Netting v. State Of Florida et al

Filing 31

ORDER denying [ 17 motion to dismiss; Respondents shall provide the Court with a copy of the transcript of the state court evidentiary hearing by February 21, 2017; Respondents shall respond to the Petition by March 14, 2017; Petitioner shall file his reply by March 31, 2017. Signed by Judge Brian J. Davis on 1/24/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

WILLIAM J. NETTING, JR.,
Petitioner,
v.

Case No. 3:14-cv-872-J-39JBT

SECRETARY, DOC, et al.,
Respondents.
ORDER
I.

STATUS

Petitioner challenges a 2008 (Duval County) conviction for
robbery. Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus
by a Person in State Custody (Petition) (Doc. 1) at 1. He filed the
Petition on July 21, 2014, pursuant to the mailbox rule.1
raises eleven grounds in the Petition.

He

Respondents filed a Motion

to Dismiss (Response) (Doc. 17), and they calculate that the
Petition is untimely filed.

In support of the Response, they

submitted Exhibits (Doc. 21).2

Petitioner filed a Reply (Doc. 27).

1

The Court gives pro se inmate petitioners the benefit of
the mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988). See
28 U.S.C. § 2244(d). In this instance, the Petition was provided
to the prison authorities for mailing and stamped on July 21, 2014.
Petition at 48. See Rule 3(d), Rules Governing Section 2254 Cases
in the United States District Courts ("If an institution has a
system designed for legal mail, the inmate must use that system to
receive the benefit of this rule.").
2

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

See Order (Doc. 6).
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

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.
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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).
To adequately address Respondents' contention that Petitioner
has failed to comply with the limitations period, the Court will
provide a brief procedural history.
amended information with robbery.
verdict of guilty as charged.

Petitioner was charged by

Ex. A at 17.

A jury returned a

Id. at 193; Ex. D at 297.

On March 26, 2008, the trial court sentenced Petitioner to 15
years in prison.
F.

Ex. B at 275.

Petitioner appealed.

Ex. E; Ex.

On March 12, 2009, the First District Court of Appeal affirmed

per curiam.

Ex. G.

The mandate issued on March 30, 2009.

Id.

The conviction became final on June 10, 2009 (90 days after March
12, 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 limitation period began to run on June 11, 2009, and ran
for a period of 222 days, until Petitioner, on January 19, 2010,
filed a Rule 3.850 motion for post conviction relief in the circuit
court.3

Ex. I at 1-58.

This post conviction motion tolled the

3

The Court notes that Respondents based their calculations on
the filing date, January 25, 2010, rather than the date that the
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limitations period until the mandate issued on September 27, 2012.
Ex. M.

The limitations period began to run on September 28, 2012,

and ran for a period of 69 days, until Petitioner file a second
Rule 3.850 motion on December 6, 2012.4

Ex. N.

This motion tolled

the limitations period, and it remained tolled until the mandate
issued

on

December

31,

2013.5

Ex.

S.

The

petition

for

discretionary review, Ex. JJ, filed December 31, 2013, tolled the

document was date-stamped as provided to the institution for
mailing. As stated previously, this Court will give Petitioner the
benefit of the mailbox rule. Thus, the Court rejects Respondents'
calculations to the extent Respondents fail to give Petitioner the
benefit of the mailbox rule.
4

Again, the Court does not accept Respondents' calculation as
they did not give Petitioner the benefit of the mailbox rule and
referenced the filing date of February 28, 2013, instead of the
"Legal Mail" date, December 6, 2012, stamped on the motion. Ex. N
at 1.
5

Of note, successive state court filings constitute properly
filed applications for tolling purposes. Weekley v. Moore, 244
F.3d 874, 876 (11th Cir. 2001). If found untimely by the state
court, however, this Court would give deference to the state court
finding and not consider the post conviction motion for tolling
purposes under 28 U.S.C. § 2244(d)(2). Webster v. Moore, 199 F.3d
1256, 1259 (11th Cir.) (per curiam), cert. denied, 531 U.S. 991
(2000). See Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311, 1318
(11th Cir. 2006) (even if state court denies on alternative
grounds, if found untimely, it is not properly filed and does not
toll), cert. denied, 550 U.S. 922 (2007); Ousley v. Sec'y for the
Dep't of Corr., 269 F. App'x 884, 888 (11th Cir. 2008) (per curiam)
(second Rule 3.850 motion was untimely under state law and does not
toll
the
limitations
period);
Maloy
v.
Crews,
No.
3:13cv486/LAC/EMT, 2014 WL 3805575, at *3 (N.D. Fla. Aug. 1, 2014)
(Not Reported in F.Supp. 3d) (If untimely as well as successive,
the Rule 3.850 motion was not properly filed and failed to qualify
for tolling purposes). If found untimely, "that is the end of the
matter for purposes of § 2244(d)(2)." Ousley, 269 F. App'x at 888
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005)).
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limitations period until it was dismissed as moot on January 17,
2014.

Ex. KK.

See Matos v. Sec'y, Fla. Dep't of Corr., 603 F.

App'x 763, (11th Cir. 2015) (per curiam) (counting the period from
the date the Florida Supreme Court declined to accept jurisdiction
of an appeal).

The petition for discretionary review, filed on

December 31, 2013, also tolled the limitations period.
The parties briefed jurisdiction.

Ex. MM; Ex. NN.

Ex. LL.

On June 16,

2014, the Supreme Court of Florida declined to accept jurisdiction
and denied the petition for review. Ex. OO. Thus, the limitations
period began to run again on June 17, 2014.

After running the

final 74 days, the one-year limitations period expired on Saturday,
August 30, 2014.6

The federal petition was due to be filed by

Tuesday, September 2, 2014.7

Petitioner timely filed his federal

petition on July 21, 2014.

6

On April 24, 2013, Petitioner filed a petition for belated
appeal that was treated as a petition for writ of habeas corpus
alleging ineffective assistance of appellate counsel. Ex. T; Ex.
W; Ex. X; Ex. Y. The First District Court of Appeal per curiam
denied the petition on August 23, 2013. Ex. Z. He had fifteen
days from the August 23, 2013 order to file a motion for rehearing,
but did not file one. See Fla. R. App. P. 9.330(a). Thus, he had
until Monday, September 9, 2013 to file a motion for rehearing (the
fifteen-day period expired on Saturday, September 7, 2013). The
pendency of this petition is subsumed within the period of the
pendency of the second Rule 3.850 motion. In addition, Petitioner
filed a petition for discretionary review on September 17, 2013,
Ex. PP, and the Supreme Court of Florida dismissed the petition on
October 15, 2013, finding it was without jurisdiction. Ex. QQ.
Its pendency is also subsumed within the period of the pendency of
the second Rule 3.850 motion.
7

Monday, September 1, 2014, was a federal holiday.
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Of note, Petitioner's Petition for Writ of Mandamus did not
serve to toll the limitation period.

Ex. AA; Ex. CC; Ex. DD; Ex.

EE; Ex. FF; Ex. GG; Ex. HH; Ex. II.

A discovery motion does not

toll AEDPA's limitation period, and neither does a Rule 3.853, Fla.
R. Crim P. motion for DNA testing.

Brown v. Sec'y for the Dep't of

Corr., 530 F.3d 1335, 1337-38 (11th Cir. 2008).

These types of

motions are not direct requests for judicial review, nor do they
provide the circuit court with authority to order relief from
judgment.

Espinosa v. Sec'y, Dep't of Corr., 804 F.3d 1137, 1141

(11th Cir. 2015) (citation omitted).
This Court previously rejected the contention that a mandamus
petition seeking an order from the trial court directing counsel to
provide

Petitioner

with

free

constituted a tolling motion.

copies

of

records

and

files

Ramirez v. Sec'y, DOC, No. 3:13-cv-

979-J-39JRK, 2015 WL 6704312, at *3 (M.D. Fla. Nov. 3, 2015) (Not
Reported in F.Supp.3d).

In this type of proceeding, the state

court would lack the authority to order relief from the conviction
and sentence.

A motion/petition that does not directly challenge

an underlying conviction or sentence will not trigger the tolling
provisions of AEDPA. Phillips v. Culliver, No. 06-00816-KD-B, 2009
WL 3414280, at *4 n.7 (S.D. Ala. Oct. 16, 2009) (Not Reported in
F.Supp.2d).

It may lead to material that might help in developing

a challenge, but it is not a collateral attack.

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Based on all of the foregoing, the Petition, filed on July 21,
2014,

pursuant

to

the

mailbox

rule,

is

timely.

Therefore,

Respondents' Motion to Dismiss is due to be denied.
Accordingly, it is now
ORDERED:
1.

Respondents' Motion to Dismiss (Doc. 17) is DENIED.

2.

Respondents shall provide the Court with a copy of the

transcript of the state court evidentiary hearing (conducted on May
17, 2011, June 17, 2011, and June 30, 2011) by February 21, 2017.
3.

Respondents shall respond to the Petition by March 14,

4.

Petitioner shall file his reply by March 31, 2017.

2017.

DONE AND ORDERED at Jacksonville, Florida, this 24th day of
January, 2017.

sa 1/19
c:
William J. Netting, Jr.
Counsel of Record
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