Vance v. Secretary, Department of Corrections et al
Filing
20
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 5/1/2017. (JLD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GREGORY VANCE,
Petitioner,
v.
Case No. 3:14-cv-944-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). He is proceeding on an Amended Petition (Doc.
7) (Amended Petition). He challenges a 2005 state court (Duval County, Florida) judgment
of conviction for petit theft, armed kidnapping, sexual battery of a person twelve years of age
or older, aggravated battery, and dealing in stolen property. 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. 17) (Motion).1 Petitioner did not file a reply, even
after being directed to file one, and the time in which to do so has passed. The case is ripe
for review.2
1
The Court cites to the exhibits attached to the Motion (Doc. 17-1 to 17-3) 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
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).
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
III. Analysis
On February 8, 2005, the state court entered judgment against Petitioner. Ex. A.
Petitioner, through counsel, filed a notice of appeal. Ex. B. On May 18, 2006, the First District
Court of Appeal (DCA) per curiam affirmed the judgment of conviction without entering a
written opinion. Ex. C. Petitioner’s judgment became final ninety days later on August 16,
2006. 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)).3 Therefore, the one-year period of limitations
began to run on August 17, 2006, and it continued to run for 96 days until November 21,
2006, when Petitioner filed a state court habeas petition alleging ineffective assistance of
appellate counsel. Ex. E. The First DCA denied the petition on the merits on January 18,
2007. Ex. F. Petitioner filed a motion for rehearing and clarification, Ex. G, which was denied
on March 22, 2007, Ex. H. Petitioner’s federal limitations period continued to run the
following day (March 23, 2007). He had 269 days remaining in the one-year limitations
period. The period expired on December 17, 2007, without the filing of a tolling motion.
Indeed, Petitioner waited more than 4 months after the period expired to file another motion
in state court. See Ex. I (motion to correct illegal sentence filed May 9, 2008). While
3
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.”
3
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.4 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
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
4
Respondents provide the procedural history of each motion filed after the expiration of
the one-year limitations period. See Motion at 2-4.
4
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 allege that he was diligently pursuing his rights or that an
extraordinary circumstance stood in his way. After reviewing the file, the Court finds that he
is not entitled to equitable tolling. He also has not offered any new or credible evidence to
sustain an assertion of actual innocence. See Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d
1000, 1011 (11th Cir. 2012) (stating that 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”
(quotations and citations omitted)).
In his Amended Petition, under the “Timeliness of Petition” section, Petitioner cites
Trevino v. Thaler, 133 S. Ct. 1911 (2013), and Martinez v. Ryan, 132 S. Ct. 1309 (2012),
and apparently asserts that his one-year limitations period runs from the dates of these
decisions under 28 U.S.C. § 2244(d)(1)(C). See Amended Petition at 23. The Eleventh
Circuit recently explained these two decisions:
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
5
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.”). It follows that Trevino, which merely extended Martinez’s rule, also did
not announce a new rule of constitutional law. Moreover, neither Trevino nor Martinez
discusses the one-year limitations period or provides 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 holding “that the reasoning of the Martinez rule
6
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 these two cases is misplaced.
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.5 Because this Court has determined that a certificate of appealability is not
5
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
7
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 1st day of May, 2017.
JAX-3 4/28
c:
Gregory Vance, #874362
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.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?