Lakes v. Secretary, Florida Department of Corrections et al

Filing 16

ORDER dismissing the petition and the case with prejudice, instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 1/19/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RAYMOND REYNARD LAKES,
Petitioner,
vs.

Case No. 3:14-cv-1157-J-39MCR

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

STATUS

Petitioner challenges a 2007 (Duval County) conviction for
first degree murder, attempted armed robbery, attempted second
degree murder, and shooting or throwing deadly missiles.

Petition

Under 28 U.S.C. § 2254 by a Person in Custody Pursuant to a State
Court

Judgment

(Petition)

(Doc.

1)

at

1.

He

also

filed

a

Memorandum of Law (Memorandum) (Doc. 2). He raises four grounds in
the Petition.
(Doc. 13).
(Doc. 13).1

Respondents filed a Motion to Dismiss (Response)

In support of the Response, they submitted Exhibits
Petitioner filed a Response to Motion to Dismiss

(Reply) (Doc. 14). See Order (Doc. 5). No evidentiary proceedings
are required in this Court.

1

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
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.

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
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).

Respondents calculate that the Petition is

untimely filed.
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To adequately address Respondents' contention that Petitioner
has failed to comply with the limitations period, the Court will
provide a brief procedural history.
Indictment

with

murder

in

the

Petitioner was charged by

first

degree,

attempted

armed

robbery, attempted first degree murder, shooting or throwing deadly
missiles, possession of a firearm by a convicted felon, and
possession of a firearm by a juvenile delinquent found to have
committed a felony act.

Ex. A at 14A-14D.

A jury returned a

verdict of guilty as charged of first degree murder, guilty as
charged of attempted robbery, guilty of attempted second degree
murder

(a

lesser

included

offense

of

attempted

first

degree

murder), and guilty as charged of shooting or throwing deadly
missiles.

Id. at 151-58; Ex. G at 716-18.

The possession of a

firearm charges were severed from the other charges, Ex. A at 8285, and the state nolle prossed those counts.

Ex. C at 440.

On June 28, 2007, the trial court sentenced Petitioner to life
without parole on count one, 15 years on count two, 30 years on
count three, and 15 years on count four.
Petitioner appealed.

Ex. B at 240-44.

Id. at 252-53; Ex. H; Ex. I.

On November 20,

2008, the First District Court of Appeal affirmed per curiam.
J.

The mandate issued on December 8, 2008.

Ex.

The conviction

Id.

became final on February 18, 2009 (90 days after November 20, 2008)
("According

to

rules

of

the

Supreme

Court,

a

petition

for

certiorari must be filed within 90 days of the appellate court's

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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 February 19, 2009, and
ran for a period of 162 days, until Petitioner, on July 31, 2009,
filed a pro se motion to correct illegal sentence pursuant to Rule
3.800(a), Fla. R. Crim. P.

Ex. M.

The circuit court denied the

Rule 3.800(a) motion on November 4, 2009.

Ex. P.

The limitation

period remain tolled until thirty days to appeal the decision
expired, giving Petitioner until Friday, December 4, 2009 to file
an appeal.

Petitioner did not appeal the denial of the motion.

Although Petitioner filed a motion seeking mitigation of his
sentence pursuant to Fla. R. Crim. P. Rule 3.800(c), this motion
does not qualify as an application for collateral review and does
not toll the limitation period.

Ex. K; Ex. L.

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, 560 U.S. 903 (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

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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-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 the Rule 3.800(c) motion.
Also of note, Petitioner's Motion to Compel Appellate Counsel
to Furnish Appellant with Transcribed Record of All Pre-Requested
Documents does not serve to toll the limitation period. Ex. Q; Ex.
R;

Ex.

S;

Ex.

T;

Ex.

U;

Ex.

V.

See

Response

at

8.

Of

significance, it is well-settled that 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).
In a similar case to the one at bar, this Court rejected the
contention that a mandamus petition seeking an order from the trial
court directing counsel to provide Petitioner with free copies of
records and files constituted a tolling motion.

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This type of

motion/petition does not toll the limitation period because the
court would lack authority to order relief from the conviction and
sentence based on such a motion.

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).

It may lead to material that might

help in developing a challenge, however, it simply is not a
collateral

attack.

The

above-mentioned

holdings

impart

the

significant teaching that a motion 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).
The limitations period began to run again on December 5, 2009,
and expired 203 days later on Saturday, June 26, 2010, making his
federal petition due on Monday, June 28, 2010.

Based on the

foregoing, the Petition, filed on September 17, 2014, pursuant to
the mailbox rule, is untimely and due to be dismissed unless
Petitioner can establish that equitable tolling of the statute of
limitations is warranted.
Again, the federal petition was due on Monday, June 28, 2010.
Although Petitioner filed a state petition for writ of habeas
corpus

on

July

21,

2010,

and

a

Rule

3.850

motion

for

post

conviction relief on November 30, 2010, they did not toll the
federal one-year limitation period because it had already expired.
Ex. W; Ex. X; Ex. Y; Ex. Z; Ex. AA; Ex. BB; Ex. CC; Ex. DD; Ex. EE;
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Ex. FF. Ex. GG. Ex. HH.

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. denied, 531 U.S. 991 (2000).
Petitioner urges this Court to find that his untimely filing
of his federal Petition should be contributed to circumstances
beyond his control.

Petitioner contends that he is entitled to

some equitable tolling due to the fact that he filed a motion to
compel his appellate counsel to furnish him with documents.
note,

the

tolling."

AEDPA

"limitations

period

is

subject

to

Of

equitable

Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 474 (11th

Cir. 2014) (citing Holland v. Florida, 560 U.S. 631, 130 S.Ct.
2549, 2560 (2010)).
tolling.
been

There is a two-pronged test for equitable

It requires a petitioner to demonstrate "(1) that he has

pursuing

his

rights

diligently,

and

(2)

that

some

extraordinary circumstances stood in his way and prevented timely
filing."

Holland, 560 U.S. at 649 (quotation marks omitted); see
- 7 -

Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (stating that
equitable tolling "is a remedy that must be used sparingly"); see
also Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (per
curiam) (noting that the Eleventh Circuit "has held that an inmate
bears a strong burden to show specific facts to support his claim
of

extraordinary

circumstances

and

due

diligence")

(citation

omitted).
Petitioner

bears

the

burden

to

show

extraordinary

circumstances that are both beyond his control and unavoidable with
diligence, and this high hurdle is not easily surmounted.

Howell

v. Crosby, 415 F.3d 1250 (11th Cir. 2005), cert. denied, 546 U.S.
1108 (2006); Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir. 2004)
(per

curiam)

(citations

omitted).

The

Court

concludes

that

Petitioner has not met the burden of showing that equitable tolling
is warranted.
Petitioner contends that counsel's failure to provide him with
copies of documents prevented him from preparing, researching, and
drafting post conviction motions.

Reply at 2-3.

The Court finds

Petitioner's argument unavailing. Petitioner's inability to obtain
free copies of all of the documents he desired from his criminal
case is not an extraordinary circumstance.
occurrence.

Indeed, it is a common

See Williams v. Sec'y, Dep't of Corr., No. 8:07-cv-

458-T-30EAJ, 2009 WL 1046131, at *2 (M.D. Fla. Apr. 20, 2009) (Not
Reported in F.Supp.2d) (finding a public records request and
litigation concerning that request is not a collateral attack and
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does not toll); Ramirez, 2015 WL 6704312, at *3 (noting that
petitioner sought an order from the trial court directing counsel
to provide petitioner with free copies of records and files, but it
did not toll the limitation period).
reflect

that

his

counsel

received

Petitioner's own documents
a

CD

of

the

state

court

transcripts from the state court clerk, and counsel provided that
CD to Petitioner, without cost.2

Petitioner's Exhibit C (Doc. 14-

3) at 3. Additionally, the clerk responded to Petitioner's request
for printed transcripts that the clerk's office does not provide
printed transcripts, and Petitioner would have to contact the court
reporters' office to obtain such.

Petitioner's Ex. D2 (Doc. 14-4)

at 3.
Moreover,

Petitioner

states

that

he

did

not

obtain

the

portions of the record he requested until Respondents filed their
Response (Doc. 13).

Reply at 2.

Of import, Petitioner filed both

his state petition for writ of habeas corpus and Rule 3.850 motion
without the transcripts and/or documents he now asserts the absence
of which hindered his ability to timely file a federal petition.
Since Petitioner was clearly able to file his state habeas petition
and post conviction motion without the requested documents, he
certainly could have filed his federal petition in a timely

2

The record reflects that counsel was not provided with
printed copies of the transcripts.
Reply at 2-3.
He provided
Petitioner with what he received from the clerk.
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fashion.3

No extraordinary circumstances stood in his way and

prevented him from timely filing his Petition. Although additional
records

may

have

eased

his

task,

Petitioner

certainly

had

sufficient documentation and information to adequately pursue his
state court remedies.

Additionally, he could have filed a timely

federal petition, seeking leave to amend or to supplement the
petition with additional records if the state failed to provide
them to the Court.
Petitioner does not allege, and the record does not show, that
the state impeded him from filing a timely § 2254 petition during
the untolled periods.
rights diligently.

Petitioner simply failed to pursue his

Although Petitioner was proceeding pro se in

his state court proceedings, his status as a pro se filer is not a
meritorious
tolling.

excuse

and

is

insufficient

to

warrant

equitable

Johnson v. United States, 544 U.S. 295, 311 (2005).

Under these circumstances, the Court is not persuaded that
Petitioner acted diligently. He let 162 days run before filing his
first tolling qualified motion/petition, a Rule 3.800(a) motion.
After that tolling period expired, he let 228 days run before
filing his second tolling qualified motion/petition: a state habeas

3

The Court notes that ground one of the Petition is the same
ground counsel raised in the direct appeal brief. Ex. H. Grounds
two and three of the Petition, claims of ineffective assistance of
counsel, were raised in the Rule 3.850 motion. Ex. Y. Ground four
was apparently never raised in the state court system and would be
both unexhausted and procedurally defaulted. Petition at 13-14.
The Court also notes that Petitioner did not include ground four in
his Memorandum.
- 10 -

petition.4

Petitioner waited an inordinately long period of time

after his criminal conviction became final (five and one half
years) to file his federal Petition.5

The Court finds that he has

not shown that he is entitled to extraordinary relief.

Equitable

tolling is a remedy that should be used sparingly, and Petitioner
has failed to show that he exercised due diligence in pursuing his
state court remedies.

Furthermore, Petitioner has failed to show

an extraordinary circumstance, and he has not met the burden of
showing that equitable tolling is warranted.
Therefore, based on the record before the Court, the Court
finds that Petitioner has not presented any justifiable reason why
the dictates of the one-year limitation period should not be
imposed upon him.

He had ample time to exhaust state remedies and

prepare and file a federal petition.

In this case, Petitioner

fails to demonstrate he is entitled to equitable tolling or that he
has new evidence establishing actual innocence.

Therefore, the

Court will dismiss the case with prejudice pursuant to 28 U.S.C. §
2244(d).
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition and the case are DISMISSED with prejudice.

4

Of course, the AEDPA one-year limitation period had already
expired when he filed his state habeas petition.
5

The Court recognizes that there was a brief AEDPA-tolled
period from July 31, 2009 through December 4, 2009.
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2.

The Clerk shall enter judgment dismissing the Petition

with prejudice and dismissing the case with prejudice.
3.

The Clerk shall close the case.

4.

If Petitioner appeals the dismissal of the Petition, the

Court denies a certificate of appealability.6
has

determined

that

a

certificate

of

Because this Court

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.
DONE AND ORDERED at Jacksonville, Florida, this 19th day of
January, 2017.

sa 1/11
c:
Raymond Reynard Lakes
Counsel of Record

6

This Court should issue a certificate of appealability only
if a 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, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
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