Jimerson v. Jones et al
Filing
27
ORDER dismissing 4 the amended 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 10/25/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TYRONE JIMERSON,
Petitioner,
vs.
Case No. 3:16-cv-14-J-39JBT
SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner
initiated
this
action
by
filing
a
pro
se
handwritten Petition (Doc. 1) pursuant to 28 U.S.C. § 2254 on
January 4, 2016, pursuant to the mailbox rule.1
He is proceeding
on an Amended Petition (Doc. 4), filed on February 4, 2016,
pursuant to the mailbox rule.
He challenges a 2000 state court
(Duval County) judgment of conviction for second degree murder.
Respondents, in their Motion to Dismiss Petition for Writ of Habeas
Corpus (Response) (Doc. 25),2 contend that Petitioner failed to
comply with the one-year limitation period set forth in 28 U.S.C.
1
The Petition was filed with the Clerk on January 6, 2016;
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 (January 4, 2016). 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).
2
The Court hereinafter refers to the exhibits contained in
the Appendix (Doc. 25) submitted in support of the Response as
"Ex."
§ 2244(d).
Petitioner filed a Reply to Respondents' Motion to
Dismiss Petition for Habeas Corpus (Reply) (Doc. 26).
See Order
(Doc. 16).
The Antiterrorism and Effective Death Penalty Act (AEDPA)
provides:
(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
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
2
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
Respondents provide a detailed procedural history of the state
criminal case.
Response at 1-5.
procedural history.
The Court will provide a brief
On July 13, 1998, Petitioner was charged by
information with one count of second degree murder.
Ex. A.
Thereafter, on July 16, 1998, he was charged by indictment with
murder in the first degree (count one) and aggravated child abuse
(count two).
Ex. B.
On April 6, 2000, Petitioner pled guilty to
the lesser included offense in count one of second degree murder.
Ex. D. He entered into a negotiated sentence of thirty-five years.
Id. at 1.
As part of the negotiated plea agreement, the state
agreed to abandon prosecution of count two, the aggravated child
abuse count.
Id.
Petitioner signed the plea form, stating: "I
understood this plea of guilty form when my attorney read and
explained it to me, and it is true and correct.
form is signed by Petitioner's attorney.
Id.
Id. at 3.
The
Also of note, the
form is signed by a witness, the Assistant State Attorney, and the
circuit judge.
Id. at 4.
The Court entered judgment on April 6, 2000, and Petitioner
was sentenced to thirty-five years on count one, murder in the
second degree, a lesser included offense.
was not taken.
Ex. F.
Ex. E.
A direct appeal
Thus, his judgment became final thirty days
later on Saturday, May 6, 2000.
See Fla. R. App. P. 9.140(b)(3);
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).
Petitioner's one-year limitation period began to run on
Monday, May 8, 2000, and ran until it expired on Tuesday, May 8,
2001.
Although
Petitioner
filed
a
Rule
3.850
motion
for
post
conviction relief on August 20, 2012, Ex. G, this motion did not
toll the federal one-year limitation period because it had already
expired.
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
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."), cert.
denied, 531 U.S. 991 (2000).
Petitioner filed other state post conviction motions and
petitions after the expiration of the one-year limitation period,
4
but they too do not toll the one-year limitation period as it had
already expired.
Thus, this action was not timely filed.
Petitioner, in his Amended Petition at 10, and in his Reply at
3, argues that this Court's failure to address the merits of the
Amended Petition would result in a fundamental miscarriage of
justice.3
To
invoke
the
fundamental
miscarriage
of
justice
exception to AEDPA's statute of limitations, a habeas petitioner
must make a credible showing of actual innocence with new evidence
that was not available at the time of his trial.
Perkins, 133 S.Ct. 1924, 1931-32 (2013).
See McQuiggin v.
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
it
be
exculpatory
scientific
evidence,
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.
3
Petitioner asserts that count two only exists on the plea
form. Reply at 3. This contention has no merit. The indictment
charged Petitioner with murder in the first degree (count one), and
aggravated child abuse (count two).
Ex. B.
Pursuant to a
negotiated plea agreement, Petitioner agreed to plead guilty to
second degree murder, a lesser included offense of count one, and,
in exchange, the state agreed to abandon the prosecution of count
two. Ex. D. Additionally, as part of the agreement, Petitioner
received a negotiated sentence of thirty-five years, with no
minimum mandatory term. Id.
5
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.
A
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
(quotation omitted).
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.
Schlup
Pursuant to
and its progeny, Petitioner is required to offer new
reliable evidence that was not available at the time of his trial.
Petitioner
has
not
presented
any
new
exculpatory
scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence.
In conclusion, Petitioner does not assert or demonstrate that
he
has
new
evidence
establishing
actual
innocence.
Because
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:
1.
The Amended Petition (Doc. 4) and the case are DISMISSED
with prejudice.
6
2.
The Clerk shall enter judgment dismissing the Amended
Petition with prejudice and dismissing this case with prejudice.
3.
Petition,
Because
If
Petitioner
the
this
appeals
Court
denies
Court
has
a
the
dismissal
certificate
determined
that
of
a
of
the
Amended
appealability.4
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.
4.
The Clerk shall close this case.
DONE AND ORDERED at Jacksonville, Florida this 25th day of
October, 2017.
4
If Petitioner appeals the dismissal of the Amended 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.
7
sa 10/24
c:
Tyrone Jimerson
Counsel of Record
8
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