Lamberson v. Secretary, Florida Department of Corrections et al
Filing
15
ORDER granting 8 motion to dismiss petition as untimely; 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 10/24/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HENRY L. LAMB,
Petitioner,
vs.
Case No. 3:15-cv-531-J-39MCR
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) on April 21, 2015, pursuant to the
mailbox rule.1
He challenges his 2010 Duval County conviction for
burglary while armed, attempted murder I, attempted murder II,
assault, grand theft, and fleeing a police officer.2
Id. at 1.
1
The Petition was filed with the Clerk on April 24, 2015;
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 (April 21, 2015). 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).
2
Petitioner is no longer confined in the Florida Department
of Corrections.
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
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;
©)
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).
2
Respondents, in their Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely and, Alternatively, Answer to Petition
(Response) (Doc. 8), contend that Petitioner has failed to comply
with the limitation period.
their contention.
(Doc. 9).3
They provide exhibits in support of
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. 4).
Petitioner filed a reply (Reply) (Doc. 10).
Although Petitioner
requests the appointment of counsel and an evidentiary hearing,
Reply at 1, the Court declines to appoint counsel as no evidentiary
proceedings are required in this Court.
The Court will address Respondents' claim of untimeliness.
A
thorough rendition of the procedural history is provided in the
Response at 2-18. In pertinent part with regard to the question of
timeliness, Petitioner entered and the trial court accepted a
negotiated plea of guilty.
Ex. J; Ex. K.
judgment and sentence were entered.
take a direct appeal.
Ex. M at 3.
Ex. L.
On March 10, 2010,
Petitioner did not
His judgment and sentence
became final on Friday, April 9, 2010, when the thirty-day time
period to appeal expired.
Green v. Tucker, No. 3:10cv418/MCR/MD,
3
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
2011 WL 6942895, at *3 (N.D. Fla. Nov. 17, 2011) (Not Reported in
F.Supp.2d) ("It is well established that when a Florida defendant
does not directly appeal his conviction, his conviction becomes
final thirty (30) days after rendition of the order of judgment of
conviction and sentence."), report and recommendation adopted by
2012 WL 13552 (N.D. Fla. Jan. 4, 2012).
The limitation period began to run on April 10, 2010, and ran
for thirteen days, until Petitioner filed his first Rule 3.850 post
conviction motion on April 23, 2010.
Ex. N.
The circuit court
denied the Rule 3.850 motion in an order filed on December 2, 2010.
Ex. AA.
The one-year limitation period was tolled until June 6,
2011, when the mandate issued.
Ex. FF.
The limitation period
began to run on June 7, 2011, and ran for a period of twenty-one
days, until Petitioner filed a motion for post conviction relief in
the circuit court on June 28, 2011.
Ex. GG.
In an order filed on
August 4, 2011, the circuit court denied the motion, finding it to
be successive.
Ex. HH.
The limitation period remained tolled
until the thirty-day period to appeal expired on September 6,
2011.4
The clock began to run on September 7, 2011 and continued
to run untolled,5 until Petitioner filed a petition for writ of
4
The thirty-day period ran out on September 3, 2011, a
Saturday, and Petitioner had until Tuesday, September 6, 2011, to
file his appeal due to the holiday, which fell on Monday, September
5, 2011.
5
Although Petitioner filed a motion seeking mitigation of his
sentence pursuant to Fla. R. Crim. P. Rule 3.800(c), this motion
4
habeas corpus in the circuit court on March 5, 2012.
Ex. KK.
Thus, the limitation period ran for a period of 180 days until the
filing of the petition.
The limitation period was again tolled
upon the filing of the petition.
petition on March 27, 2012.
The circuit court denied the
Ex. LL.
rehearing, and rehearing was denied.
Petitioner moved for
Ex. MM; Ex. NN.
Petitioner
did not appeal, and the thirty-day period for filing an appeal
expired on Wednesday, May 23, 2012.
Thus, the federal limitation
period began to run on May 24, 2012, and the one-year period
expired on Monday, October 22, 2012, when the remaining 151 days
ran out.
Although Petitioner filed a petition for belated appeal of the
order denying the petition for writ of habeas corpus prior to the
expiration of the limitation period, asserting that he did not
does not qualify as an application for collateral review and does
not toll the limitation period. Ex. II; Ex. JJ. 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, 565
U.S. 1236 (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
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 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.
5
timely receive a copy of the order denying rehearing, Ex. PP, the
petition for belated appeal "does not qualify as an application for
collateral review."
Danny v. Sec'y, Fla. Dep't of Corr., 811 F.3d
1301, 1304 (11th Cir. 2016).
As a result, there was no statutory
tolling of the one-year statute of limitation by the filing of a
motion for belated appeal.
Simply, "filing a petition for belated
appeal of an order denying state collateral relief does not toll
the federal limitation period for a petition for a writ of habeas
corpus."
Id. at 1305 (quoting Espinosa v. Sec'y, Dep't of Corr.,
804 F.3d 1137, 1141 (11th Cir. 2015)).
Furthermore, the First
District Court of Appeal denied the petition for belated appeal,
Ex. QQ, and denied rehearing.
Ex. SS.
Thus, the state court did
not reopen direct review.
Although on December 10, 2012, Petitioner filed a petition for
belated appeal from the March 10, 2010 judgment and sentence, it
was filed after the one-year period expired, and it was denied.
Ex. TT; Ex. UU; Ex. VV; Ex. WW; Ex. XX; Ex. YY.
It never triggered
"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).
In this case, there was no "lift[ing of] 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
(S.D. Fla. Feb. 22, 2017).
6
No. 1614451, 2017 WL 962486
Finally, the remainder of Petitioner's post conviction filings
did not operate to toll the limitations period as they were filed
following the expiration of the limitations period. See Webster v.
Moore, 199 F.3d 1256, 1259 (11th Cir.) (per curiam), cert. denied,
531 U.S. 991 (2000) ("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.").
Based on the record before the Court, Petitioner has not
presented any justifiable reason why the dictates of the one-year
limitation period should not be imposed upon him.
Petitioner has
failed to show an extraordinary circumstance, and he has not met
the
burden
of
showing
that
equitable
6
tolling
is
warranted.6
In order to be entitled to equitable tolling a petitioner is
required to demonstrate two criteria: (1) the diligent pursuit of
his rights and (2) some extraordinary circumstance that stood in
his way and that prevented timely filing. Agnew, 16-14451-CIV,
2017 WL 962489, at *5.
It is the petitioner's burden of
persuasion, and this Petitioner has not met the burden. Indeed, he
has not pled "enough facts that, if true, would justify an
evidentiary hearing on the issue." Lugo v. Sec'y, Fla. Dep't of
Corr., 750 F.3d 1198, 1209 (11th Cir. 2014) (quoting Hutchinson v.
Fla., 677 F.3d 1097, 1099 (11th Cir. 2012)), cert. denied, 135
S.Ct. 1171 (2015). Petitioner claims his judgment was void, but
the Court is not persuaded. Petitioner's original conviction was
reversed and remanded on direct appeal, Ex. G, and when Petitioner
had the opportunity to enter a negotiated plea of guilty, he took
it. Ex. I. As noted by the circuit court, when the First District
addressed an issue concerning one count of the judgment and
sentence and reversed and remanded the matter to the trial court,
7
Additionally, Petitioner had ample time to exhaust state remedies
and prepare and file a federal petition.
Therefore, this Court
will dismiss the case with prejudice pursuant to 28 U.S.C. §
2244(d).7
Accordingly, it is now
ORDERED:
1.
Respondents' Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely (Doc. 8) is GRANTED.
2.
The Petition and the case are DISMISSED WITH PREJUDICE.
3.
The Clerk shall enter judgment dismissing the Petition
with prejudice and dismissing the case with prejudice.
4.
The Clerk shall close the case.
5.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.8
Because this Court
the circuit court reversed all of the convictions and sentences in
the case, which placed the Petitioner back to the pretrial stage.
Ex. AAA at 34. Petitioner elected to enter into a negotiated plea
with the state as to all charges. Id. The decision of the First
District reads "reversed and remanded," and there is no language of
limitation. Ex. G. Based on this appellate decision, the Florida
Department of Corrections released Petitioner from the custody of
the Department to face a new trial, Ex. I, or as occurred in this
case, to enter into a negotiated plea as to all counts as accepted
by the circuit court.
7
In his grounds for habeas relief, Petitioner contends that
there were double jeopardy and speedy trial violations. Petition
at 5-6. He does not, however, claim actual innocence, see Petition
& Reply, and has failed to demonstrate that he has new evidence
establishing actual innocence.
8
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
8
has
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.
DONE AND ORDERED at Jacksonville, Florida, this 24th day of
October, 2017.
sa 10/19
c:
Henry L. Lamb
Counsel of Record
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.
9
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