Robinson’s contention that application of AEDPA’s oneyear limitations period to his 1979 and 1982 cases constitutes an impermissible
application of ex post facto penal legislation. See Reply to Commission at 4.
14
12
dictates of the one-year limitations period should not be imposed upon him.
Therefore, the claims are due to be dismissed with prejudice as untimely.
F. Ground Twelve
In ground twelve, Robinson challenges the sixty-year sentence he received on
May 7, 1982, which he claims exceeded the “normal six year cap.” Supp. Petition at
2. The timeliness of Robinson’s challenge to his original sentence is determined by §
2244(d)(1)(A).
Because his original conviction and sentence became final prior to
AEDPA’s effective date of April 24, 1996, Robinson was required to file his claim
within a one-year grace period following the effective date of AEDPA. See Wilcox v.
Fla. Dep’t of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998) (holding that the one-year
limitations period begins to run on the effective date of AEDPA for prisoners whose
convictions became final before April 24, 1996); see also Johnson v. United States, 544
U.S. 295, 300 (2005) (recognizing the one-year grace period uniformly adopted by the
circuit courts of appeal). As such, the claim presented in ground twelve of the Petition
is untimely filed under § 2244(d)(1)(A), and Robinson has not shown an adequate
reason why the dictates of the one-year limitations period should not be imposed upon
him. Therefore, the claim is due to be dismissed with prejudice.
G. Statutory and Equitable Tolling
Robinson has not asserted that he is entitled to either statutory or equitable
tolling. Even if Robinson had asserted tolling of the one-year limitations period, he
cannot demonstrate that he is entitled to statutory tolling with respect to grounds one
13
and four through twelve. 15 He fails to present any “properly filed application for
State post-conviction or other collateral review” that would toll the one-year
limitations period under § 2244(d)(2).
Robinson did not present his claims
administratively or in state court until 2012.
By then, the one-year period of
limitations had long since expired, and any applications for state postconviction or
other collateral review filed after that date did not toll the limitations period. See
Sibley, 377 F.3d at 1204; Webster, 199 F.3d at 1259.
Robinson also fails to demonstrate a basis for equitable tolling. Robinson fails
to show that his delays were the result of extraordinary circumstances beyond his
control and were unavoidable even with due diligence. With due diligence, he could
have discovered the facts surrounding his claim earlier. After a thorough review of
the record, the Court finds neither extraordinary circumstances nor due diligence to
justify the rare remedy of equitable tolling. See Holland, 560 U.S. at 649; Cadet, 853
F.3d at 1221.
Accordingly, it is
ORDERED:
1.
The Petition (Doc. 1) and the case are DISMISSED with prejudice.
2.
The Clerk of Court shall enter judgment accordingly, terminate any
pending motions, and close this case.
3.
15
If Petitioner appeals the dismissal of the Petition, the Court denies a
The Court notes the exception in ground two for limited statutory tolling.
14
certificate of appealability. 16 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.
DONE AND ORDERED in Jacksonville, Florida the 13th day of June, 2017.
lc22
c:
Counsel of Record
Vernon Robinson, #060180
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, 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)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
16
15
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