Verdell v. Secretary, Department of Corrections et al

Filing 13

ORDER granting Respondents' request to dismiss the Petition as untimely, and dismissing the action with prejudice. Signed by Judge Marcia Morales Howard on 10/11/2017. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JOHN K. VERDELL,
Petitioner,
v.

Case No. 3:14-cv-1500-J-34JBT

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner John K. Verdell, an inmate of the Florida penal
system, initiated this action on December 3, 2014,1 by filing a pro
se Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. In the Petition, Verdell challenges a 2010 state
court (Flagler County, Florida) judgment of conviction for sale of
cocaine, possession of cocaine, possession of paraphernalia and
obstructing an officer without violence. Respondents have submitted
a memorandum in opposition to the Petition. See Respondents'
Response to Petition (Response; Doc. 10) with exhibits (Resp. Ex.).
On August 20, 2015, the Court entered an Order to Show Cause and
Notice to Petitioner (Doc. 8), admonishing Verdell regarding his
1

Giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date Petitioner
handed it to the prison authorities for mailing to this Court. See
Houston v. Lack, 487 U.S. 266, 276 (1988). 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
limitations period under 28 U.S.C. § 2244(d).

obligations and giving Verdell a time frame in which to submit a
reply. Verdell submitted a brief in reply. See Petitioner's Reply
to State's Response to § 2254 Petition (Reply; Doc. 12). This case
is ripe for review.
II. One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) imposes a one-year statute of limitations 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
presented could have been discovered

2

through
the
diligence.

exercise

of

due

(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 Verdell has not complied with the
one-year period of limitations set forth in 28 U.S.C. § 2244(d).
The following procedural history is relevant to the one-year
limitations issue. On March 3, 2009, the State of Florida charged
Verdell with sale of cocaine in case number 2009-113. See Resp. Ex.
A at 55. In another case (case number 2010-233), the State of
Florida charged him with possession of cocaine, possession of
paraphernalia, and obstructing an officer without violence. See id.
at 56. On April 27, 2010, Verdell entered a no contest plea to all
counts in both cases. See Resp. Ex. B. On August 6, 2010, the court
sentenced Verdell to a term of imprisonment of twelve years for the
sale of cocaine in case number 2009-113, and a term of imprisonment
of five years for the possession of cocaine in case number 2010233, to run concurrently to the term imposed in case number 2009113.

See

Resp.

Ex.

C,

Transcript

of

the

Sentencing

Hearing

(Sentencing Tr.), at 51-52; Resp. Ex. A at 44-53, Judgment.

On

October 4, 2011, the appellate court affirmed Verdell's conviction
per curiam, see Verdell v. State, 71 So.3d 130 (5th DCA 2011);

3

Resp. Ex. I, and the mandate issued on October 26, 2011, see Resp.
Ex. J. Verdell did not seek review in the United States Supreme
Court.
Verdell's conviction became final on January 2, 2012 (90 days
from October 4, 2011). See Close v. United States, 336 F.3d 1283,
1285 (11th Cir. 2003) ("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."). Because Verdell's conviction was
after April 24, 1996, the effective date of the AEDPA, Verdell had
one year from the date his conviction became final to file the
federal petition (January 2, 2013). His Petition, filed on December
3, 2014, is due to be dismissed as untimely unless he can avail
himself of one of the statutory provisions which extends or tolls
the limitations period.
Before his conviction became final, Verdell filed a pro se
motion to correct illegal sentence pursuant to Florida Rule of
Criminal Procedure 3.800(a) (Rule 3.800) on November 7, 2011. See
Resp. Ex. K. The court denied the Rule 3.800 motion on December 5,
2011. See Resp. Ex. L. On January 17, 2012, the appellate court
affirmed the court's denial per curiam, see Verdell v. State, 78
So.3d 554 (5th DCA 2012); Resp. Ex. M, and the mandate issued on
February 10, 2012, see Resp. Ex. N.

4

On January 20, 2012, Verdell filed a pro se petition for writ
of habeas corpus in the state appellate court. See Resp. Ex. O. The
appellate court denied the petition on February 2, 2012. See Resp.
Ex. Q. On February 20, 2012, the court disposed of the case without
issuance of a mandate. See http://jweb.flcourts.org, Verdell v.
State of Florida, 5D12-321 (Fla. 5th DCA 2012).
The one-year limitations period began to run the next day,
February 21, 2012, and ran for twenty-eight (28) days until March
20, 2012, when Verdell filed a pro se motion to correct illegal
sentence pursuant to Florida Rule of Criminal Procedure 3.800(a)
(2nd Rule 3.800 motion). See Resp. Ex. R. The circuit court denied
the motion on May 14, 2012. See Resp. Ex. S at 1. Verdell had until
June 13, 2012 (thirty days from the circuit court's May 14th
denial) to file an appeal.2
On August 21, 2012, Verdell filed a pro se petition for
belated appeal (petition), dated July 31, 2012, in the appellate
court. See http://jweb.flcourts.org, Verdell v. State of Florida,

2

In his Reply, Verdell asserts that he "pursued a timely
appeal" after the trial court denied his 2nd Rule 3.800 motion on
May 14, 2012. Reply at 5. He states he handed his notice of appeal
to prison authorities at Gulf Correctional Institution for mailing
on May 25, 2012, but it "never arrived" at the circuit court's
clerk's office. Id. at 6. According to Verdell, he inquired about
the status of his May 25, 2012 notice of appeal, and was informed
that the trial court had not received it; he then filed a motion
for belated appeal on June 10, 2012, in the state appellate court.
See id.
5

case no. 5D12-3309 (Fla. 5th DCA 2012); Resp. Ex. S, Petition for
Belated Appeal. In the petition, Verdell stated:
On March 12th, 2012, the Petitioner asked
[sic] filed a motion to correct an illegal
sentence. The trial court, the Honorable Raul
A. Zambrano, apparently denied the motion on
May 14th, 2012, but did [not] cause a copy of
the order denying the motion to be mailed to
the Petitioner until June 21st, 2012. . . .
Petitioner had no knowledge that the motion
had been denied until he received the order
denying the motion in late June, 2012. Had the
petitioner received the order, the notice of
appeal would have been timely filed.
Resp. Ex. S at 1, ¶ 3 (emphasis added). The appellate court
appointed Circuit Court Judge Raul A. Zambrano to serve as a
Commissioner of the Fifth District Court of Appeals. See Resp. Ex.
S, Commissioner's Findings of Fact and Recommendation at 1, dated
November 19, 2012. The Commissioner held an evidentiary hearing to
determine whether Verdell was entitled to a belated appeal of the
court's denial of his 2nd Rule 3.800 motion, and ultimately found:
An order denying the Defendant, John
Verdell's second Motion to Correct Illegal
Sentence was signed by this Judge on May 14,
2012. Judicial Assistant Teresa Crisp Smith
testified as to standard procedures once an
order was signed: the order would have been
copied and mailed to the Defendant, a copy
would have been faxed to the Office of the
State Attorney, and the original sent to the
Clerk's Office to be docketed and filed. The
copy mailed to the Defendant would be via an
envelope from the judge's office by way of the
courthouse mailroom.
Pricilla
Thomas,
General
Services
Specialist
at
Lawtey
Correctional
Institution[,] testified under oath as to the
6

procedures at that facility and as to Mr.
Verdell's mail from the Flagler County
Courthouse in particular. Legal mail is not
opened in the mailroom at Lawtey but is opened
in front of the inmate to avoid contraband,
and handed directly to the inmate who then
initials and dates the receipt of said mail.
Subsequent to the entry of the May 14, 2012
Order Denying the Defendant's Motion to
Correct Illegal Sentence Ms. Thomas testified
that Mr. Verdell received and signed for mail
from Circuit Court Judge Raul Zambrano on May
18, 2012 (attached).[3] This Court has reviewed
its records and did not send any other
correspondence to the Petitioner except the
Order Denying the Motion to Correct Illegal
Sentence at any time relevant to this inquiry.
Therefore, it is the recommendation of
this
Commissioner
that
Petitioner
John
Verdell's request to file a belated appeal be
denied.
Id. at 1-2 (footnotes omitted). The appellate court denied the
petition on December 13, 2012, see Resp. Ex. S, and the mandate
issued on December 31, 2012, see case no. 5D12-3309.
Verdell asserts that his petition for belated appeal of the
circuit court's denial of his 2nd Rule 3.800 motion tolls the
running of the one-year limitations period, and therefore, his
federal Petition is timely. See Petition at 17-18. To toll the oneyear limitations period under § 2244(d)(2), a proceeding must be a

3

The May 2012 incoming legal and/or privileged mail log for
Lawtey Correctional Institution shows that Verdell received and
signed for mail from Circuit Judge Raul Zambrano on May 18, 2012.
Resp.
Ex.
S,
Commissioner's
Findings
of
Fact
and
See
Recommendation, Appendix A.

7

"properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim."
Espinosa v. Sec'y, Dep't of Corr., 804 F.3d 1137, 1140 (11th Cir.
2015) (quoting 28 U.S.C. § 2244(d)(2)). As previously stated, the
state appellate court denied Verdell's petition for belated appeal.
As recognized in Espinosa,
When
the
state
appellate
court
denied
[petitioner]'s petition for belated appeal, it
never considered the merits of his underlying
claims. [Petitioner]'s petition for belated
appeal never triggered a reexamination of his
conviction or sentence and, as a result,
failed to toll the federal limitation period.
Id. at 1142. Similarly, Verdell's petition for belated appeal
"never triggered a reexamination of his conviction or sentence,"
id., and therefore it failed to statutorily toll the federal
limitations period. Thus, when the thirty days (from the circuit
court's May 14th denial) to file an appeal expired, the one-year
limitations began to run again the next day, June 14, 2012, and
expired 337 days later on May 17, 2013.
With the one-year limitations period having expired on May 17,
2013, none of Verdell's motions filed after May 17, 2013, could
toll the limitations period because there was no period remaining
to be tolled.4 See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th

4

Verdell filed a pro se motion for post-conviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 on June 17,
2013. See Resp. Ex. T. The court denied the Rule 3.850 motion on
February 27, 2014. See Resp. Ex. U. On July 29, 2014, the appellate
court affirmed the trial court's denial per curiam, see Resp. Ex.
8

Cir. 2004) (stating that, where a state prisoner files postconviction motions in state court after the AEDPA limitations
period has expired, those filings cannot toll the limitations
period because "once a deadline has expired, there is nothing left
to toll"). Given the record, Verdell's December 3, 2014 Petition is
untimely

filed,

and

due

to

be

dismissed

unless

Verdell

can

establish that equitable tolling of the statute of limitations is
warranted.
"When a prisoner files for habeas corpus relief outside the
one-year limitations period, a district court may still entertain
the petition if the petitioner establishes that he is entitled to
equitable tolling." Damren v. Florida, 776 F.3d 816, 821 (11th Cir.
2015), cert. denied, 137 S.Ct. 830 (2017). The United States
Supreme Court has established a two-prong test for the application
of equitable tolling, stating that a petitioner must show "(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quotations
and citation omitted); Cadet v. Fla. Dep't of Corr., 853 F.3d 1216,
1221 (11th Cir. 2017), petition for cert. filed, No. 17-6146 (U.S.
July 25, 2017). As an extraordinary remedy, equitable tolling is
"limited

to

rare

and

exceptional

circumstances

and

typically

V, and the mandate issued on August 22, 2014, see Resp. W. The
court denied Verdell's motion for rehearing on September 12, 2014.
See Resp. Exs. X; Y.
9

applied

sparingly."

Cadet,

853

F.3d

at

1221

(quotations

and

citation omitted). The burden is on Verdell to make a showing of
extraordinary circumstances that "are both beyond his control and
unavoidable even with diligence," and this high hurdle will not be
easily surmounted. Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir.
2005) (quotations and citation omitted); Wade v. Battle, 379 F.3d
1254, 1265 (11th Cir. 2004) (per curiam) (citations omitted).
Verdell asserts that he is entitled to equitable tolling for
the period from May 25, 2012 (when he allegedly handed his notice
of appeal of the trial court's denial of his 2nd Rule 3.800 motion
to prison authorities at Gulf Correctional Institution for mailing
to the circuit court's clerk's office) through December 13, 2012
(when the appellate court denied his petition for belated appeal).
See Reply at 7, 12. He states that "the ineptness" of the prison
officials

and

the

prison's

outgoing

mail

policies

created

extraordinary circumstances that affected the timing of his appeal.
Id. at 12. He explains that Gulf Correctional Institution did not
maintain an outgoing legal mail log and would not date stamp an
inmate's copy of any outgoing legal mail, and therefore the
prison's procedures deprived him of the opportunity to show that he
handed his notice of appeal to the prison authorities for mailing
before the thirty-day appeal period had run. See id. at 6.
Notably, when Verdell filed his August 21, 2012 petition for
belated appeal, he never argued that he had attempted to file a

10

timely appeal of the 2nd Rule 3.800 motion. See Resp. Ex. S.
Instead, he asserted that he did not know the trial court had
denied his 2nd Rule 3.800 motion until late June 2012, when he
received a copy of the order.

See id. at 1, ¶ 3. He also stated:

"Had the petitioner received the order, the notice of appeal would
have been timely filed." Id. Verdell has not shown extraordinary
circumstances that are both beyond his control and unavoidable with
diligence. Given the record, the Court finds Verdell is not
entitled to equitable tolling for the period from May 25, 2012,
through December 13, 2012.
Verdell has not shown a justifiable reason why the dictates of
the one-year limitations 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).
III. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Verdell seeks issuance of a certificate of appealability,
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, Verdell "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
11

(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)).
Where

a

constitutional

district
claims

court
on

the

has

rejected

merits,

the

a petitioner's
petitioner

must

demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

Respondents' request to dismiss (Doc. 10) the Petition as

untimely is GRANTED, and this action is DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment dismissing

this case with prejudice.
3.

If Verdell appeals the dismissal of the Petition, the

Court denies a certificate of appealability. Because this Court has

12

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 of the Court is directed to close this case and

terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 11th day of
October, 2017.

sc 10/5
c:
John Kennedy Verdell, FDOC #709295
Counsel of Record

13