Jones v. Secretary, Florida Department of Corrections et al
Filing
17
ORDER dismissing the petition and the case with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 1/20/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PHILIP WALTER JONES,
Petitioner,
vs.
Case No. 3:14-cv-757-J-39JBT
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner Philip Walter Jones challenges a 2006 (Clay County)
conviction for aggravated battery. Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody (Petition)
(Doc.
1)
at
1.
He
raises
four
grounds
in
the
Petition.
Respondents filed a Motion to Dismiss Petition for Writ of Habeas
Corpus as Untimely (Response) (Doc. 13).
Response, they submitted Exhibits (Doc. 14).1
In support of the
Petitioner filed a
Reply to Respondents' Motion to Dismiss Petition for Writ of Habeas
1
The Court hereinafter refers to the exhibits contained in
the Exhibits as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the Appendix. Otherwise, the page number on the particular
document will be referenced. The Court will reference the page
numbers assigned by the electronic docketing system where
applicable.
Corpus as Untimely (Reply) (Doc. 15).
See Order (Doc. 4).
No
evidentiary proceedings are required in this Court.
Pursuant to the Antiterrorism and Effective Death Penalty Act
(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
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.
- 2 -
28 U.S.C. § 2244(d).
Respondents calculate that the Petition is
untimely filed.
To adequately address Respondents' contention that Petitioner
has failed to comply with the limitations period, the Court will
provide a brief procedural history.
Petitioner was charged by
amended information with aggravated battery (domestic).
22.
Id. at 74, 76-124; Ex.
A jury returned a verdict of guilty.
B; Ex. C; Ex. D.
On June 7, 2006, the trial court sentenced
Petitioner to twenty years in prison.
Petitioner appealed.
Ex. A at 127-32, 160-79.
Ex. E; Ex. F.
On June 20, 2007, the
First District Court of Appeal affirmed per curiam.
mandate issued on July 6, 2007.
final
on
September
("According
to
Ex. A at
18,
rules
of
2007
the
Ex. H.
(90
The
The conviction became
days
Supreme
Ex. G.
after
Court,
June
a
20,
2007)
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.").
Petitioner filed a pro se Rule 3.850 post conviction motion in
the circuit court on September 10, 2007.2
2
Ex. T at 1-17.
This
On July 17, 2007, Petitioner filed a pro se petition for
writ of mandamus. Ex. R. On August 22, 2007, the First District
Court of Appeal transferred the petition to the circuit court. Ex.
S. On September 14, 2007, the circuit court granted in part and
denied in part the petition for writ of mandamus. Ex. T at 18-20.
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post conviction motion tolled the limitations period, until the
mandate issued on August 18, 2011.
Ex. BB.
Meanwhile, Petitioner
filed other motions/petitions that tolled the limitations period.
On August 5, 2008, he filed a petition for writ of habeas corpus in
the First District Court of Appeal.
limitations
period
through
January
Ex. I.
28,
This tolled the
2011,
District Court of Appeal denied rehearing.
when
the
First
Ex. Q.
Additionally, Petitioner, on April 15, 2011, filed a pro se
motion to correct illegal sentence pursuant to Rule 3.800(a), Fla.
R. Crim. P.
Ex. CC.
This tolled the limitations period until
Petitioner moved to voluntarily dismiss his motion, and the court
granted the motion for dismissal on April 3, 2012.
Ex. DD; Ex. EE.
The clerk filed the order on April 4, 2012.3
At this point, the limitations period began to run, and ran
for a period of 55 days, until Petitioner filed a Rule 3.800(a)
motion to correct and petition for writ of habeas corpus in the
circuit court on May 31, 2012.
Ex. FF at 1-40.
2012, the court denied the motion and petition.
mandate issued on August 8, 2013.
Ex. MM.
On September 25,
Id. at 48-80.
The
The limitations period
began to run again on August 9, 2013, and expired 310 days later on
Sunday, June 15, 2014, making his federal petition due on Monday,
June 16, 2014. Based on the foregoing, the Petition, filed on June
3
Respondents reference the date the order was signed, April
3, 2012, however, the Court will give Petitioner the benefit of the
date the clerk filed the order, April 4, 2012.
- 4 -
25, 2014, pursuant to the mailbox rule, is untimely and due to be
dismissed unless Petitioner can establish that equitable tolling of
the statute of limitations is warranted or that his second Rule
3.850
motion,
filed
on
September
19,
2013,
claiming
newly
discovered evidence, tolled the limitations period from September
19, 2013, until the mandate issued on June 6, 2014.
With regard to Petitioner's assertion that his second Rule
3.850 motion tolled the limitations period, Petitioner relies on
the
fact
that
he
filed
a
Motion
for
Postconviction
Relief
Predicated on Newly Discovery Evidence in the circuit court on
September 19, 2013, pursuant to the mailbox rule.
Ex. NN at 1-14.
Petitioner, in the motion, claimed that he was moving, pursuant to
Rule 3.850(b)(1), to vacate his conviction and sentence on the
basis of newly discovered evidence that could not have been known
by the use of due diligence until Petitioner received a document
dated June 11, 2013, from the Office of the State Attorney.
Id. at
1. The court denied the motion, not only finding that Petitioner's
allegations
did
not
meet
the
parameters
of
newly
discovered
evidence, but also that he had the opportunity to discover the
purported plea offer in question within the two-year time limit
imposed by Rule 3.850.
Id. at 19.
More particularly, the court
said:
In the instant Motion, Defendant avers
that he has recently discovered that his trial
counsel failed to convey a ten-year plea offer
from the State. He further states that had
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such a plea offer been conveyed, he would have
taken the offer rather than go to trial.
To be considered newly discovered,
evidence "must have been unknown by the trial
court, by the party, or by counsel at the time
of trial, and it must appear that defendant or
his counsel could not have known [of it] by
the use of diligence.'" Wright v. State, 857
So.2d 861, 870-71 (Fla. 2003) (quoting Jones
v. State, 591 So.2d 911, 915 (Fla. 1991)).
Newly discovered evidence must be filed within
two (2) years of the date that the evidence
could have been discovered through the use
[of] due diligence. See Parks v. State, 944
So.2d 1230, 1231 (Fla. 5th DCA 2006); Hampton
v. State, 825 So.2d 477 (Fla. 4th DCA 2002);
Murrah v. State, 773 So.2d 622, 623 (Fla. 1st
DCA 2000) (victim recantation).
Defendant's allegations do not meet the
parameters of newly discovered evidence. On
April 29, 2010, while under oath at a Rule
3.850 evidentiary hearing, trial counsel
testified that he reviewed "any potential
offers the State had made" and that Defendant
rejected any and all State offers. (Ex. E.)
Assuming arguendo that counsel did fail to
convey a ten-year offer, Defendant had the
opportunity to discover the offer in question
within the two-year time limit imposed by Rule
3.850. On July 19, 2007, Defendant filed a
petition for writ of mandamus for trial
counsel's records, in which he requested
copies of all communication from the state
attorney's office. (Ex. F.) Defendant is not
entitled to relief for this claim.
Ex. NN at 18-19 (footnotes omitted).
Of initial significance, the trial court found that the motion
did not qualify under the newly discovered evidence exception to
the time bar.4
4
See Losey v. McNeil, No. 3:08cv121/RV/EMT, 2008 WL
Rule 3.850 of the Florida Rules of Criminal Procedure
provides, in pertinent part:
- 6 -
4693139,
at
*5
(N.D.
Fla.
Oct.
21,
2008)
(citing
Pace
v.
DiGuglielmo, 544 U.S. 408, 413-14 (2005), and recognizing that a
petition filed after the time limit that does not fit within any
exception
to
that
limit,
like
the
exception, is not properly filed).
newly
discovered
evidence
Apparently, Petitioner did not
meet any sort of manifest injustice exception as the trial court
found that Petitioner was not entitled to relief and that his
motion was frivolous.
state
court's
untimeliness
ruling
exception
Id. at 19.
that
by
This Court must respect the
Petitioner
satisfying
the
failed
to
parameters
meet
of
the
newly
discovered evidence, regardless of whether the state court also
reached the merits of the claim.
See Sweet v. Sec'y, Dep't of
Corr., 467 F.3d 1311, 1315-16 (11th Cir. 2006), cert. denied, 550
U.S. 922 (2007).
(b) Time Limitations. A motion to vacate
a sentence that exceeds the limits provided by
law may be filed at any time. No other motion
shall be filed or considered pursuant to this
rule if filed more than 2 years after the
judgment and sentence become final unless it
alleges that
(1) the facts on which the claim is
predicated were unknown to the movant or the
movant's attorney and could not have been
ascertained by the exercise of due diligence,
and the claim is made within 2 years of the
time the new facts were or could have been
discovered
with
the
exercise
of
due
diligence[.]
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The Court concludes that Petitioner's untimely second Rule
3.850 motion was not properly filed and did not serve to toll the
one-year period for filing his federal petition.
Petitioner urges this Court to find that his untimely filing
of his federal Petition should be contributed to circumstances
beyond his control.
Although not a model of clarity, apparently
Petitioner is contending that he is entitled to some equitable
tolling due to the fact that the First District Court of Appeal per
curiam affirmed the denial of his Rule 3.800(a) motion on June 14,
2013, Ex. JJ, although Petitioner had been granted leave to file a
pro se brief on or before June 21, 2013.
exhibit 4.
Reply at 7, attached
Petitioner filed his pro se brief on June 17, 2013,
pursuant to the mailbox rule.
Ex. HH.
The state filed its Amended
Notice that it would not file a brief on June 28, 2013.
Ex. II.
Petitioner moved for rehearing/reconsideration, Ex. KK, but the
First District Court of Appeal denied his motion on July 23, 2013.
Ex. LL.
Of
The mandate issued on August 8, 2013.
import,
the
equitable tolling."
AEDPA
"limitations
Ex. MM.
period
is
subject
to
Cadet v. Fla. Dep't of Corr., 742 F.3d 473,
474 (11th Cir. 2014) (citing Holland v. Florida, 560 U.S. 631, 130
S.Ct. 2549, 2560 (2010)).
The two-pronged test for equitable
tolling requires a petitioner to 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, 560 U.S. at 649 (quotation marks omitted); see Downs v.
- 8 -
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).
Petitioner
bears
the
burden
to
show
extraordinary
circumstances that are both beyond his control and unavoidable with
diligence, and this high hurdle is not 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).
The
Court
concludes
that
Petitioner has not met the burden of showing that equitable tolling
is warranted.
Petitioner contends that he should be entitled to equitable
tolling because the First District Court of Appeal should not have
rendered its decision prior to June 24, 2013, allowing him to file
his brief by June 21, 2013, and then rendering its decision.
The
Court finds Petitioner's argument unavailing. After the affirmance
of the denial of the Rule 3.800 motion and the issuance of the
mandate, Petitioner had 310 days to file his federal petition.
Petitioner
was
fully
aware
that
his
motion
for
rehearing/reconsideration had been denied by the First District
Court of Appeal.
No extraordinary circumstances stood in his way
- 9 -
and prevented him from timely filing his Petition upon the issuance
of the mandate from the First District Court of Appeal.
Petitioner does not allege, and the record does not show, that
the state impeded him from filing a timely § 2254 petition during
this 310-day period. Petitioner simply failed to pursue his rights
diligently. Although Petitioner was proceeding pro se in his state
court proceedings, pro se representation alone is not a meritorious
excuse and is insufficient to warrant equitable tolling.
v. United States, 544 U.S. 295, 311 (2005).
Johnson
Lack of formal
education presents challenges, but it does not excuse a petitioner
from complying with the time constraints for filing a federal
petition.
Moore v. Bryant, No. 5:06cv150/RS/EMT, 2007 WL 788424,
at *2-*3 (N.D. Fla. Feb. 12, 2007) (not reported in F.Supp.2d)
(Report and Recommendation), report and recommendation adopted by
the District Court on March 14, 2007.
Under these circumstances, the Court is not persuaded that
Petitioner acted diligently. The Court finds that he has not shown
that he is entitled to extraordinary relief.
Equitable tolling is
a remedy that should be used sparingly, and Petitioner has failed
to show that he exercised due diligence.
Petitioner's has failed
to show an extraordinary circumstance, and he has not met the
burden of showing that equitable tolling is warranted.
Based on the record before the Court, Petitioner has not
presented any justifiable reason why the dictates of the one-year
limitations period should not be imposed upon him.
- 10 -
He had ample
time to exhaust state remedies and prepare and file a federal
petition.
Petitioner fails to demonstrate he is entitled to
equitable tolling or that he has new evidence establishing actual
innocence.
Therefore, this Court will dismiss the case with
prejudice pursuant to 28 U.S.C. § 2244(d).
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition and the case are DISMISSED with prejudice.
2.
The Clerk shall enter judgment dismissing the Petition
with prejudice and dismissing the case with prejudice.
3.
The Clerk shall close the case.
4.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.5
has
determined
that
a
certificate
of
Because this Court
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
5
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
certificate of appealability.
- 11 -
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 20th day of
January, 2017.
sa 1/6
c:
Philip W. Jones
Counsel of Record
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