Gary v. Secretary, Department of Corrections et al
Filing
14
ORDER dismissing 1 the Petition with prejudice as untimely; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 6/30/2017. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TONY GARY,
Petitioner,
v.
Case No. 3:14-cv-882-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) on July 22, 2014.1 He challenges a 2002 state
court (Duval County, Florida) judgment of conviction for home invasion robbery and grand
theft auto. He is serving life imprisonment. Respondents contend that the Petition was
untimely filed, and therefore, this case must be dismissed. See Motion to Dismiss (Doc. 8)
(Motion).2 Petitioner filed a Reply (Doc. 10) (Reply) and a Memorandum of Law in Support
1
Giving Petitioner the benefit of the mailbox rule, the Court finds the Petition was filed
on the date he 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 Petitioner the benefit of the mailbox rule
with respect to his pro se filings in state court.
2
The Court cites to the exhibits attached to the Motion as “Ex.”
of his Actual Innocence Claim (Doc. 12) (Memorandum) with an Appendix (Doc. 13). The
case is ripe for review.3
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.
3
“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
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
(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).
III. Analysis
At the conclusion of Petitioner’s state court criminal trial, the jury found him guilty. Ex.
C at 54-55. On March 21, 2002, the state court entered judgment against him. Id. at 80-86.
Petitioner, through counsel, filed a notice of appeal. Id. at 96. On October 21, 2003, the First
District Court of Appeal (DCA) per curiam affirmed the judgment of conviction without
entering a written opinion. Ex. I. Petitioner’s judgment became final ninety days later on
January 19, 2004. See Clay v. United States, 537 U.S. 522 (2003); Close v. United States,
336 F.3d 1283, 1285 (11th Cir. 2003) (“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.” (citing Supreme Court Rule 13.3)).4 Therefore, the one-year period of
limitations began to run on January 20, 2004.
The limitations period ran for 211 days until August 18, 2004, when Petitioner filed a
post-conviction motion to correct an illegal sentence. Ex. T at 0-11.5 The motion was denied
4
Supreme Court Rule 13.3 states, in pertinent part: “The time to file a petition for a writ
of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and
not from the issuance date of the mandate.”
5
The state trial court’s docket reflects that on about March 1, 2004, and July 20, 2004,
Petitioner filed motions to compel the disclosure of public records. See State of Florida v.
Gary, No. 16-2001-CF-9154 (Fla. 4th Cir. Ct.). Also, on about April 8, 2004, Petitioner filed
3
on October 20, 2004. Id. at 12-23. Petitioner appealed, and the First DCA per curiam
affirmed with the mandate issuing on February 23, 2005. Exs. U, V. In the meantime,
Petitioner filed a petition in the First DCA alleging ineffective assistance of appellate counsel.
Ex. X. The petition was denied on the merits, and rehearing was denied on March 18, 2005.
Exs. Y, AA. The limitations period was tolled through March 18, 2005.
The following day, March 19, 2005, the period continued to run, and it ran for 124
days until July 21, 2005, when Petitioner filed a post-conviction motion pursuant to Florida
Rule of Criminal Procedure 3.850. Ex. CC at 1-66. The trial court denied the motion on
March 15, 2006. Id. at 67-146. Petitioner appealed; the First DCA per curiam affirmed
without a written opinion; and the mandate issued on January 30, 2007.6 Exs. FF, II.
After the First DCA’s mandate issued on January 30, 2007, Petitioner filed a petition
for writ of certiorari in an attempt to invoke the discretionary jurisdiction of the Florida
a petition for writ of certiorari in the First DCA, requesting an order compelling the state to
provide Petitioner with certain public records. Ex. L. Then on about April 13, 2004, Petitioner
filed a mandamus petition against the Office of the Public Defender apparently seeking
copies of records from his case. See Gary v. Office of the Public Defender for the Fourth
Judicial Circuit, 1D04-1536 (Fla. 1st DCA 2004); Gary v. Office of the Public Defender for
the Fourth Judicial Circuit, 877 So. 2d 769 (Fla. 1st DCA 2004). Because these filings were
not collateral attacks on his conviction or sentence, they did not toll AEDPA’s one-year
limitations period. See Brown v. Sec’y for Dep’t of Corr., 530 F.3d 1335, 1338 (11th Cir.
2008) (recognizing that a discovery motion does not toll AEDPA’s one-year limitations
period); see also Davis v. Barrow, 540 F.3d 1323, 1324 (11th Cir. 2008) (finding that a
motion that “did not raise any legal arguments or otherwise attack the legality of his
sentence” was not a tolling motion for purposes of the one-year limitations period).
6
Petitioner filed a mandamus petition in the First DCA on about December 28, 2005. See
Gary v. State of Florida, No. 1D05-6151 (Fla. 1st DCA). The First DCA denied the petition
on May 3, 2006. This proceeding had no effect on the one-year limitations period because
Petitioner’s post-conviction appeal remained pending through January 30, 2007.
4
Supreme Court; however, the petition did not toll the one-year limitations period because it
was not a “properly filed” petition. Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (“[A]n application
is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws
and rules governing filings. These usually prescribe, for example, the form of the document,
the time limits upon its delivery, the court and office in which it must be lodged, and the
requisite filing fee. . . . If, for example, an application is erroneously accepted by the clerk of
a court lacking jurisdiction, or is erroneously accepted without the requisite filing fee, it will
be pending, but not properly filed.”). “[A] per curiam affirmance decision rendered without
opinion cannot be reviewed by the state supreme court.” Harmon v. Barton, 894 F.2d 1268,
1272 (11th Cir. 1990). Therefore, Petitioner’s attempt to invoke the discretionary jurisdiction
of the Florida Supreme Court had no effect on his federal one-year limitations period,7 and
the period expired on March 2, 2007 (30 days after the First DCA’s January 30, 2007
mandate). See Davis v. Sec’y, Dep’t of Corr., No. 6:12-cv-1247-Orl-36GJK, 2013 WL
1786639, at *2 n.3 (M.D. Fla. Apr. 26, 2013) (unpublished) (“[The p]etitioner’s attempt to
invoke the discretionary jurisdiction of the Florida Supreme Court was not a properly filed
application for state post-conviction relief and did not operate to toll [the p]etitioner’s federal
limitations period because such relief is not available under Florida law” (citation omitted)).8
7
The Florida Supreme Court dismissed Petitioner’s attempt to invoke its discretionary
jurisdiction on February 7, 2007. See Gary v. State of Florida, No. SC07-187 (Fla. 2007).
Even including this additional time, the one-year limitations period would have expired on
March 9, 2007, without the filing of an additional tolling motion. Thus, the Petition would still
be considered untimely.
8
Petitioner filed a successive post-conviction motion on January 16, 2007. Ex. NN at 5859. In denying and dismissing the motion as untimely, the circuit court specifically found that
5
While Petitioner filed several motions after the expiration of the one-year period, such
motions did not toll the time period because there was no time left to toll.9 See Sibley v.
Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating that 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”); 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.”). The Court has reviewed the state trial and appellate courts’ dockets
and even giving Petitioner the benefit of every doubt, his Petition filed on July 22, 2014, is
untimely.
“[a]ll of the facts on which the claims [in the motion] are predicated were known to the
movant or his attorney, or could have been ascertained by the exercise of due diligence.” Id.
at 58. Petitioner appealed and the First DCA entered a per curiam affirmance on October 4,
2007, with the mandate issuing on December 27, 2007. Ex. QQ; see Gary v. State of Florida,
1D07-1876 (Fla. 1st DCA).
“An application for postconviction relief filed in state court is not ‘properly filed’ if it is
untimely.” Walton v. Sec’y, Fla. Dep’t of Corr., 661 F.3d 1308, 1310 (11th Cir. 2011) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005)); see Hernandez-Alberto v. Sec’y, Fla. Dep’t
of Corr., 840 F.3d 1360, 1366 (11th Cir. 2016) (“The key takeaway from Pace is that an
untimely application was not, and could not ever have been considered, properly filed.”);
Gorby v. McNeil, 530 F.3d 1363, 1368 (11th Cir. 2008) (“[W]e are satisfied that [the
p]etitioner’s second successive motion was untimely under Florida law. Accordingly, his
motion was not ‘properly filed’ for purposes of AEDPA’s tolling provision.”). Thus, this
untimely motion did not toll the one-year limitations period.
9
Respondents detail the procedural history of each motion filed after the expiration of the
one-year limitations period. See Motion at 3-7.
6
“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
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., 853 F.3d 1216, 1221 (11th
Cir. 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)). “The petitioner has the burden of establishing his
entitlement to equitable tolling; his supporting allegations must be specific and not
conclusory.” Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014)
(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 asserts the limitations period did not begin to run until February 3, 2014.
This calculation is inaccurate. To the extent Petitioner relied to his detriment on a
miscalculation of the one-year limitations period, such a miscalculation is insufficient to
warrant equitable tolling. See Cadet, 853 F.3d at 1232; Helton v. Sec’y for Dep’t of Corr.,
259 F.3d 1310, 1313 (11th Cir. 2001); see also Johnson v. United States, 544 U.S. 295, 311
7
(2005)10 (“We have never accepted pro se representation alone or procedural ignorance as
an excuse for prolonged inattention when a statute’s clear policy calls for promptness.”);
Perry v. Sec’y, Dep’t of Corr., No. 6:14-cv-262-Orl-31TBS, 2016 WL 345526, at *3 (M.D. Fla.
Jan. 28, 2016) (unpublished) (finding that “[f]actors such as a lack of access to a law library,
lack of legal papers, ignorance of the law, lack of education, and pro se status are not
considered extraordinary circumstances that would excuse an untimely habeas petition”
(citations omitted)).
Insofar as Petitioner argues that he is entitled to equitable tolling because his case
“ended in a miscarriage of justice” and his counsel’s errors rendered counsel ineffective, he
is not entitled to relief. Petitioner asserts that he is actually innocent of the grand theft auto
conviction. The information charged Petitioner with robbery on June 15, 2001, and grand
theft auto on June 18, 2001. Ex. C at 11-12. When instructing the jury, the trial judge stated,
“The state must prove the crime was committed on June 15th, 2001.” Ex. D at 269.
Petitioner claims that the trial judge effectively amended the information and thus Petitioner
was convicted of a crime that was not charged. See Memorandum at 2-4, 12. This is
essentially ground one in the Petition; the only ground on which he challenges his
conviction. See Petition at 17-19.
“[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
10
The general principles governing equitable tolling apply equally to § 2254 petitions and
§ 2255 motions. See generally Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009)
(“We have also recognized that the legal principles applicable to § 2254 proceedings
generally apply to § 2255 motions to vacate.” (citations omitted)).
8
statute of limitations.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). To avoid the oneyear 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 evidence to sustain an assertion of actual
innocence. Indeed, his assertion regarding the date in the jury instructions and the date in
the information is not “new” as that alleged error occurred during the trial and could have
been reasonably discovered at that time.
In any event, at trial, the victim testified that the individual who broke into her house
on June 15, 2001, took, among other things, her car keys, and drove off in her vehicle that
day. Ex. D at 39, 43-44, 49. The victim could not identify Petitioner in a photo lineup, id. at
132, but she described the individual and told the investigating officers that he wore a “[p]ink
or red or reddish pink” backpack. Id. at 53. A witness (Charles Irvin) testified that on June
18, 2001, he met Petitioner, and Petitioner “rented” the victim’s vehicle to Irvin and Irvin’s
friend (Curtis Williams). Id. at 74-84. Irvin further testified that he dropped Petitioner off at
a house and Petitioner told Irvin to return the vehicle to that house at a certain time. Id. at
79. That evening, police officers stopped Irvin and Williams in the stolen vehicle and
questioned them. Irvin showed the officers where he had previously left Petitioner. Id. at 819
83. The officers canvassed the area and located a red backpack. Id. at 101-04. Inside the
backpack were several items, including two ashtray covers. Id. at 105-06. The ashtray
covers were of the same type missing from the stolen vehicle. Id. at 107. The house at which
the backpack was located belonged to Petitioner’s sister. Id. at 115, 117, 130-31, 181.
An investigating detective testified that Petitioner confessed to the robbery and grand
theft during his interview. Id. at 139-41. In the presence of the detective and at the
detective’s request, Petitioner wrote an apology letter (a copy of which was admitted into
evidence). Id. at 142. He addressed the letter to “the elderly woman with the walker and little
dog,” and explained that “it was never [his] intention to hurt or harm [her].” Id. at 144. The
detective testified at trial that he did not provide Petitioner with any details of the crimes. Id.
at 140. About a month after his interview with the detective, Petitioner wrote another letter
to the victim. Id. at 149-50. Petitioner took the stand at his trial and professed his innocence.
Id. at 194-217. He testified that he wrote the apology letter because the detective asked him
to do so. Id. at 209-14.
Upon review of the record, the Court finds that Petitioner has not met his burden of
showing “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, 672 F.3d at 1011.
Petitioner cannot overcome the one-year limitations based on his alleged actual innocence.
Finally, in the Reply, Petitioner cites to Martinez v. Ryan, 132 S. Ct. 1309 (2012), and
apparently asserts that his one-year limitations period runs from the date of this decision
under 28 U.S.C. § 2244(d)(1)(C). The Eleventh Circuit recently explained:
10
In Martinez, the U.S. Supreme Court enunciated a narrow
exception to the general rule that the lack of an attorney or
attorney error in state post-conviction proceedings does not
establish cause to excuse the procedural default of a
substantive claim. 566 U.S. at 8, 13-14, 132 S.Ct. at 1315,
1318. The Supreme Court, however, set strict parameters on
the application of this exception. It applies only where (1) state
law requires a prisoner to raise ineffective-trial-counsel claims
during an initial collateral proceeding and precludes those
claims during direct appeal; (2) the prisoner failed to properly
raise ineffective-trial-counsel claims during the initial collateral
proceeding; (3) the prisoner either did not have counsel or his
counsel was ineffective during those initial state collateral
proceedings; and (4) failing to excuse the prisoner’s procedural
default would result in the loss of a “substantial”
ineffective-trial-counsel claim. Id. at 14, 132 S. Ct. at 1318; see
also Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014)
(setting forth the Martinez requirements). The Supreme Court
later extended Martinez’s rule to cases where state
procedures, as a practical matter, make it “virtually impossible”
to actually raise ineffective-trial-counsel claims on direct
appeal. Trevino, 569 U.S. at - - - , 133 S.Ct. at 1918-21.
Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017).
“Martinez did not announce a new rule of constitutional law” and did not affect the
triggering date in § 2244(d)(1)(C). Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d 940, 945
(11th Cir. 2014); see Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1262 (11th Cir.
2014) (“The ‘constitutional right’ triggering event in § 2244(d)(1)(C) is also inapplicable to
[the petitioner’s] Martinez-based claims because Martinez did not announce a new rule of
constitutional law.”). Moreover, Martinez did not discuss the one-year limitations period or
provide a basis for the tolling of that period. See Arthur v. Thomas, 739 F.3d 611, 630-31
(11th Cir. 2014) (recognizing that “[a]t no point in Martinez or Trevino did the Supreme Court
mention the ‘statute of limitations,’ AEDPA’s limitations period, or tolling in any way” and
11
holding “that the reasoning of the Martinez rule does not apply to AEDPA’s limitations period
in § 2254 cases or any potential tolling of that period”); see also Lambrix, 756 F.3d at 1262
(A petitioner “cannot seek equitable tolling of the limitations period based on Martinez
because we have rejected the notion that anything in Martinez provides a basis for equitably
tolling the filing deadline.” (internal quotations and citations omitted)). Petitioner’s reliance
on Martinez is misplaced.
In sum, the Petition is untimely and Petitioner has failed to show an adequate reason
why the dictates of the one-year limitations period should not be imposed upon him.
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.11 Because this Court has determined that a certificate of appealability is not
11
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
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
12
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 30th day of June, 2017.
JAX-3 6/26
c:
Tony Gary, #276083
Counsel of Record
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.
13
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