Rashard v. Crews et al

Filing 19

ORDER dismissing 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 1/17/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
AARON JAMES RASHARD,
Petitioner,
vs.

Case No. 3:14-cv-1069-J-39JRK

SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner initiated this action by filing a pro se Petition
(Petition) (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on September 2, 2014.1
(Duval

County)

judgment

of

He challenges a 2010 state court
conviction

for

sale

of

cocaine,

burglary, dealing in stolen property, and false verification of
ownership on pawnbroker transaction form.

Respondents, in their

Response to Petition for Habeas Corpus (Response) (Doc. 14),2 argue
that the Petition must be dismissed as untimely.

Petitioner filed

a Reply to the State's Response (Reply) (Doc. 18). See Order (Doc.
5).

1

The Court gives pro se inmate petitioners the benefit of the
mailbox rule, see Houston v. Lack, 487 U.S. 266, 276 (1988) (filed
on the date he signed it and presumably handed it to prison
authorities for mailing to this Court).
In this instance, the
Petition is dated September 2, 2014, and the certification of the
date provided for mailing is September 2, 2014. See 28 U.S.C. §
2244(d).
2

The Court hereinafter refers to the Exhibits (Docs. 14 & 15)
submitted in support of the Response as "Ex."

The Antiterrorism and Effective Death Penalty Act (AEDPA)
provides:
(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).

2

On November 18, 2009, Petitioner was charged by information
with one count of sale or delivery of cocaine (case no. 2009-CF14105).

Ex. A at 1.

He was also charged by information with

burglary (structure/conveyance), dealing in stolen property, and
false verification of ownership on pawnbroker transaction form
(less than $300 received) (case no. 2009-CF-14106).

Ex. B at 1-2.

The state filed notices of intent to classify Petitioner as an
habitual felony offender.

Ex. A at 5; Ex. B at 8.

Petitioner pled

guilty to the charge of sale or delivery of cocaine.

Ex. M.

He

entered into a negotiated plea of guilty to the remaining charges.
Ex. B at 13-14.
Judgment was entered on August 4, 2010, and Petitioner was
sentenced to fifteen years as a habitual felony offender in case
no. 2009-CF-14105, and to concurrent terms of ten years each as a
habitual felony offender, also concurrent to the fifteen-year
sentence, in case no. 2009-CF-14106.
22.

Direct appeals were not taken.

Ex. A at 24-29; Ex. B at 15Thus, his judgment became

final thirty days later on September 3, 2010.

See Fla. R. App. P.

9.140(b)(3); Saavedra v. State, 59 So.3d 191, 192 (Fla. 3rd DCA
2011); Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988)
(holding that, when a defendant does not file a direct appeal, the
conviction becomes final when the thirty-day period for filing a
direct appeal expires).

3

Petitioner's

one-year

limitation

period

began

to

run

on

September 4, 2010, and ran until Petitioner filed his Motion to
Correct Illegal Sentence Under Fla. R. Crim. P. 3.800(a) on
November 29, 2010, pursuant to the mailbox rule.
limitation

period

ran

for

86

days

until

Ex. D.

that

Thus, the

filing.

The

limitation period remain tolled until the mandate issued on April
26, 2011. Petitioner's one-year period began to run again on April
27, 2011.

It expired on January 31, 2012.

Of note, although Petitioner filed motions seeking mitigation,
modification or reduction of his sentence pursuant to Fla. R. Crim.
P. Rule 3.800(c), these motions do not qualify as applications for
collateral review and do not toll the limitations period.

Ex. C.

Baker v. McNeil, 439 F. App'x 786, 788-89 (11th Cir. 2011) (per
curiam) (finding Rule 3.800(c) concerns only pleas for mercy and
leniency, not collateral review, and distinguishing the Rhode
Island statute at issue in Wall v. Kholi, 131 S.Ct. 1278 (2011)),
cert. denied, 132 S.Ct. 1633 (2012).

See Shanklin v. Tucker, No.

3:11cv357/RV/MD, 2012 WL 1398186, at *3 (N.D. Fla. March 21, 2012)
(not

reported

in

F.Supp.2d)

(Report

and

Recommendation)

(recognizing that "[i]n Baker, the Eleventh Circuit held that state
court motion for discretionary sentence reduction pursuant to Rule
3.800(c) of the Florida Rules of Criminal Procedure was not an
application for state post-conviction or other collateral review,
and thus petitioner's filing of such a motion did not toll the one-

4

year limitations period for filing a federal habeas petition."),
report and recommendation adopted by Shanklin v. Tucker, No.
3:11cv357/RV/MD, 2012 WL 1396238 (N.D. Fla. Apr. 23, 2012).

As a

result, there was no statutory tolling of the one-year statute of
limitation by the filing of these Rule 3.800(c) motions.
Furthermore, Petitioner's September 1, 2011, Motion for PostConviction Relief; September 1, 2011, Memorandum of Law; September
12, 2011, Amended Motion for Post-Conviction Relief; and August 29,
2012, Motion to Supplement did not toll the limitation period. The
circuit court dismissed the combined four motions for exceeding the
page limitation set forth in Rule 3.850(d) ("No motion, including
any memorandum of law, shall exceed 50 pages without leave of the
court upon a showing of good cause.").

Since the form of the

motion was in violation of the page limitation rule, the motion was
dismissed as noncompliant with the rules.
motions toll the limitation period.3

Only properly filed

See 28 U.S.C. § 2244(d);

Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is
'properly filed' when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings.

3

These

Petitioner apparently challenges the fairness of this
interpretation because he is a pro se litigant and simply
misinterpreted the state court filing rules. Reply at 2-3. His
pro se status, however, does not excuse his failure to file a
timely petition in federal court. Pro se representation alone is
not a meritorious excuse and is insufficient to warrant equitable
tolling. Johnson v. United States, 544 U.S. 295, 311 (2005).
5

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."); Lewis v. Sec'y, Dep't of
Corr., No. 3:13cv119/MCR/EMT, 2014 WL 4410064, at *5 (11th Cir.
Sept. 8, 2014) (Not Reported in F.Supp.3d) (explaining that the
limitations

period

ran

untolled

because

the

Rule

3.850

was

"dismissed as noncompliant" for failure to comply with Florida's
written oath requirement).
Again, the limitation period expired on January 31, 2012.
Although Petitioner filed a Rule 3.850 motion for post conviction
relief on January 9, 2013, this motion did not toll the federal
one-year limitation period because it had already expired.
at 1-39.

Ex. G

See Tinker v. Moore, 255 F.3d 1331, 1334-35 (11th Cir.

2001) (holding that, even though Florida law allows a prisoner two
years to file a Rule 3.850 motion, the prisoner must file the
motion within one year after his conviction becomes final in order
to toll the one-year limitation period), cert. denied, 534 U.S.
1144 (2002); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (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 [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."), cert.

6

denied, 531 U.S. 991 (2000).

Thus, this action was not timely

filed.
Petitioner, in his Reply, contends that this Court's failure
to address the merits of the Petition would result in a fundamental
miscarriage of justice.

Reply at 3.

To invoke the fundamental

miscarriage of justice exception to AEDPA's statute of limitations,
a

habeas

petitioner

must

make

a

credible

showing

of

actual

innocence with new evidence that was not available at the time of
his trial.
(2013).

See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-32

To do so, "a petitioner 'must show that it is more likely

than not that no reasonable juror would have convicted him in the
light of the new evidence.'" Id. at 1935 (quoting Schlup v. Delo,
513 U.S. 298, 327 (1985)).

This Court summarized the requirements

to show gateway innocence:
"An actual-innocence claim must be
supported 'with new reliable evidence—whether
it
be
exculpatory
scientific
evidence,
trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at
trial.'" Milton v. Sec'y, Dep't of Corr., 347
Fed. Appx. 528, 530–31 (11th Cir. 2009)
(quoting Schlup, 513 U.S. at 324, 115 S.Ct.
851). A "habeas court must consider all the
evidence, old and new, incriminating and
exculpatory, without regard to whether it
would necessarily be admitted under rules of
admissibility that would govern at trial."
House, 547 U.S. at 538, 126 S.Ct. 2064.
A
court may also consider "how the timing of the
submission and the likely credibility of the
affiants bear on the probable reliability of
that evidence." Id. at 537, 126 S.Ct. 2064
(quotation omitted).

7

Letemps v. Sec'y, Fla. Dep't of Corr., 114 F.Supp.3d 1216, 1221
(M.D. Fla. 2015).
Petitioner, however, points to no new evidence.
Schlup

Pursuant to

and its progeny, Petitioner is required to offer new

reliable evidence that was not available at the time of his trial.
Petitioner

has

not

presented

any

new

exculpatory

scientific

evidence, trustworthy eyewitness accounts, or critical physical
evidence.
In conclusion, Petitioner does not assert or demonstrate that
he

has

new

evidence

establishing

actual

innocence.

Because

Petitioner has not shown an adequate reason why the dictates of the
one-year limitation period should not be imposed upon him, this
case will be dismissed with prejudice as untimely.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DISMISSED with prejudice.

2.

The Clerk shall enter judgment dismissing the Petition

with prejudice and dismissing this case with prejudice.
3.

If Petitioner appeals the dismissal of the Petition, the

Court denies a certificate of appealability.4
4

Because this Court

If Petitioner appeals the dismissal of the Petition, the
undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the 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
8

has

determined

that

a

certificate

of

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
filed in this case.

Such termination shall serve as a denial of

the motion.
4.

The Clerk shall close this case.

DONE AND ORDERED at Jacksonville, Florida this 17th day of
January, 2017.

sa 1/9
c:
Aaron James Rashard
Counsel of Record

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)). Here, after due consideration, this Court will deny
a certificate of appealability.
9