Slocum v. Secretary, Department of Corrections et al

Filing 19

ORDER 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 10/30/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

LAWRENCE DEWAYNE SLOCUM,
Petitioner,
vs.

Case No. 3:15-cv-1153-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 September 22, 2015, pursuant to the
mailbox rule.1

He challenges his 2011 Union County conviction for

robbery and burglary with battery.

Id. at 1.

Respondents, in their Motion to Dismiss (Response) (Doc. 16),
contend that Petitioner has failed to comply with the one-year
limitation period set forth in 28 U.S.C. § 2244(d).

1

They provide

The Petition was filed with the Clerk on September 29, 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 (September 22, 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).

exhibits in support of their contention.

(Doc. 17).2

Petitioner

was given admonitions and a time frame to respond to the request to
dismiss the Petition contained within the Response.
Order (Doc. 10).

See Court's

Petitioner filed a Reply to Respondents' Motion

to Dismiss (Reply) (Doc. 18). Petitioner counters the Respondents'
contention of untimeliness by asserting that Respondents' failed to
take into consideration the law governing the finality of a state
court judgment and the related calculation of timeliness.

Id. at

1.
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

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.
2

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).
The Court will provide the relevant procedural history.

On

September 25, 2006, a jury returned a verdict finding Petitioner
guilty of robbery and burglary of a conveyance with battery.

Ex.

H at 34. Judgment and sentence were entered on September 25, 2006.
Ex. B at 3.

Petitioner filed a Rule 3.850 motion for post

conviction relief July 9, 2010.

Ex. H at 1-23.

In an order filed

July 27, 2011, the circuit court granted in part and denied in part
the

Rule

3.850

motion,

finding

Petitioner

resentenced by the original sentencing judge.
October

19,

2011,

the

original

sentencing

entitled

to

be

Id. at 24-31.

On

judge

resentenced

Petitioner to fifteen years with a minimum mandatory term of

3

fifteen years on the first count, to be followed by fifteen years
on the second count.

Id. at 97-101; 128-39.

On November 7, 2011,

Petitioner, through counsel, filed a notice of appeal, appealing
the Amended order of judgment and sentence rendered October 19,
2011.

Id. at 106.

Time to appeal the partial denial of the Rule

3.850 motion expired on August 26, 2011, thirty days after the
court's decision.

See Ex. K; Ex. M at 4.

Petitioner untimely

filed his pro se notice of appeal of the order denying his Rule
3.850 motion on November 9, 2011, pursuant to the mailbox rule.
Id. at 112-13.
The brief on post conviction appeal filed by counsel raised
one issue: the trial court erred in summarily denying a claim that
trial counsel was ineffective in failing to pursue a suppression
issue.

Ex. I.

On July 24, 2012, the First District Court of

Appeal (1st DCA) dismissed the appeal as untimely from the order
finally

deciding

Petitioner's

claims

for

collateral

relief,

explaining that "[b]ecause no notice of appeal was filed within
thirty

days

of

the

order

disposing

of

the

appellant's

postconviction claims, and no issue has been raised regarding the
resentencing, we are without jurisdiction to hear this appeal."
Ex. M at 4. Although Petitioner moved for rehearing, rehearing was
denied and the mandate issued on September 21, 2012.
Ex. P.

4

Ex. N; Ex. O;

On November 7, 2012, Petitioner sought a belated appeal, Ex.
Q, but the 1st DCA denied it on January 29, 2013.

Ex. S.

On May

13, 2013, Petitioner filed a petition for writ of mandamus in the
Supreme

Court

of

Florida,

Ex.

T,

and

it

was

denied

without

prejudice to petitioner seeking a belated discretionary review.
Ex. U.

On May 11, 2014, Petitioner filed a petition for belated

discretionary review.
October

1,

2014,

Ex. V.

construed

The Supreme Court of Florida, on
it

to

be

a

notice

discretionary jurisdiction and created a new case.
were filed.

Ex. X; Ex. Y.

to

invoke

Ex. W.

Briefs

On February 12, 2015, the Supreme Court

of Florida declined to accept jurisdiction and denied the petition
for review.

Ex. Z.

On March 24, 2015, Petitioner filed a second Rule 3.850
motion, Ex. AA, and it was denied in an order filed on April 9,
2015.

Id.

Petitioner appealed, id., and the 1st DCA per curiam

affirmed on August 25, 2015.
September 22, 2015.

Ex. BB.

The mandate issued on

Id.

Upon review, Petitioner's judgment and sentence became final
on Friday, November 18, 2011, when the thirty-day time period to
appeal expired.3

Green v. Tucker, No. 3:10cv418/MCR/MD, 2011 WL

3

Petitioner's argument in his Reply that Respondents did not
properly take into consideration the law governing the finality of
a state court judgment when calculating the one-year limitation
period is well-founded. The trial court's order of resentencing,
dated October 19, 2011, Ex. H at 97-101, reset the clock for
purposes of calculating the one-year limitation period.
See
Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286, 1293 (11th Cir.
5

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).

Admittedly, Petitioner's

counsel filed a notice of appeal regarding the new sentence, but
not only did the 1st DCA dismiss the appeal as untimely, it also
found that it was without jurisdiction to hear the appeal because
no issue was raised regarding resentencing.

Ex. M.

If there is a state court determination of untimeliness, this
Court will defer to that determination. Allen v. Siebert, 552 U.S.
3, 7 (2007) (per curiam); Sykosky v. Crosby, 187 F. App'x 953, 958
(11th Cir. 2006) (per curiam), cert. denied, 549 U.S. 1141 (2007);
Rollins v. McNeil, No. 4:09cv319-RS-WCS, 2010 WL 3001440, at *2
(N.D. Fla. June 14, 2010) (not reported in F.Supp.2d), report and
recommendation adopted by 2010 WL 3001436 (N.D. Fla. July 27, 2010)
(not reported in F.Supp.2d).

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's amended sentence restarts
the clock. Unfortunately for Petitioner, his Petition is still
untimely filed.
6

The one-year limitation period began to run on November 19,
2011, and ran untolled, until it expired on Sunday, November 18,
2012, giving Petitioner until Monday, November 19, 2012 to file a
timely federal petition. Thus, the Petition filed on September 22,
2015 is untimely filed.
Although Petitioner filed a petition seeking belated appeal of
the order denying post conviction relief prior to the expiration of
the limitation period, Ex. Q, 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 1st DCA denied the petition for belated

appeal, Ex. S.

Thus, the state court did not reopen review.

Although on May 13, 2013, Petitioner for writ of mandamus, it
was filed after the one-year period expired, and it was denied.
Ex.

T;

Ex.

conviction

U.
or

It

never

sentence[.]"

triggered

"a

Espinosa,

reexamination
804

F.3d

at

of

his

1142.

Additionally, even though Petitioner filed a petition for belated
discretionary review on May 11, 2014, the Supreme Court declined to

7

accept jurisdiction and denied the petition for review. Ex. V; Ex.
W; Ex. X; Ex. Y; Ex. Z.

Therefore, 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 No.
1614451, 2017 WL 962486 (S.D. Fla. Feb. 22, 2017).
Alternatively, these particular filings did not operate to
toll the limitation period as they were filed following the
expiration of the limitation 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

4

tolling

is

warranted.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,
8

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.

If Petitioner appeals the dismissal of the Petition, the

Court denies a certificate of appealability.6

Because this Court

and Petitioner has not met this burden.
5

In his grounds for habeas relief, Petitioner contends he
received the ineffective assistance of counsel for failure to
secure a ruling on a motion to suppress a suggestive photo line-up
and for failure to request a lesser included offense to robbery,
robbery by sudden snatch. Petition at 4-6. He does not, however,
claim actual innocence, see Petition & Reply, and has failed to
demonstrate that he has new evidence establishing actual innocence.
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.
9

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 30th day of
October, 2017.

sa 10/25
c:
Lawrence DeWayne Slocum
Counsel of Record

10