Johnson v. Secretary, Florida Department of Corrections et al

Filing 19

ORDER denying as moot 18 Motion to Rule; denying 13 Motion to Dismiss as Untimely; Respondents shall respond to the merits of the petition by July 31, 2017; Petitioner shall file his reply by August 30, 2017. Signed by Judge Brian J. Davis on 6/21/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ANTWANN JOHNSON,
Petitioner,
vs.

Case No. 3:14-cv-1351-J-39JBT

SECRETARY, DOC, et al.,
Respondents.

ORDER
Petitioner initiated this action by filing a Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (Petition) (Doc. 1) and a Memorandum of Law (Doc. 4) on
October 29, 2014.1

He challenges his 2009 Duval County conviction

for escape, battery on a law enforcement officer, and battery
against a law enforcement animal.

Petition at 1.

Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), there is a one-year period of limitation:
(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
1

The Petition was filed with the Clerk on November 3, 2014;
however, giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date Petitioner
provided his Petition to prison authorities for mailing to this
Court (October 29, 2014). See Houston v. Lack, 487 U.S. 266, 276
(1988); 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 pro se state
court filings when calculating the one-year limitations period
under 28 U.S.C. § 2244(d).

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, in their Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely (Response) (Doc. 13), contend that
Petitioner has failed to comply with the limitation period.

2

They

provided exhibits in support of their contention.

(Doc. 13).2

Petitioner was given admonitions and a time frame to respond to the
request to dismiss the Petition contained within the Response. See
Court's Order (Doc. 8).

Petitioner filed a Reply to Respondents'

Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely
(Reply) (Doc. 15).
The

Court

untimeliness.

will

first

address

Respondents'

claim

of

Petitioner was charged by information with escape,

battery on a law enforcement officer, and battery against a law
enforcement animal.

Ex. C at 13-14.

entered a plea of guilty.

Id. at 32-3.

On the day of trial, he
On September 29, 2009, the

court adjudicated Petitioner guilty as to all counts, entered
judgment, and sentenced Petitioner as an habitual felony offender
to concurrent ten-year terms on counts one and two, and a one-year
prison term on count three.

Id. at 34-41.

Petitioner appealed, id. at 70, 90, Ex. D, Ex. E, and on April
12, 2011, the First District Court of Appeal (1st DCA) affirmed per
curiam the conviction and sentence.
June 10, 2011.

Ex. F.

The mandate issued on

Ex. I.

2

The Court refers to the Respondents' exhibits as "Ex."
Where provided, the page numbers referenced in this opinion are the
Bates stamp numbers at the bottom of each page. Otherwise, the
Court will reference the page number on the particular document.
The Court will reference the page numbers assigned by the
electronic docketing system where applicable.
3

On May 18, 2011, Petitioner moved to correct his sentence
pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure.
Ex. K at 1-9.

The circuit court denied the motion.

Petitioner appealed.

Id. at 10-23.

Id. at 30; Ex. L; Ex. M.

affirmed per curiam on August 17, 2012.
on September 12, 2012.

Ex. N.

The 1st DCA

The mandate issued

Ex. O.

Petitioner filed a pro se Rule 3.850 post conviction motion in
the circuit court on September 21, 2011.

Ex. DD at 1-51.

The

circuit court denied the Rule 3.850 motion in an order filed on
November 28, 2012.3

Id. at 52-96.

Petitioner failed to file an

appeal within thirty days, with the time to appeal expiring on
December 28, 2012. Thus, the one-year limitation period was tolled
until December 28, 2012.
At this point, there were 365 days remaining in the one-year
limitation period.

It began to run on December 29, 2012.

The

limitation period ran for 157 days, until Petitioner filed a
petition for belated appeal on June 3, 2013.4

Ex. Q.

He filed an

3

The order references, under "copies to", the Office of the
State Attorney and Petitioner. Ex. DD at 54. The deputy clerk's
certificate of service, indicating that a copy of the order is
being provided to Petitioner at his institutional address, is dated
November 28, 2012. Id. at 54-55.
4

Eleventh Circuit precedent teaches that a petition for
belated appeal is bereft of the required characteristics of an
application for collateral review and simply, if successful,
revives the right to prosecute an appeal:
The court in Espinosa went on to hold
that a petition for belated postconviction
4

amended petition for belated appeal on November 8, 2013.

Ex. X.

On February 18, 2014, the 1st DCA granted the petition for belated
appeal.5

Ex. AA.

The 1st DCA, on July 7, 2014, affirmed per

appeal does not qualify as an application for
collateral review under § 2244(d)(2), because,
under Florida law, it "does not reach the
merits of the anticipated appeal or the
validity of the order to be appealed." Id. at
1141 (quoting Jones v. State, 922 So. 2d 1088,
1090 (Fla. 4th DCA 2006)); see also Danny v.
Sec'y, Fla. Dep't of Corr., 811 F.3d 1301,
1302 (11th Cir. 2016) (holding that a petition
for a belated direct appeal, under Fla. R.
App. P. 9.141(c), does not qualify as an
application for State collateral review under
§ 2244(d)(2) and does not toll the limitations
period).
Wickboldt v. Jones, No. 3:16CV217/MCR/CJK, 2017 WL 2060009, at *4
(N.D. Fla. Apr. 13, 2017), report and recommendation adopted by No.
3:16CV217/MCR/CJK, 2017 WL 2058208 (N.D. Fla. May 12, 2017). Thus,
a petition for belated appeal does not qualify as an application
for state collateral review under 28 U.S.C. § 2244(d)(2).
5

Since the state appellate court granted Petitioner's
petition for belated appeal, it considered the merits of the
underlying claims, triggering "a reexamination of his conviction or
sentence[.]" Espinosa v. Sec'y, Dep't of Corr., 804 F.3d 1137, 1142
(11th Cir. Oct. 23, 2015). As a result, the petition for belated
appeal tolled the federal limitations period. Although the period
was not tolled after the appeal period expired and, as a result,
157 days ran on the one-year period, the subsequent properly filed
motion for belated appeal provided additional tolling "beginning at
the time of the proper filing of that motion," as long as it was
filed before the limitations period expired. Peterson v. Jones,
No. 3:14-cv104/RV-CJK, 2015 WL 1061677, at *6 (N.D. Fla. Mar. 11,
2015) (citing Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir.
2003)). See Espinosa v. Sec'y, Dep't of Corr., 804 F.3d at 1142
(discussing the Fifth Circuit's decision in Melancon v. Kaylo, 259
F.3d 401, 407 (5th Cir. 2001), and recognizing that an application
is no longer considered to be pending when an appeal period lapses,
but a subsequent properly filed application is considered to
provide additional tolling beginning on the date of the proper
filing). In this instance, the petition for belated appeal was
5

curiam the decision of the circuit court in denying the Rule 3.850
motion.

Ex. GG.

The mandate issued on August 28, 2014.

Ex. JJ.

Thus, at this point there were 208 days remaining in the limitation
period. Petitioner filed his federal Petition on October 29, 2014,
sixty-two days later, well-within the one-year limitation period.
As such, Respondents request that the Petition be dismissed as
untimely filed is due to be denied.
Alternatively, even assuming the Petition was untimely filed,
Petitioner

is

entitled

to

equitable

tolling.

An

explanation

follows.
Petitioner claims that he can establish that equitable tolling
of the statute of limitations is warranted.

He asserts there were

extraordinary circumstances both beyond his control and unavoidable
even with diligence.

Reply at 5-8.

He contends that he is

entitled to equitable tolling because the trial court failed to
provide him with a copy of its order filed on November 28, 2012,
preventing him from filing a timely appeal of the denial of his
Rule 3.850 motion.

Id.

filed before the limitation period expired, the state appellate
court granted the motion, and the reexamination of the merits
commenced, thereby "lift[ing] the finality that had attached to his
conviction and sentence." Agnew v. Florida, No. 16-14451, 2017 WL
962489, at *5 (S.D. Fla. Feb. 1, 2017), report and recommendation
adopted by No. 1614451, 2017 WL 962486 (S.D. Fla. Feb. 22, 2017).
In this particular scenario, tolling is appropriate because the
state court excused the untimeliness and ruled on the merits of the
underlying claim for collateral relief.
6

Petitioner urges this Court to find that his untimely filing
of his federal Petition should be contributed to circumstances
beyond his control. Specifically, he blames his untimely filing on
the lower tribunal's failure to notify him of the final disposition
of his post conviction motion.

Reply at 5.

He seeks the equitable

tolling of the time that elapsed between the denial of his post
conviction motion and the completion of his belated appeal.
The Eleventh Circuit recognizes: "[t]he limitations period is
subject to equitable tolling."

Cadet v. Fla. Dep't of Corr., 853

F.3d 1216, 1218 (11th Cir. 2017) (citing Holland v. Florida, 560
U.S. 631, 645 (2010)).

Indeed,

There is another way in which the §
2244(d) clock can be tolled. A late petition
may be accepted under the principle of
equitable tolling. "Equitable tolling allows
state prisoners to toll the statute of
limitations
based
on
extraordinary
circumstances that are both beyond their
control and unavoidable even with diligence."
Pollock v. Sec'y, Fla. Dep't of Corrs., 2016
WL 5799647, *2 (11th Cir. 2016). To establish
the right to equitable tolling, Pollock
continues, the Petitioner must demonstrate two
criteria. It is the Petitioner's burden of
persuasion, and he must show (1) the diligent
pursuit
of
his
rights
and
(2)
some
extraordinary circumstance that stood in his
way and that prevented timely filing. This
avenue of relief is extraordinary in nature.
The relief of equitable tolling is rare and
exceptional. It is a form of relief that is
applied sparingly.

7

Agnew v. Florida, No. 16-14451-CIV, 2017 WL 962489, at *5 (S.D.
Fla. Feb. 1, 2017), report and recommendation adopted by No.
16-14451-CIV, 2017 WL 962486 (S.D. Fla. Feb. 22, 2017).

However,

Petitioner "bears the burden of establishing his entitlement to
equitable tolling." Pollock v. Sec'y, Dep't of Corr., 664 F. App'x
770, 772 (11th Cir. 2016) (per curiam) (citing Johnson v. United
States, 340 F.3d 1219, 1226 (11th Cir. 2003)).
With regard to Petitioner's contention that he is entitled to
equitable tolling of the time that elapsed between the denial of
his post conviction motion and the completion of his belated
appeal, the Court looks to the period between November 28, 2012,
the date of the denial of the Rule 3.850 motion, and August 28,
2014, the date the First District Court of Appeal issued the
mandate after addressing the belated appeal of the denial of the
Rule 3.850 motion. Thirty days of this period are considered to be
tolled, allowing for an appeal of the denial of the Rule 3.850
motion.

As such, the one-year limitations period was tolled until

Friday, December 28, 2012.

That leaves the period from December

29, 2012 until August 28, 2014 (the date the mandate issued on the
affirmance of the denial of the Rule 3.850 motion), at issue.

Ex.

GG, Ex. JJ.
The record shows that Petitioner proceeded pro se in his Rule
3.850 proceeding.

The 1st DCA granted a belated appeal, Ex. AA,

and the mandate issued on March 6, 2014.

8

Ex. BB.

The remaining question is whether Petitioner exercised due
diligence in attempting to ascertain the status of his Rule 3.850
motion.

The record shows the following.

On September 21, 2011,

Petitioner filed his Rule 3.850 motion.

Ex. DD at 1-51.

On

October 29, 2012, the circuit court ordered the state to respond.
Ex. Q, Appendix A, Order Directing State Attorney to File Response.
On November 8, 2012, the state provided Petitioner with a courtesy
copy of its response.

Id., Appendix B, Letter.

On January 14,

2013, Petitioner filed, pursuant to the mailbox rule, a Motion to
Rule in the circuit court.

Id., Appendix C, Motion to Rule.

Apparently,

no

after

receiving

response,

Petitioner

filed

a

Petition for Writ of Mandamus in the 1st DCA on March 28, 2013.
Ex. X, Appendix A, Petition for Writ of Mandamus.

The 1st DCA, on

May 21, 2013, notified Petitioner that the circuit court entered
its order denying the Rule 3.850 motion on November 28, 2012,
provided him with a copy of the order, and found the petition for
writ of mandamus moot.

Id., Appendix B, Order.

On May 21, 2013, Petitioner contacted the Mayo Correctional
Institution mail room officials to determine if there was any
incoming legal mail for Petitioner in December, 2012.
Appendix C, Inmate Request/Response.

Id.,

On May 29, 2013, the mail

room official responded that there was no incoming legal mail for
Petitioner in the month of December.

Id.

On June 3, 2013,

Petitioner filed his Notice for Belated Appeal in the 1st DCA. Ex.

9

Q.

He followed this notice with a motion for enlargement of time

to prepare his brief.

Ex. R.

On June 6, 2013 and June 19, 2013,

the 1st DCA ordered Petitioner to comply with proper service upon
the state.

Ex. S; Ex. T.

On July 25, 2013, the 1st DCA denied the

motion for an extension of time and directed Petitioner to show
cause why his case should not be dismissed for failure to comply
with the court's service order.

Ex. U.

Petitioner responded to

the court's order to show cause on August 12, 2013.

Ex. V.

The

1st DCA, on September 24, 2013, dismissed the petition for belated
appeal "for failure to comply with the court's service order of
August 19, 2013."

Ex. W.

Although not entirely clear from the incomplete state court
record presented to the Court, apparently the 1st DCA granted a
motion for rehearing allowing for the filing of an amended petition
for

belated

Petitioner

appeal.

filed

his

Ex.

X,

Amended

Appendix
Petition

D,
for

Letter
Belated

to

Clerk.

Appeal

on

November 8, 2013. Ex. XX, Amended Petition for Belated Appeal. On
November 19, 2013, the 1st DCA ordered the state to file a
response, Ex. Y, and the state responded.

Ex. Z.

granted a belated appeal on February 18, 2014.
mandate issued March 6, 2014.

The 1st DCA
Ex. AA.

The

Ex. BB.

Petitioner promptly filed a notice of appeal on March 10,
2014.

Ex. CC at 1.

After briefing, the 1st DCA per curiam

affirmed on July 7, 2014.

Ex. GG. The mandate issued on August 28,

10

2014.

Ex. JJ.

Petitioner filed his federal Petition two months

later on October 29, 2014.
With regard to question of Petitioner's diligence, the record
confirms that he diligently sought information about his case,
believing that the circuit court had not yet ruled on his motion.
In fact, in slightly over two months after his Rule 3.850 motion
became ripe, Petitioner filed a Motion to Rule in the circuit court
on January 14, 2013.

Thereafter, he filed a Petition for Writ of

Mandamus in the 1st DCA on March 28, 2013.

On May 21, 2013, the

1st DCA notified Petitioner that his post conviction motion had
been denied. On May 21, 2013, Petitioner contacted the prison mail
room staff seeking information about the institutional log of his
incoming legal mail. Once Petitioner verified that he had received
no incoming legal mail from the circuit court, Petitioner filed his
June 3, 2013 notice for belated appeal.
The

fact

that

the

circuit

court's

order

never

reached

Petitioner at his institution "was certainly beyond [his] control."
Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002) (per
curiam).

The Court is persuaded that this record shows that

Petitioner diligently attempted to ascertain the status of his post
conviction case through his actions and inquiries.

Petitioner

waited a brief period of time, just over two months after the
motion became ripe, before making inquiries about the status of his
post conviction motion.

Cf. Pollock, 664 F. App'x at 773 (waiting

11

seventeen months after the filing of his brief to make a single
inquiry is insufficient to show reasonable diligence on the part of
a prisoner). This constitutes an exercise of reasonable diligence.
San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir.) (it is
reasonable

diligence,

not

maximum

feasible

diligence

that

is

required for equitable tolling purposes) (citation omitted), cert.
denied, 565 U.S. 843 (2011).
The Court is of the opinion that Petitioner has shown that he
is entitled to extraordinary relief. Although equitable tolling is
a remedy that should be used sparingly, under these circumstances,
the Court finds that Petitioner has shown that he exercised
reasonable diligence in attempting to ascertain the status of his
Rule 3.850 motion, and the delay in obtaining the order not only
hindered the exhaustion of his state court remedies, but delayed
the filing of the federal Petition. Indeed, the Court is persuaded
that not only was there a diligent pursuit of his rights, there was
also

an

extraordinary

circumstance

that

stood

in

his

way,

preventing timely filing.
Based on the record, Petitioner demonstrates that he is
entitled to equitable tolling.

Therefore, Respondents' Motion to

Dismiss is due to be denied.
Accordingly, it is now
ORDERED:

12

1.

Respondents' Motion to Dismiss Petition for Writ of

Habeas Corpus as Untimely (Doc. 13) is DENIED.
2.

Petitioner's Motion to Rule (Doc. 18) is DENIED as moot.

3.

Respondents shall respond to the merits of the Petition

by July 31, 2017.
4.

Petitioner shall file his reply by August 30, 2017.

DONE AND ORDERED at Jacksonville, Florida, this 21st day of
June, 2017.

sa 6/13
c:
Antwann Johnson
Counsel of Record

13