Sizemore v. Jones et al

Filing 14

ORDER dismissing 1 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 10/25/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM SIZEMORE,
Petitioner,
vs.

Case No. 3:16-cv-144-J-39MCR

SECRETARY, DOC, et al.,
Respondents.
ORDER
Petitioner initiated this action by filing a pro se Petition
(Doc. 1) pursuant to 28 U.S.C. § 2254 on February 8, 2016, pursuant
to the mailbox rule.1

In the Petition, he challenges a 2009 state

court (Duval County) judgment of conviction for armed burglary and
possession of a firearm by a convicted felon.
Respondents filed a Motion to Dismiss Petition for Writ of
Habeas Corpus (Response) (Doc. 12).2

They contend that Petitioner

failed to comply with the one-year limitation period set forth in

1

The Petition was filed with the Clerk on February 17, 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 (February 8, 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. 12) submitted in support of the Response as
"Ex."

28 U.S.C. § 2244(d).

Petitioner filed a Reply (Reply) (Doc. 13).

See Order (Doc. 4).
Of import, 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
not be counted toward any period of limitation
under this subsection.
2

28 U.S.C. § 2244(d).
In their Response, Respondents provide a procedural history.
Response at 1-4.
history.

The Court will provide an abbreviated procedural

On April 29, 2009, Petitioner was charged by information

with armed burglary and possession of a firearm by a convicted
felon.

Ex. A.

both counts.

On September 9, 2009, Petitioner pled guilty to
Ex. B.

He entered into a negotiated sentence of

fifteen years on each count as an habitual felony offender, with
concurrent minimum mandatory terms of ten years and three years,
respectively.

Ex. B; Ex. C.

As part of the negotiated plea

agreement, the state agreed to abandon prosecution and not file
charges in incident 2009-244344.

Ex. B at 1.

Petitioner signed

the plea form, acknowledging that he read and understood the entire
plea agreement, including the rights he was giving up by entering
into it.

Id. at 2.

The form is also signed by Petitioner's

attorney, a witness, the Assistant State Attorney, and the circuit
judge.

Id.

The

Court

entered

judgment

on

September

Petitioner was sentenced as outlined above.
appeal was not taken.

Ex. D.

9,

Ex. C.

2009,

and

A direct

Thus, his judgment became final

thirty days later on Friday, October 9, 2009.

See Fla. R. App. P.

9.140(b)(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

3

conviction becomes final when the thirty-day period for filing a
direct appeal expires).

Petitioner's one-year limitation period

began to run on October 10, 2009, and ran until it expired on
Sunday, October 10, 2010. Monday, October 11, 2010, was a holiday;
therefore, Petitioner had until Tuesday, October 12, 2010, to
timely file a federal petition.

The federal Petition, filed on

February 8, 2016, is untimely filed, beyond the one-year period of
limitation.
Although

Petitioner

filed

a

Rule

3.850

motion

for

post

conviction relief on December 13, 2010, Ex. E, 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).

4

Petitioner claims actual innocence as to the possession of a
firearm by a convicted felon count.
at 6–7.3
the

Reply at 2, 4.

See Petition

As such, he contends that this Court's failure to address

merits

of

the

Petition

miscarriage of justice.

would

result

in

a

fundamental

Reply at 4.

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.
S.Ct. 1924, 1931-32 (2013).

See McQuiggin v. Perkins, 133

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.
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

3

Petitioner argues that his counsel was ineffective for not
moving to dismiss the possession charge because the firearm was an
antique. Petition at 6.
5

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 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 Petition (Doc. 1) and the case are DISMISSED with

prejudice.
2.

The Clerk shall enter judgment dismissing the Petition

with prejudice and dismissing this case with prejudice.

6

3.

If Petitioner appeals the dismissal of the Petition, the

Court denies a certificate of appealability.4
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.
4.

The Clerk shall close this case.

DONE AND ORDERED at Jacksonville, Florida this 25th day of
October, 2017.

sa 10/24
c:
William Sizemore
Counsel of Record

4

If Petitioner appeals the dismissal of the 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