BURNEY v. CREWS
Filing
18
ORDER dismissing with prejudice 1 Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus as untimely; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 4/28/2017. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MORRIS T. BURNEY,
Petitioner,
v.
Case No. 3:14-cv-860-J-32JRK
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
_______________________________
ORDER
I. Status
Petitioner initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus (Doc. 1) (Petition) and a Memorandum in Support of the Petition
(Doc. 2) (Memorandum). He challenges a 1988 state court (Duval County, Florida) judgment
of conviction for murder and kidnapping, for which he is serving life imprisonment.
Respondents contend that the Petition was untimely filed, and therefore, this case must be
dismissed. See Motion to Dismiss Petition for Writ of Habeas Corpus (Doc. 14) (Motion).1
Petitioner filed a Reply to State’s Motion to Dismiss (Doc. 17) (Reply). The case is ripe for
review.2
1
The Court cites to the exhibits attached to the Motion (Doc. 14-1) as “Ex.”
2
“In deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550
U.S. 465, 474 (2007) (citation omitted). “It follows that if the record refutes the applicant’s
factual allegations or otherwise precludes habeas relief, a district court is not required to hold
an evidentiary hearing.” Id. The pertinent facts of this case are fully developed in the record
II. One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (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 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).
before the Court, and “[t]he record provide[s] no basis for further inquiry” regarding equitable
tolling. Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006). Thus, an evidentiary hearing
will not be conducted.
2
III. Analysis3
There is no dispute that Petitioner’s conviction in this case became final before
AEDPA’s effective date (April 24, 1996). Thus, he had until April 24, 1997 to file a federal
habeas corpus petition. Between the effective date of AEDPA and the expiration of the oneyear limitations period, Petitioner did not have any properly filed post-conviction motions or
other requests for collateral relief pending. Thus, Petitioner’s deadline to file a federal habeas
petition expired on April 24, 1997, without the filing of any motions that would toll that time.
While Petitioner filed motions after the expiration of the one-year limitations period, such
filings did not toll the limitations period because the period had already expired. See Sibley
v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating 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 [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.”).
“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 establishes that he is entitled
3
Respondents detail the procedural history in the Motion at 2-5. Because there is no
dispute that Petitioner’s conviction became final before AEDPA’s effective date, the Court
will not repeat the procedural history here.
3
to equitable tolling.” Damren v. Florida, 776 F.3d 816, 821 (11th Cir. 2015). “[E]quitable
tolling is an extraordinary remedy ‘limited to rare and exceptional circumstances and
typically applied sparingly.’” Cadet v. State of Fla. Dep’t of Corr., - - - F.3d - - -, 2017 WL
727547, at *3 (11th Cir. Feb. 24, 2017) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th
Cir. 2009)). To warrant the application of this extreme remedy, 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)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “A habeas petitioner is not entitled
to equitable tolling simply because he alleges constitutional violations at his trial or
sentencing.” Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014)
(citation omitted). “The petitioner has the burden of establishing his entitlement to equitable
tolling; his supporting allegations must be specific and not conclusory.” Id. (citation omitted);
see Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (“[A]n inmate bears a strong
burden to show specific facts to support his claim of extraordinary circumstances and due
diligence.” (citation omitted)).
Petitioner does not contend that he is entitled to equitable tolling. See Reply at 2
(“Petitioner is not seeking equitable tolling.”). Rather, he argues that because the trial court
lacked subject matter jurisdiction, his conviction is unconstitutional and he should be
immediately released. See id. at 2-5. Though he states that he does not seek equitable
tolling, after reviewing the file, the Court finds that he is not entitled to it. He does not allege
4
that he was diligently pursuing his rights or that an extraordinary circumstance stood in his
way.4
To the extent Petitioner argues that he is actually innocent, the Court finds that he
has not stated a colorable claim of actual innocence. “[A]ctual innocence, if proved, serves
as a gateway through which a petitioner may pass whether the impediment is a procedural
bar . . . or, as in this case, expiration of the statute of limitations.” McQuiggin v. Perkins, 133
S. Ct. 1924, 1928 (2013). To avoid the one-year limitations period based on actual
innocence, a petitioner must “present new reliable evidence . . . that was not presented at
trial” and “show that it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt in light of the new evidence.” Rozzelle v. Sec’y,
Fla. Dep’t of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012) (quotations and citations omitted);
see Schlup v. Delo, 513 U.S. 298, 327 (1995) (finding that to make a showing of actual
innocence, “a petitioner must show that it is more likely than not that no reasonable juror
would have found [the] petitioner guilty beyond a reasonable doubt”). Petitioner has not
offered any new or credible evidence to sustain an assertion of actual innocence.
Moreover, his argument that the trial court did not have subject matter jurisdiction and
thus his judgment is void is a claim of legal innocence not factual innocence. See Rozzelle,
672 F.3d at 1013 (recognizing that “[a]ctual innocence means factual innocence, not mere
legal insufficiency” (quotations and citations omitted)); see generally Jones v. Warden, - - -
4
Petitioner’s state court docket reflects no activity between December 1992 (mandate
from the appellate court) and July 2009 (a request for documents). Petitioner filed a motion
pursuant to Florida Rule of Criminal Procedure 3.800(a) in April 2010 (Ex. 13), approximately
13 years after the one-year limitations period expired.
5
F. App’x - - -, 2017 WL 1149094, at *2 (11th Cir. Mar. 28, 2017) (finding a petitioner’s
“argument that the state trial court lacked jurisdiction presents, at most, a claim of legal
innocence, not factual innocence, and does not excuse his failure to file his federal petition
sooner”). Petitioner’s argument is also without merit.5
Upon review of the record, the Court finds that Petitioner has failed to show an
adequate reason why the dictates of the one-year limitations period should not be imposed
upon him. Therefore, this case will be dismissed with prejudice as untimely.
Accordingly, it is
ORDERED:
1.
The Petition (Doc. 1) is DISMISSED with prejudice as untimely.
2.
The Clerk shall enter judgment dismissing the Petition with prejudice and close
the file.
3.
If Petitioner appeals the dismissal of the Petition, the Court denies a certificate
of appealability.6 Because this Court has determined that a certificate of appealability is not
5
Petitioner asserts that the trial court lacked subject matter jurisdiction because the
statutes under which he was convicted did not contain enacting clauses. See Petition at 5;
Reply at 2-5. Petitioner’s assertion is inaccurate. See Ch. 87-243, § 6, pp. 1626, 1636, Laws
of Florida; Ch. 77-174, pp. 719, 886, Laws of Florida.
6
This Court should issue a certificate of appealability only if 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, 336 (2003) (quoting Slack, 529 U.S. at 484). “Where a
district court has rejected the constitutional claims on the merits, . . . [t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
6
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 28th day of April, 2017.
JAX-3 4/26
c:
Morris T. Burney, #113345
Counsel of Record
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. However, “[w]hen the
district court denies a habeas petition on procedural grounds . . . a [certificate of
appealability] should issue when the prisoner shows, at least, 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. After consideration of the record as a whole, the Court will deny a
certificate of appealability.
7
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