Hay v. Secretary, Florida Department of Corrections et al
ORDER denying 16 motion to proceed; denying 16 motion for appointment of counsel for evidentiary hearing and request for an evidentiary hearing; granting 12 motion to dismiss the petition as untimely; dismissing the petition with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 8/4/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LAMAR D. HAY, IV,
Case No. 3:15-cv-619-J-39PDB
SECRETARY, DOC, et al.,
Petitioner initiated this action by filing a pro se Petition
(Petition) (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on May 15, 2015, pursuant to the mailbox rule.1
challenges 2012 state court (Clay County) judgments of conviction
for burglary of a structure or conveyance while armed (case no.
1871); burglary of a dwelling structure or conveyance while armed,
possession of a firearm by a convicted felony, grand theft, and
driving while license suspended (case no. 1872); burglary of a
dwelling and grand theft (case no. 1921); burglary of a dwelling
and grand theft (case no. 1922); and burglary of a dwelling and
grand theft (case no. 1923).
Respondents, in their Motion to
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). In this instance, the Petition was provided to
the prison authorities for mailing and stamped on May 15, 2015.
Petition at 1. 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).
Dismiss and Alternative First Response to Order to Show Cause
(Response) (Doc. 12),2 argue that the Petition must be dismissed as
untimely. Petitioner filed a Motion to Proceed and First Response
to Respondent's Motion to Dismiss and Motion for Appointment of
Counsel for Evidentiary Hearing (Reply) (Doc. 16). See Order (Doc.
The Antiterrorism and Effective Death Penalty Act (AEDPA)
(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.
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
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
The Court hereinafter refers to the Exhibits (Doc. 12)
submitted in support of the Response as "Ex."
(D) the date on which the factual
predicate of the claim or claims
presented could have been discovered
(2) The time during which a properly filed
application for State post-conviction or other
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
Petitioner was charged by information with numerous offenses.
Ex. B, Ex. D, Ex. F, Ex. H, and Ex. J.
On November 8, 2012,
Petitioner signed a Plea of Guilty and Negotiated Sentence form.
negotiated sentence of thirty years, concurrent. Id. at 30-40. As
part of the agreement, the state waived the minimum mandatory
Id. at 30-40, 57-60, and 68-71.
Judgment was entered on November 8, 2012, and Petitioner was
sentenced in accordance with the plea agreement.
Direct appeals were not taken.
Id. at 53-92.
Thus, the judgments became final
thirty days later on Saturday, December 8, 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).
Since the judgment became final on the
weekend, the Court will consider the relevant one-year limitation
period as running from Monday, December 10, 2012, to its expiration
date, December 10, 2013.
Although Petitioner filed a Motion for Postconviction Relief
on March 13, 2014, this motion did not toll the federal one-year
limitation period because it had already expired.3
Ex. K at 1-23.
See Tinker v. Moore, 255 F.3d 1331, 1334-35 (11th Cir. 2001)
(holding that, even though Florida law allows a prisoner two years
to file a Rule 3.850 motion, the prisoner must file the motion
within one year after his conviction becomes final in order to toll
the one-year limitation period), cert. denied, 534 U.S. 1144
(2002); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (per
curiam) ("Under § 2244(d)(2), even 'properly filed' state-court
petitions must be 'pending' in order to toll the limitations
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).
Thus, this action was not timely
Based on the foregoing, the Petition is untimely and due to be
dismissed unless Petitioner can establish that equitable tolling of
the statute of limitations is warranted. The Court recognizes that
"§ 2244(d) is subject to equitable tolling in appropriate cases."
The April 3, 2015 Motion for Post Conviction Relief did not
toll the federal one-year limitation period for the same reason.
Holland v. Florida, 560 U.S. 631, 645 (2010).
There is a two-
pronged test for equitable tolling, and it requires a petitioner to
demonstrate "(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstances stood in his way and
prevented timely filing."
Id. at 649 (quotation marks omitted);
see Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (stating
that equitable tolling "is a remedy that must be used sparingly");
see also Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (per
curiam) (noting that the Eleventh Circuit "has held that an inmate
bears a strong burden to show specific facts to support his claim
Although Petitioner does not claim he is entitled to equitable
tolling in his Reply, he suggests that he is entitled to it in the
Petition at 16-17.
He states that as a confused layman
on psychotropic medication at mental health prison unit, his
untimeliness should be excused.
He alleges that his medication
interfered with his ability to understand the time table of the
extraordinary circumstances that are both beyond his control and
unavoidable with diligence, and this high hurdle is not easily
Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005),
cert. denied, 546 U.S. 1108 (2006); Wade v. Battle, 379 F.3d 1254,
1265 (11th Cir. 2004) (per curiam) (citations omitted).
"circumstances warranting equitable tolling"
do not include restricted access to a law
Miller v. Florida, 307 Fed. Appx.
366, 368 (11th Cir. 2009) (citing Akins v.
United States, 204 F.3d 1086, 1089-90 (11th
Cir. 2000); see also Paulcin v. McDonough, 259
Fed. Appx. 211, 213 (11th Cir. 2007)
("Paulcin's transfer to county jail and denial
of access to his legal papers and the law
library did not constitute extraordinary
circumstances."); Coleman v. Mosley, 2008 WL
2039483 at *3 (M.D. Ala. May 12, 2008)
("Petitioner'[s] pro se status, ignorance of
the law, limited law library access, and lack
of legal assistance are insufficient grounds
on which to toll the limitation period.").
Couch v. Talladega Circuit Courts, No. 1:11-cv-1737-JFG-MHH, 2013
WL 3356908, at *5 (N.D. Ala. July 3, 2013) (Not Reported in
In this instance, no extraordinary circumstances stood in
Petitioner's way and prevented him from timely filing his Petition.
He has not met the burden of showing that equitable tolling is
Also, Petitioner did not exercise due diligence as he
did not diligently pursue his state court remedies.
allowed the one-year limitation period to expire by failing to
properly file an application for state post-conviction or other
collateral review within the one-year limitation period.
bachelors degree from Jacksonville University.
Petition (Doc. 1-3
Even if this is not the case, during the plea colloquy,
Petitioner told the court he went over the plea form with counsel,
Petitioner confirmed that he understood it, and he agreed that he
Ex. K at 36, 50-51.
Thus, the record demonstrates that
Petitioner is neither illiterate or uneducated.
While the Court
recognizes that the lack of a formal legal education presents
challenges, it does not excuse Petitioner from complying with the
time constraints for filing a federal petition.
Moore v. Bryant,
No. 5:06cv150/RS/EMT, 2007 WL 788424, at *2-*3 (N.D. Fla. Feb. 12,
2007) (Not Reported in F.Supp.2d) (Report and Recommendation),
report and recommendation adopted by the District Court on March
14, 2007. Simply, pro se representation alone is not a meritorious
excuse and is insufficient to warrant equitable tolling.
v. United States, 544 U.S. 295, 311 (2005).
To the extent Petitioner is claiming that he was mentally
December 10, 2012 through December 10, 2013, he has not adequately
supported such a claim with evidence from that specific period.
There is no evidence of a mental condition or infirmity other than
those stated in the trial court record and those presented in the
records attached to the Petition and Reply.
Indeed, the record
shows that Dr. William R. Meadows, Ph.D., Forensic Psychologist,
found Petitioner competent to proceed prior to Petitioner's plea.
Ex. K at 6, 46, 109-11.
The plea colloquy shows that Petitioner
appropriately responded to all questions posed to him.
Ex. K at
Upon review, there is nothing in the record showing that
Petitioner exhibited any unusual, inappropriate or disruptive
behavior during the plea proceeding or sentencing.
A simple allegation of mental incompetency, without a showing
of a causal connection between the incompetence and the failure to
file a timely application, does not justify equitable tolling.
Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005); see
also Fox v. McNeil, 373 F. App'x. 32, 34 (11th Cir. 2010) (per
curiam) (finding the petitioner had not met his burden to prove
that equitable tolling was appropriate where he had "failed to
establish a causal link between his claims of mental incompetence
and the untimely filing of his federal habeas corpus petition"),
cert. denied, 562 U.S. 1202 (2011).
Indeed, some form of "mental
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.
2009) (per curiam) (citation omitted).
Instead, Petitioner is
required to show that his mental illness was so profound and
debilitating that he was unable to file a timely habeas petition,
given his mental limitations. Lewis v. Howerton, No. 1:07-cv-2803JEC-WEJ, 2012 WL 4514044, at *16 (N.D. Ga. Sept. 30, 2012) (Not
Reported in F.Supp.2d) ("the question before the Court is whether
the mental illness [petitioner] suffered was so profound and
debilitating that he would have been unable to file a timely habeas
petition, given these limitations"). Petitioner has failed to show
that his mental illness was so profound during the relevant period
that he was unable to file a timely habeas petition.
Petitioner may have suffered or is now suffering from mental
impairments, without more, this mental condition does not justify
equitable tolling for the relevant period.
Lawrence, 421 F.3d at
"To be entitled to equitable tolling on the basis of mental
illness, a petitioner must show more than that it is difficult for
him to understand and act upon his legal rights; rather, he must
show that he was incapable of preparing and filing a federal habeas
petition or post-conviction motion any earlier than he did." Moore
v. Bryant, No. 8:06-CV-1365-T30TBM, 2006 WL 3091530, at *2 (M.D.
Fla. Oct. 30, 2006) (Not Reported in F.Supp.2d).
has failed to show that his mental condition during the one-year
limitation period caused the untimely filing.
allegation that being on medication and being assigned to a mental
health camp, with little to no help, caused his untimeliness in
filing a federal petition,4 is certainly insufficient to satisfy
the requirement that Petitioner present evidence to create a
The record shows that Petitioner has been diagnosed with
Bipolar disorder and Schizophrenia, and after being off of his
psychiatric medications for a couple of years, he was "acutely
manic" on July 18, 2012. Petition (Doc. 1-3 at 9). On August 9,
2012, he was admitted on Baker Act (Schizoaffective Disorder,
bipolar type, 295.70; PTSD 309.81) and discharged on medication.
Petition (Doc. 1-3 at 3, 5). Some time after his court appointment
on October 2, 2012, Dr. Meadows found Petitioner competent to
impairment and his ability to file a timely petition.
Upon review, Petitioner has not presented any evidence that he
was incompetent at the time of his November 8, 2012 plea, or at any
time after that date.5
Indeed, after an extensive review of the
record, this Court opines that the record refutes Petitioner's
assertion of complete mental incapacity during the relevant AEDPA
one-year time period.
The record establishes that any mental
impairment was not sufficient to render him mentally incapacitated
and would not have affected his ability to timely file the petition
in this Court.
Indeed, Petitioner has failed to show profound
mental incapacity during the relevant time period, and the record
supports the conclusion that Petitioner was mentally capable of
filing a timely petition in this Court.
See Taylor v. Lightner,
No. 14-00156-WS-N, 2015 WL 3407622, at *5 (S.D. Ala. May 27, 2015)
(Not Reported in F.Supp.3d) (concluding that the petitioner failed
to present evidence in support of his assertion or shown any causal
connection between the alleged mental deficiency and his ability to
timely file his petition); Scott v. Tucker, No. 3:11cv64/WS/EMT,
The circuit court, in denying post conviction relief, noted
the following: Petitioner conceded that Dr. Meadows found him
competent to proceed; Petitioner stated on the record that he
understood the consequences of his plea; and, he accepted the
benefit of the bargain. Ex. K at 48, Order Denying Defendant's
Motion for Postconviction Relief.
The First District Court of
Appeal affirmed per curiam the denial of post conviction relief.
2012 WL 1314087, at *6 (N.D. Fla. Mar. 15, 2012) (Not Reported in
understand and appreciate federal law and procedure due to a mental
disorder is insufficient to satisfy the requirements for finding
adopted by Scott v. Tucker, 2012 WL 1313500 (N.D. Fla. Apr. 17,
As such, Petitioner is not entitled to the extraordinary
remedy of equitable tolling and his Petition is due to be dismissed
In his Reply, Petitioner still seeks to have the
merits of the underlying claims of his Petition addressed, but,
instead of asserting entitlement to equitable tolling, he contends
that this Court should address the merits of the Petition because
he is actually innocent.
Reply at 1.
To invoke the fundamental
miscarriage of justice exception to AEDPA's statute of limitations,
innocence with new evidence that was not available at the time of
See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-32
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)).
This Court summarized the requirements
to show gateway innocence:
"An actual-innocence claim must be
supported 'with new reliable evidence—whether
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.
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
Letemps v. Sec'y, Fla. Dep't of Corr., 114 F.Supp.3d 1216, 1221
(M.D. Fla. 2015).
Petitioner, however, points to no new evidence that was not
available at the time of his plea.
For case number 1871, he
contends that his grandfather was at home at the time of the
taking, Petitioner and his brother were guests at the grandfather's
house, Petitioner's brother took the gun without Petitioner's
knowledge, and Petitioner gave his brother a ride home.
Petitioner claims insufficiency of the evidence that he
possessed the firearm.
Id. at 2.
All of the referenced evidence
was available at the time of the plea.
In case number 1872, Petitioner claims he and his brother had
permission to be in the grandfather's house and Petitioner had a
key to the house given to him by his grandfather.
claims that he is innocent of burglary and this simply constituted
possession of a firearm.
Once again, all of this evidence was
available at the time of the plea.
It does not constitute new
In case number 1921, Petitioner asserts he is innocent of
burglary because his grandfather was home, Petitioner was doing
work on his grandfather's house, and the taking was a theft.
Again this is not new evidence.
All of this evidence would have
been available at the time of the plea proceeding.
Finally, in case number 1922, Petitioner claims he is innocent
of burglary and theft because his grandfather told Petitioner he
could come by the house and pick up an old cell phone, a gift to
grandfather's house,6 left a note, and did the dishes and folded
the laundry to thank his grandfather.
This is not new
evidence that was unavailable at the time of the plea.
Although not a model of clarity, Petitioner is apparently
asserting that the police confused his grandfather about the fact
that he gave a key to his house to Petitioner. Reply at 3. Again,
this is not new evidence.
Petitioner's vague and conclusory
statement of having witnesses to prove his innocence of burglary is
insufficient. Petitioner asserts he was never "allowed" to call
The plea colloquy belies this assertion.
Petitioner made a conscious and voluntary choice to not call
witnesses and accept a plea bargain for a negotiated sentence. The
circuit court, during the course of the plea colloquy, informed
Petitioner that he had the right to call witnesses on his behalf,
and by accepting the negotiated plea, he was giving up the right to
a jury trial. Ex. K at 35. Petitioner acknowledged his rights and
said that he understood. Id. In hindsight, Petitioner may not be
pleased with his sentence, but he freely and voluntarily accepted
the negotiated plea agreement.
Pursuant to Schlup and its progeny, Petitioner is required to
offer new reliable evidence that was not available at the time of
Petitioner has not presented any new exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
In conclusion, Petitioner does not assert or demonstrate that
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:
Petitioner's Motion to Proceed (Doc. 16) is DENIED.
Evidentiary Hearing (Doc. 16) and request for an evidentiary
hearing are DENIED.
Respondents' Motion to Dismiss (Doc. 12) the Petition as
untimely is GRANTED.
The Petition (Doc. 1) is DISMISSED with prejudice.
The Clerk shall enter judgment dismissing the Petition
with prejudice and dismissing this case with prejudice.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.7
Because this Court
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 Clerk shall close this case.
DONE AND ORDERED at Jacksonville, Florida this 4th day of
LaMar D. Hay, IV
Counsel of Record
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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