Whitfield v. Secretary, Department of Corrections et al

Filing 18

ORDER dismissing the petition and the case with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 10/23/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TERRANCE WHITFIELD,
Petitioner,
vs.

Case No. 3:15-cv-660-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) on April 15, 2015, pursuant to the
mailbox rule.1

He challenges his 2011 Duval County conviction for

robbery while armed with a firearm and possession of a firearm by
a juvenile delinquent.
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
1

The Petition was filed with the Clerk on May 28, 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 15, 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 limitation period under
28 U.S.C. § 2244(d).

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).
Respondents, in their Motion to Dismiss Petition for Writ of
Habeas Corpus as Untimely (Response) (Doc. 12), contend that
Petitioner has failed to comply with the one-year limitation
period.

They provide exhibits in support of their contention.
2

(Doc. 12).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. 7).

Petitioner filed a reply

(Reply) (Doc. 16).
The Court will provide a brief procedural history. Petitioner
entered and the trial court accepted a plea of guilty.

Ex. B.

January 31, 2011, judgment and sentence were entered.
142-46.

Ex. A at

On direct appeal, counsel filed an Anders brief.

The 1st DCA affirmed per curiam on September 8, 2011.
mandate issued on October 4, 2011.

Ex. G.

On

Ex. D.

Ex. F.

The

The conviction became

final on December 7, 2011 (90 days after September 8, 2011)
("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.").
The limitation period began to run on December 8, 2011, and
ran for 314 days, until Petitioner filed a Rule 3.800(a) motion in
the circuit court on October 17, 2012.

Ex. L.

The one-year

limitation period remain tolled until the circuit court denied the

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

motion in an order filed on November 21, 2012.

Ex. N.

The

limitation period began to run on November 22, 2012, and ran for a
period of fifteen days, until Petitioner filed his first Rule 3.850
post conviction motion on December 7, 2012.

Ex. O at 1-28, 54-84.

The circuit court denied the Rule 3.850 motion in an order filed on
August 15, 2014.

Id. at 88-127.

The one-year limitation period

was tolled until December 23, 2014, when the mandate issued.
Q.

Ex.

The limitation period began to run on December 24, 2014, and

the one-year period expired thirty-six days later, on Thursday,
January 29, 2015.3
Although Petitioner filed two motions seeking mitigation of
his sentence pursuant to Fla. R. Crim. P. Rule 3.800(c), these
motions do not qualify as applications for collateral review and do
not toll the limitation period.

Ex. H; Ex. J.

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,

3

Respondents contend that the limitation period expired on
February 4, 2015. Response at 6. They also assert that Petitioner
provided his federal petition to the Florida Department of
Corrections on June 16, 2015.
Id.
The record demonstrates
otherwise.
These particular dates are either incorrectly
calculated or erroneously recorded by Respondents. Nevertheless,
the Court finds that the Petition is untimely filed as set forth
above.
4

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) motions.
Although Petitioner filed a second Rule 3.850 motion on
September 10, 2014, Ex. R, the circuit court denied the motion as
untimely filed, as well as for other reasons.

Ex. S.

Thus, this

motion for post conviction relief did not toll the running of the
limitation period.

See Pace v. DiGuglielmo, 544 U.S. 408, 413

(2005) (a post conviction motion found to be untimely filed is not
properly filed and does not toll).
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

5

the

burden

of

showing

that

equitable

tolling

is

warranted.4

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).5
Accordingly, it is now
ORDERED:
1.

The Petition and the case are DISMISSED WITH PREJUDICE.

2.

The Clerk shall enter judgment dismissing the Petition

with prejudice and dismissing the case with prejudice.
3.

The Clerk shall close the case.

4

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 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). It is the petitioner's burden of persuasion,
and this Petitioner has not asserted that he is entitled to
equitable tolling or met the burden. See Lugo v. Sec'y, Fla. Dep't
of Corr., 750 F.3d 1198, 1209 (11th Cir. 2014) (11th Cir. 2012)),
cert. denied, 135 S.Ct. 1171 (2015). Instead, Petitioner contends
his Petition was timely filed. Petition at 13-14; Reply at 8. As
stated above, the Court finds that the Petition is untimely filed.
5

In his grounds for habeas relief, Petitioner claims that
there was lack of jurisdiction for uncharged offenses, and due
process and equal protection violations occurred at sentencing.
Petition at 5-7. He does not, however, claim actual innocence, see
Petition & Reply, and has failed to demonstrate that he has new
evidence establishing actual innocence.
6

4.

If Petitioner appeals the dismissal of the Petition, the

Court denies a certificate of appealability.6
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
filed in this case.

Such termination shall serve as a denial of

the motion.
DONE AND ORDERED at Jacksonville, Florida, this 23rd day of
October, 2017.

sa 10/20
c:
Terrance Whitfield
Counsel of Record

6

This Court should issue a certificate of appealability only
if a 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)).
Upon due consideration, this Court will deny a
certificate of appealability.
7