Greeson v. Secretary, Florida Department of Corrections

Filing 26

ORDER denying 24 request for an evidentiary hearing; dismissing with prejudice 1 the petition as untimely, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 7/7/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

FRANK D. GREESON,
Petitioner,
v.

Case No. 3:14-cv-1499-J-39JBT

SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner challenges a 1994 (Suwannee County) conviction for
one count of armed burglary of a dwelling with a firearm while
wearing a mask (count 1), five counts of armed kidnaping with a
firearm (counts 2-6), one count of armed robbery with a firearm
while wearing a mask (count 7), and one count of conspiracy (count
8).

Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by

a Person in State Custody (Petition) (Doc. 1) at 1.
Petition on November 10, 2014.1

1

He filed the

Petitioner raises two grounds

The Court gives pro se inmate petitioners the benefit of the
mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988). See 28
U.S.C. § 2244(d). Here, the Petition is not date-stamped, nor does
it include a statement by Petitioner of the date the document was
provided to the prison authorities for mailing. See Rule 3(d),
Rules Governing Section 2254 Cases in the United States District
Courts ("If an institution has a system designed for legal mail,

seeking habeas relief. Respondents filed an Answer to Petition for
Writ of Habeas Corpus (Response) (Doc. 22), and they calculate that
the Petition is untimely filed.

In support of the Response, they

submitted an Appendix (Doc. 23).2

Petitioner filed a Reply to

State's Show Cause Filed July 16, 2015 (Reply) (Doc. 24).
Order (Doc. 11).

See

Although he requests an evidentiary hearing, see

Reply at 1, no evidentiary proceedings are required in this Court.
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
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

the inmate must use that system to receive the benefit of this
rule."). Under these circumstances, the Court relies on the date
that the Petition was filed with the Clerk of the United States
District Court of the Northern District of Florida, November 10,
2014.
On December 16, 2014, the Northern District Court
transferred the case to this Court.
2

The Court hereinafter refers to the exhibits contained in
the Appendix 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.
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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).
To adequately address Respondents' contention that Petitioner
has failed to comply with the one-year limitation period, the Court
will provide a brief procedural history.
following.

The record shows the

Petitioner was charged by information.

A jury returned a verdict of guilty as charged.

Ex. A at 1-6.

Id. at 69-77.

On

December 5, 1994, the trial court sentenced Petitioner to life in
prison on counts 1-7, to be followed by a consecutive term of ten
years probation on count 8.
appealed.

Ex. A at 106-24; Ex. C.

Ex. D; Ex. E; Ex. F.

Petitioner

On December 7, 1995, the First

District Court of Appeal (1st DCA) affirmed per curiam.
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Ex. G.

Petitioner filed a motion for rehearing, Ex. H, and the 1st DCA
denied rehearing on January 11, 1996.
on January 29, 1996.

Ex. J.

Ex. I.

The mandate issued

The conviction became final on April

10, 1996 (90 days after January 11, 1996, the date of the denial of
rehearing on direct appeal) ("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.").
Petitioner's convictions became final prior to April 24, 1996,
AEDPA's effective date; therefore, he had one year, up until April
24, 1997, to file a timely federal petition for writ of habeas
corpus.

Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th

Cir. 1998) (per curiam) (one-year from date of enactment is adopted
for convictions that became final prior to the effective date of
AEDPA); see Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999),
cert. denied, 528 U.S. 1085 (2000).
For Petitioner, the limitation period expired on April 24,
1997, and he did not file his Rule 3.850 motion in the state
circuit court until June 16, 1997.

Ex. K.

See Petition at 3.

This motion did not toll the federal one-year limitation period
because it had already expired on April 24, 1997.

See Webster v.

Moore, 199 F.3d 1256, 1259 (11th Cir.) (per curiam) ("Under §
2244(d)(2), even 'properly filed' state-court petitions must be

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'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).
The

relevant

procedural

history

does

not

end

there.

Significantly, for purposes of calculating the timeliness of the
Petition, Petitioner, on December 22, 2005, filed a motion to
correct his sentence pursuant to Rule 3.800(a), Florida Rules of
Criminal Procedure.

Ex. YY.

In an order filed on July 18, 2007,

the

granted

(in

circuit

court

part)

Petitioner with 228 days of jail time.3
appealed.

Ex. AAA; Ex. BBB.

affirmed per curiam.
2008.

Ex. DDD.

the

motion,

Ex. ZZ.

crediting
Petitioner

On February 7, 2008, the 1st DCA

Ex. CCC.

The mandate issued on March 4,

The limitation period began to run on March 5,

3

Respondents assume arguendo that the trial court's order of
July 18, 2007, granting jail credit, operated to reset the clock
for purposes of calculating the one-year limitation period.
Response at 16. This Court will do the same. See Ferreira v.
Sec'y, Dep't of Corr., 494 F.3d 1286, 1293 (11th Cir. 2007)
("AEDPA's statute of limitations begins to run from the date both
the conviction and the sentence the petitioner is serving at the
time he files his application become final because judgment is
based on both the conviction and the sentence.") (emphasis in
original) (applying the United States Supreme Court's ruling in
Burton v. Stewart, 549 U.S. 147 (2007)), cert. denied, 555 U.S.
1149 (2009). Here, the circuit court found that the "sentencing
court erred in failing to award pre-sentence jail credit in the
amount of 228 days." Ex. ZZ at 6. The court's granting of jail
time credit does not constitute a correction of clerical or
scrivener's error. The altered sentence restarts the clock.
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2008, and ran for a period of 201 days, until Petitioner, on
September 22, 2008, filed a Rule 3.850 motion for post conviction
relief in the circuit court. Ex. GGG. This post conviction motion
tolled the limitation period until the mandate issued on June 15,
2010.4
2010.

Ex. MMM.

The limitation period began to run on June 16,

After running the final 164 days, the one-year limitation

period expired on Saturday, November 27, 2010, here extended to the
next week-day, Monday, November 29, 2010.

Because Petitioner's

limitation period included a year with a leap-day (2008), the Court
gives Petitioner the benefit of an extra day, making his federal
petition due Tuesday, November 30, 2010.
Petition until November 10, 2014.

He did not file the

Based on all of the foregoing,

the Petition, filed on November 10, 2014, is untimely.
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.

4

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

Respondents incorrectly state that the mandate date is
February 16, 2012. Response at 16. As reflected in the record,
the mandate date is actually June 15, 2010. Ex. MMM. As a result,
Respondents' subsequent calculations miss the mark, see Response at
16-17,
but
the
inaccuracies
in
their
calculations
are
inconsequential because the Court finds the Petition is untimely
filed based upon its thorough review of the record.
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(2013).

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)).
In order to show gateway innocence, a petitioner must do the
following:
"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).
Letemps v. Sec'y, Fla. Dep't of Corr., 114 F.Supp.3d 1216, 1221
(M.D. Fla. 2015).
As such, pursuant to Schlup and its progeny, Petitioner is
required to offer new reliable evidence that was not available at
the time of his trial.

Upon review, Petitioner has not presented

any new reliable evidence that was not available at the time of his
trial.
Plaintiff mentions two alibi witnesses, Franklin D. Greeson,
Sr., and Barbara N. Greeson, and the fact that they were not called
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to

testify

at

trial.

Reply

at

4.

He

asserts

they

"were

deliberately not called to testify[.]" Id. at 5. This certainly is
not

an

assertion

which

supports

available at the time of trial.

a

claim

that

they

were

not

Petitioner readily admits that

they were available, but asserts they were deliberately not called
to testify.
A more in-depth explanation follows.

Petitioner's defense

counsel, Kenneth N. "Sonny" Scaff, Jr., filed a Notice of Alibi
listing Frank D. Greeson and Barbara N. Greeson, Petitioner's
parents, as alibi witnesses.

Ex. A at 34.

The Notice also lists

Debbie Greeson, Petitioner's ex-wife, as an alibi witness.

Id.

Also of note, defense counsel provided the names of Frank D.
Greeson and Barbara N. Greeson in an Answer of the Defendant to the
State's Demand for Reciprocal Discovery.

Ex. K at 41.

Based on

the repeated references to Petitioner's parents in state court
documents, it is quite apparent that defense counsel was fully
aware of these potential witnesses. However, at trial, the defense
elected to call Robin McDaniel, Larry Benedict, and Petitioner as
witnesses.5

Ex. B at 4.

Also, it is undisputed that Petitioner's

parents were in the courtroom during the trial.

Ex. K at 28; Ex.

R at 87.

5

Respondents did not provide the Court with the complete
trial transcript; however, the Court's ability to address the
relevant issues at bar is not inhibited by the absence of a small
portion of the state court record. See Ex. B.
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Based upon a review of the record, Petitioner does not assert
or

demonstrate

innocence

that

that
was

he

has

not

new

evidence

available

at

establishing

the

time

of

actual
trial.

Petitioner's counsel knew about these witnesses prior to trial; he
listed them in the notice of alibi and in the discovery response.
The record shows that defense counsel knew they were in the
courtroom and were available.
Also of import, at a post conviction motion evidentiary
hearing, Sonny Scaff testified that Petitioner never told him that
he was with his mother and/or father on March 8, 1993, the date of
the offense in Suwannee County.

Ex. R at 81.

Mr. Scaff attested

that Petitioner's parents said "they could not tell me anything
about what went on on March 8th.

Id. at 82.

Furthermore, although

defense counsel knew Petitioner's parents were in attendance at the
trial, he concluded that they could not be alibi witnesses. Id. at
87-88. Mr. Scaff testified that Petitioner told him he was staying
at his ex-wife's place in Jacksonville on the date of the crime.6
Id. at 88.
The circuit court, in denying the motion for post conviction
relief, held the following:

6

Defense counsel attempted to subpoena Petitioner's ex-wife,
but the defense was unable to serve her. Ex. R at 87. After some
discussion, Petitioner and his counsel decided to proceed rather
than request a continuance to attempt to find Petitioner's ex-wife,
who was apparently "hiding out" and avoiding being served with a
subpoena. Id.
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The Defendant alleges that he had a valid
alibi defense, and that his trial counsel,
Sonny Scaff, refused to raise same at trial.
The Defendant acknowledges that his trial
testimony contradicts his alleged alibi
defense, but contends that Mr. Scaff advised
him to lie and forego the alleged alibi
defense. The Defendant's parent's testimony
at the hearing held on October 4, 1999 was
consistent with the Defendant's alibi defense.
However, the parents attended the entire trial
and did not testify.
The Court finds the
testimony of the Defendant and his parents to
be less than credible.
Trial counsel (Mr.
Scaff) produced a letter he received from the
Defendant
prior
to
trial,
wherein
the
Defendant stated his whereabouts on various
dates. This letter, admitted into evidence,
contradicts the Defendant's current alleged
alibi defense.
Upon seeing the letter the
Defendant denied the letter was authored by
him but admitted that it appeared to contain
his signature.
Moreover, Attorney Scaff
testified that the Defendant did not present
alibi to him as a defense. Thus, based on the
credible evidence, no valid alibi defense was
ever presented to Attorney Scaff. Therefore,
the Defendant is not entitled to relief on
this basis.
Torres Arboleda v. State, 636
So.2d 1321 (Fla. 1994).
Ex. S at 185-86 (enumeration omitted).
Petitioner has not offered any new reliable evidence that was
not available at the time of his trial. Upon due consideration, he
has

not

presented

any

new

exculpatory

scientific

evidence,

trustworthy eyewitness accounts, or critical physical evidence. In
conclusion, the Court finds that Petitioner has not met the
requirements of Schlup and its progeny.

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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.

Petitioner's

request

for

an

evidentiary

hearing,

contained in his Reply (Doc. 24), is DENIED.
2.

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

untimely.
3.

The Clerk shall enter judgment dismissing the Petition

with prejudice and dismissing this case with prejudice.
4.

If Petitioner appeals the dismissal of the Petition, the

Court denies a certificate of appealability.7
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

7

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
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.
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filed in this case.

Such termination shall serve as a denial of

the motion.
5.

The Clerk shall close this case.

DONE AND ORDERED at Jacksonville, Florida this 7th day of
July, 2017.

sa 6/28
c:
Frank D. Greeson
Counsel of Record

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