Bell v. Secretary, Department of Corrections et al

Filing 41

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
JACKSONVILLE DIVISION
WILLIAM H. BELL, JR.,1
Petitioner,
vs.

Case No. 3:15-cv-1500-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 December 16, 2015, pursuant to the
mailbox

rule.2

He

also

filed

an

Attachment

(Doc.

4).

He

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.

1

The Clerk shall
Petitioner's name.
2

correct

the

docket,

adding

"Jr."

to

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
limitation period.
contention.

They provide exhibits in support of their

(Doc. 23).3

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. 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.
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;
(C)
the
date
on
which
the
constitutional right asserted was

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.
2

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 provide a detailed procedural history in the
Response.

Response at 1-3.

procedural history.
Ex. A at 61-64.
entered.

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.

Petitioner appealed.

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.

Ex. I.

The

mandate issued on November 16, 2011. Ex. J. The conviction became
final

on

January

("According

to

29,

rules

2012
of

(90

the

days

Supreme

after

October

Court,

a

31,

2011)

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

3

timely filed, within 90 days of the appellate court's denial of
that motion.").
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.
38-41.

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.

Id.

Ex. P.

As such, the one-year

limitation period remain tolled until the mandate issued.

The

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
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).
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

4

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 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.
Petitioner

apparently

equitable tolling.

contends

that

he

is

Ex. AA.

entitled

to

In his Reply, he asserts that he was unable

to file a timely Rule 3.850 motion because his attorney, Richard
Sichta,

withheld

depositions

and

transcripts.

Reply

at

1.

Petitioner states he tried to toll the time for filing a Rule 3.850
motion by filing a Rule 3.800(a) motion.
appellate

counsel,

Mr.

Sichta,

for

Id.

He blames his

withholding

beneficial

documents, claiming that this action hindered Petitioner's ability
to prepare his Rule 3.850 motion.

Id.

Thus, Petitioner urges this Court to find that his untimely
filing

of

his

federal

Petition

circumstances beyond his control.

5

should

be

contributed

to

Petitioner contends that he is

entitled to some equitable tolling due to the fact that his
appellate counsel failed to furnish him with documents.

Of note,

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
of

extraordinary

circumstances

and

due

diligence")

(citation

omitted).
Petitioner

bears

the

burden

to

show

extraordinary

circumstances that are both beyond his control and unavoidable with
diligence, and this high hurdle is not easily surmounted.

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).

The

Court

concludes

that

Petitioner has not met the burden of showing that equitable tolling
is warranted.

6

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.
occurrence.

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).

Mr. Sichta

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

7

his case.

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.

Id.

Mr.

and

Sichta

responded

that

the

records

were

voluminous,

Petitioner should have one of his family members schedule a visit
to retrieve the records.

Id.

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
institutional rules.
family

members

were

The record shows that Petitioner and/or his
repeatedly

informed

that

in

order

for

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
acquiring

the

documents.

Upon

review,

no

extraordinary

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

8

federal petition, seeking leave to amend or to supplement the
petition with additional records if he acquired them at a later
date.

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.
rights

diligently

by

Petitioner simply failed to pursue his
filing

proceeding to federal court.

timely

state

court

motions

and

Although Petitioner was proceeding

pro se in his state court proceedings, his status as a pro se filer
is

not

a

meritorious

equitable tolling.

excuse

and

is

insufficient

to

warrant

Johnson v. United States, 544 U.S. 295, 311

(2005).
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

9

January 29, 2012 to file his federal Petition on December 16,
2015.4

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.
Furthermore,

Petitioner

has

failed

to

show

an

extraordinary

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.

Therefore, the

Court will dismiss the case with prejudice pursuant to 28 U.S.C. §
2244(d).
Accordingly, it is now
ORDERED:
1.

Petitioner's Motion to Rule (Doc. 40) is DENIED AS MOOT.

2.

The Petition and the case are DISMISSED WITH PREJUDICE.

4

The Court recognizes that there was an AEDPA-tolled period
from August 31, 2012 through August 29, 2014.
10

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.5
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 6th day of
November, 2017.

5

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.
11

sa 10/27
c:
William H. Bell, Jr.
Counsel of Record

12