Thomas v. State of Florida et al

Filing 15

ORDER dismissing the petition with prejudice; dismissing 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 5/3/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

CLEAVE A. THOMAS,
Petitioner,
v.

Case No. 3:14-cv-1291-J-39JBT

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Cleave A. Thomas, an inmate of the Florida penal
system, initiated this action on October 20, 2014,1 by filing a pro
se Petition for Writ of Habeas Corpus (Petition) (Doc. 1) under 28
U.S.C. § 2254. Respondents filed a Motion to Dismiss Petition for
Writ of Habeas Corpus as Untimely (Response) (Doc. 13) with

1

Petitioner filed the Petition in this Court on October 22,
2014; however, giving him the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date he apparently
handed it to the prison authorities for mailing to this Court
(October 20, 2014). See Rule 3(d), Rules Governing Section 2254
Cases in the United States District Courts. The Court will also
give Petitioner the benefit of the mailbox rule with respect to his
inmate state court filings when calculating the one-year limitation
period under 28 U.S.C. § 2244(d).

exhibits.2 Petitioner submitted a Response to Motion to Dismiss
Petition for Writ of Habeas Corpus as Untimely (Reply) (Doc. 14)
with Exhibit A. See Order (Doc. 4).
II. One-Year Period of Limitation
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) imposes a one-year statute of limitation on petitions for
writ of habeas corpus. Specifically, 28 U.S.C. § 2244 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

2

The Court hereinafter refers to the Exhibits (Doc. 13)
submitted in support of the Response as "Ex."
2

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 contend that Petitioner has not complied with the
one-year period of limitation set forth in 28 U.S.C. § 2244(d). The
following procedural history is relevant to the one-year limitation
issue.

On October 14, 2010, Petitioner was charged by third

amended information with robbery and aggravated battery.

Ex. A at

23. A jury found Petitioner guilty as charged on October 20, 2010.
Ex. A at 62-63; Ex. B; Ex. C.
The trial court entered judgment on November 18, 2010, and
sentenced Petitioner to concurrent fifteen-year terms.
113-27; Ex. D at 20-21.
Ex. F; Ex. G.

Ex. A at

Petitioner took a direct appeal.

Ex. E;

On December 20, 2011, the First District Court of

Appeal (1st DCA) affirmed the judgments and sentences but remanded
based on improperly imposed costs.
January 18, 2012.

Ex. I.

Ex. H.

The mandate issued on

On January 13, 2012, nunc pro tunc to

November 18, 2010, the circuit court amended the judgment to
reflect the proper costs.

The amended judgment was filed with the

3

Clerk on January 18, 2012.3

Ex. J.

Thus, his judgment became

final thirty days later on Friday, February 17, 2012.

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).
During the thirty-day appeal period, Petitioner, on January
28, 2012, filed his first Rule 3.850 motion pursuant to the mailbox
rule.

Ex. K at 1-78.

79-108.

The circuit court denied the motion.

Petitioner appealed.

Id. at 109; Ex. L.

a notice that it would not file an answer brief.
25, 2012, the 1st DCA affirmed per curiam.
denied rehearing.
2012.

Ex. O; Ex. P.

Id. at

The state filed
Ex. M.

Ex. N.

On July

The 1st DCA

The mandate issued on October 1,

Ex. Q.
Petitioner's

one-year

limitation

period

began

to

run

on

October 2, 2012, and ran until Petitioner filed his second Rule
3.850 motion on October 17, 2012, pursuant to the mailbox rule.
Ex. R. Thus, the limitation period ran for fifteen days until that
filing.

The limitation period remain tolled until the mandate

issued on April 2, 2013.

Ex. T.

Petitioner's one-year period

began to run again on April 3, 2013.

3

It expired on Wednesday,

Respondents refer to an amended judgment date of January 18,
2010, which is incorrect. See Response at 2, 4.
4

March 19, 2014.

His Petition, filed on October 20, 2014, is due to

be dismissed as untimely unless he can avail himself of one of the
statutory provisions which extends or tolls the limitation period.
Petitioner asserts that his October 20, 2014 Petition is
timely filed because he initially filed a pro se federal petition
in the United States District Court for the Middle District of
Florida on April 9, 2013. Reply at 1 & Exhibit A.

In that case

(Case No. 3:13-cv-383-J-20PDB), he filed a federal petition for
writ of habeas corpus.4

When Petitioner failed to pay the $5.00

filing fee or complete and file an affidavit of indigency as
directed by the Court, the Court dismissed his petition without
prejudice on July 31, 2013.5

See Case No. 3:13-cv-383-J-20PDB,

Order (Doc. 6).
The pendency of a previously filed federal habeas petition did
not toll the running of the federal limitation period. The federal
limitation period is tolled during the time in which a properly
filed application for state post-conviction relief is pending, see
Artuz

v.

Bennett,

531

U.S.

4,

8-9

(2000)

(defining

when

an

application is "properly filed" under 28 U.S.C. § 2244(d)(2));
however, the time in which a federal habeas petition is pending

4

The Court takes judicial notice of Case No. 3:13-cv-383-J-

20PDB.
5

The dismissal without prejudice did not excuse Petitioner
from the one-year period of limitation for raising a habeas corpus
petition in the federal courts. See 28 U.S.C. § 2244(d).
5

does not toll the one-year limitation period. See Duncan v. Walker,
533 U.S. 167 (2001) (holding that an application for federal habeas
corpus review does not toll the one-year limitation period under §
2244(d)(2)).
Given the record, Petitioner's October 20, 2014 Petition is
untimely filed, and due to be dismissed unless he can establish
that equitable tolling of the limitation period is warranted.

The

United States Supreme Court has established a two-prong test for
equitable tolling, stating that a petitioner must show "(1) that he
has

been

pursuing

his

rights

diligently,

and

(2)

that

some

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

Holland v. Florida, 560 U.S. 631, 649 (2010); Cole v.

Warden, Ga. State Prison, 768 F.3d 1150, 1157-58 (11th Cir. 2014),
cert. denied, 135 S.Ct. 1905 (2015).

As an extraordinary remedy,

equitable

exceptional

tolling

is

limited

to

circumstances,

"professional misconduct or otherwise," objectively identified.
Cadet v. State of Fla. Dep't of Corr., No. 12-14518, 2017 WL
727547, at *9 (11th Cir. 2017).

The burden is on Petitioner to

make a showing of extraordinary circumstances that are both beyond
his control and unavoidable with diligence, and this high hurdle
Howell v. Crosby, 415 F.3d 1250

will not be easily surmounted.

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

6

Petitioner has not met the burden of showing that equitable tolling
is warranted.
As such, Petitioner has not shown a justifiable reason why the
dictates of the one-year limitation period should not be imposed
upon him.

For this reason, this Court will dismiss this case with

prejudice pursuant to 28 U.S.C. § 2244(d).
Therefore, it is now
ORDERED AND ADJUDGED:
1.

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

this case 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.6
has

determined

that

a

certificate

of

Because this Court

appealability

is

not

warranted, the Clerk shall terminate from the pending motions

6

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, a 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)). Here, after due consideration, this Court will deny
a certificate of appealability as Petitioner has not met his
burden.
7

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 3rd day of
May, 2017.

sa 5/2
c:
Cleave A. Thomas
Counsel of Record

8