Bell v. Secretary, Department of Corrections et al
ORDER denying as moot 40 Motion to Rule; 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 11/6/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
WILLIAM H. BELL, JR.,1
Case No. 3:15-cv-1500-J-39MCR
SECRETARY, DOC, et al.,
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 December 16, 2015, pursuant to the
challenges his 2011 Duval County conviction for two counts of
aggravated assault, one count of aggravated stalking, and one count
of possession of a firearm by a convicted felon.
The Clerk shall
The Petition was filed with the Clerk on December 18, 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 (December 16, 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).
Respondents, in their Motion to Dismiss (Response) (Doc. 23),
contend that Petitioner has failed to comply with the one-year
They provide exhibits in support of their
Petitioner was given admonitions and a
time frame to respond to the request to dismiss the Petition
contained within the Response.
Court's Order (Doc. 7).
Petitioner filed a reply (Reply) (Doc. 24).
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.
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
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.
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) 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).
Respondents provide a detailed procedural history in the
Response at 1-3.
Ex. A at 61-64.
The Court will provide a brief
A jury found Petitioner guilty as charged.
On January 11, 2014, judgment and sentence were
Id. at 83-91.
Ex. D; Ex. E; Ex. F.
The First District Court of Appeal (1st DCA) affirmed per curiam on
September 14, 2011. Ex. G. Petitioner moved for rehearing, Ex. H,
and the 1st DCA denied rehearing on October 31, 2011.
mandate issued on November 16, 2011. Ex. J. The conviction became
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
The limitation period began to run on January 30, 2012, and
ran for 214 days, until Petitioner filed a Rule 3.800(a) motion in
the circuit court on August 31, 2012, pursuant to the mailbox rule.
Ex. K at 1-22.
The circuit court denied the motion in an order
filed March 21, 2014.
Id. at 23-37.
Petitioner appealed, id. at
On July 8, 2014, the 1st DCA affirmed per curiam.
The mandate issued on August 29, 2014.
As such, the one-year
limitation period remain tolled until the mandate issued.
limitation period began to run on August 30, 2014, and the one-year
period expired 151 days later, on Wednesday, January 28, 2015.
Therefore, the Petition, filed pursuant to the mailbox rule on
December 16, 2015, is untimely filed.
Although Petitioner filed a Rule 3.850 motion on November 14,
2014, Ex. Q at 1-66, the circuit court dismissed the Rule 3.850
motion with prejudice as untimely filed. Id. at 67-80. Thus, this
motion for post conviction relief did not toll the running of the
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).
Even though Petitioner filed a petition for belated appeal on
April 14, 2014 pursuant to the mailbox rule, Ex. W, a petition for
belated appeal "does not qualify as an application for collateral
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
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 construed the
petition to be an application seeking leave to file a belated post
conviction motion, and transferred it to the circuit court. Ex. X.
The circuit court dismissed the petition as moot because the Court
already addressed the motion, finding it untimely filed.
In his Reply, he asserts that he was unable
to file a timely Rule 3.850 motion because his attorney, Richard
Petitioner states he tried to toll the time for filing a Rule 3.850
motion by filing a Rule 3.800(a) motion.
He blames his
documents, claiming that this action hindered Petitioner's ability
to prepare his Rule 3.850 motion.
Thus, Petitioner urges this Court to find that his untimely
circumstances beyond his control.
Petitioner contends that he is
entitled to some equitable tolling due to the fact that his
appellate counsel failed to furnish him with documents.
the AEDPA limitations period is subject to equitable tolling.
Holland v. Florida, 560 U.S. 631, 645 (2010).
pronged test for equitable tolling.
There is a two-
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
circumstances that are both beyond his control and unavoidable with
diligence, and this high hurdle is not easily surmounted.
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)
Petitioner has not met the burden of showing that equitable tolling
Petitioner contends that counsel's failure to provide him with
copies of documents prevented him from preparing, researching, and
drafting his Rule 3.850 motion.
Reply at 1-2.
The Court finds
Petitioner's argument unavailing. Petitioner's inability to obtain
free copies of all of the documents he desired from his criminal
case is not an extraordinary circumstance.
Indeed, it is a common
See Williams v. Sec'y, Dep't of Corr., No. 8:07-cv-
458-T-30EAJ, 2009 WL 1046131, at *2 (M.D. Fla. Apr. 20, 2009) (not
reported in F.Supp.2d) (finding a public records request and
litigation concerning that request is not a collateral attack and
does not toll); Ramirez v. Sec'y, DOC, No. 3:13-cv-979-J-39JRK,
2015 WL 6704312, at *3 (M.D. Fla. Nov. 3, 2015) (not reported in
F.Supp. 3d) (noting that petitioner sought an order from the trial
court directing counsel to provide petitioner with free copies of
records and files, but it did not toll the limitation period).
Petitioner's own documents reflect that appellate counsel did
not have copies of any depositions. Letter from Richard A. Sichta,
Esquire, Dated January 3, 2013 (Doc. 24-1 at 10-11).
apprised Petitioner that no deposition transcripts were included in
the appellate record, as clearly reflected in the table of contents
of the record on appeal.
Id. at 11.
With regard to Plaintiff's request for transcripts, the record
demonstrates that Mr. Sichta received Petitioner's August 28, 2012
letter requesting transcripts, the mandate, and any dispositions of
Letter from Mr. Sichta, Dated September 5, 2012 (Doc.
24-1 at 16).
Mr. Sichta provided Petitioner with a copy of the
disposition from the 1st DCA and the mandate, although Petitioner
had already provided Mr. Sichta with a copy of the mandate.
Petitioner should have one of his family members schedule a visit
to retrieve the records.
Apparently, Petitioner's family
members had difficulty getting to the office to retrieve the
record, and once the records were retrieved, they had difficulty
getting the records to Petitioner due to failure to comply with
The record shows that Petitioner and/or his
Petitioner to receive the voluminous records at the prison, he had
to obtain prior clearance from the warden, per institutional rules.
(Doc. 1-1 at 43-46).
Nevertheless, Petitioner could have timely filed a Rule 3.850
motion without the transcripts and/or documents he now asserts the
absence of which hindered his ability to timely file the motion.
He could have sought leave to amend the post conviction motion upon
circumstances stood in his way and prevented him from timely filing
his Petition. Although additional records may have eased his task,
Petitioner certainly had sufficient documentation and information
to adequately pursue his state court remedies and file a timely
federal petition, seeking leave to amend or to supplement the
petition with additional records if he acquired them at a later
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.
Petitioner does not allege, and the record does not show, that
the state impeded him from filing a timely § 2254 petition during
the untolled periods.
Petitioner simply failed to pursue his
proceeding to federal court.
Although Petitioner was proceeding
pro se in his state court proceedings, his status as a pro se filer
Johnson v. United States, 544 U.S. 295, 311
Under these circumstances, the Court is not persuaded that
Petitioner acted diligently. He let 214 days run before filing his
first tolling qualified motion/petition, a Rule 3.800(a) motion.
After that tolling period expired, he let 76 days run before filing
an untimely state Rule 3.850.
Petitioner waited an inordinately
long period of time after his criminal conviction became final on
January 29, 2012 to file his federal Petition on December 16,
The Court finds that he has not shown that he is entitled
to extraordinary relief. Equitable tolling is a remedy that should
be used sparingly, and Petitioner has failed to show that he
exercised due diligence in pursuing his state court remedies.
circumstance, and he has not met the burden of showing that
equitable tolling is warranted.
Therefore, based on the record before the Court, the Court
finds that Petitioner has not presented any justifiable reason why
the dictates of the one-year limitation period should not be
imposed upon him.
He had ample time to exhaust state remedies and
prepare and file a federal petition.
In this case, Petitioner
fails to demonstrate he is entitled to equitable tolling or that he
has new evidence establishing actual innocence.
Court will dismiss the case with prejudice pursuant to 28 U.S.C. §
Accordingly, it is now
Petitioner's Motion to Rule (Doc. 40) is DENIED AS MOOT.
The Petition and the case are DISMISSED WITH PREJUDICE.
The Court recognizes that there was an AEDPA-tolled period
from August 31, 2012 through August 29, 2014.
The Clerk shall enter judgment dismissing the Petition
with prejudice and dismissing the case with prejudice.
The Clerk shall close the case.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.5
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
DONE AND ORDERED at Jacksonville, Florida, this 6th day of
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
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
Upon due consideration, this Court will deny a
certificate of appealability.
William H. Bell, Jr.
Counsel of Record
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?