Aldana v. Secretary, Department of Corrections et al

Filing 31

ORDER dismissing with prejudice 6 Amended Petition and dismissing case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 10/14/2020. (ACT)

Case 3:17-cv-01110-MMH-PDB Document 31 Filed 10/14/20 Page 1 of 9 PageID 2125

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

NOEL ALDANA,
Petitioner,
v.

Case No. 3:17-cv-1110-J-34PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Noel Aldana, an inmate of the Florida penal system, initiated this action
on September 27, 2017,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254 (Petition; Doc. 1). Aldana is proceeding on an amended petition (Amended
Petition; Doc. 6). In the Amended Petition, Aldana challenges a 2010 state court (Nassau
County, Florida) judgment of conviction for grand larceny by unauthorized credit card use
and schemes to defraud. Aldana raises five grounds for relief. See Amended Petition at
5-27.2 Respondents have submitted an answer in opposition to the Amended Petition.
See Motion to Dismiss (Response; Doc. 29) with exhibits (Resp. Ex.). Aldana moved to
enlarge the record, see Doc. 23, the Court granted his request, see Doc. 29, and
Respondents supplemented their exhibits with the relevant records. See Doc. 27. Aldana
filed three briefs in reply; Docs. 24, 28, 30; however, the Court construes the last reply as

1

See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
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his operative reply. See Petitioner’s Amended Reply to Respondent’s Response for
Motion to Dismiss or Deny (Reply; Doc. 30). This case is ripe for review.
II. One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28
U.S.C. § 2244 by adding the following subsection:
(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.
28 U.S.C. § 2244(d). In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the United States
Supreme Court held that a claim of actual innocence, if proven, provides an equitable

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exception to the one-year statute of limitations. The United States Supreme Court
explained:
We hold that actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment
is a procedural bar, as it was in Schlup[3] and House,[4] or, as
in this case, expiration of the statute of limitations. We
caution, however, that tenable actual-innocence gateway
pleas are rare: "[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light
of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt." Schlup,
513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S. at 538,
126 S.Ct. 2064 (emphasizing that the Schlup standard is
"demanding" and seldom met). And in making an assessment
of the kind Schlup envisioned, "the timing of the [petition]" is a
factor bearing on the "reliability of th[e] evidence" purporting
to show actual innocence. Schlup, 513 U.S., at 332, 115 S.Ct.
851.
Id. at 386-87. “For purposes of the ‘actual innocence’ exception to a procedural bar, the
petitioner must show ‘factual innocence, not mere legal insufficiency.’” Justo v. Culliver,
317 F. App'x 878, 880-81 (11th Cir. 2008) (quoting Bousley v. United States, 523 U.S.
614 (1998)).
Respondents contend that this action is untimely. Response at 4-7. In his Reply,
Aldana argues that the Amended Petition is timely because Respondents used incorrect
dates to determine the dates he filed postconviction motions. Reply at 5-6. Additionally,
Aldana contends that even if untimely, he is actually innocent of the charge of scheming
to defraud, but, nevertheless, admits that he is guilty of grand larceny. Id. at 1-5. The
following procedural history is relevant to the one-year limitations issue.

3
4

Schlup v. Delo, 513 U.S. 298 (1995).
House v. Bell, 547 U.S. 518 (2006).
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Aldana entered a negotiated plea of guilty to grand larceny by unauthorized credit
card use (count one) and schemes to defraud (count two). Resp. Ex. B. On August 19,
2010, the circuit court sentenced Aldana to a term of incarceration of fifteen years in
prison as to count two and a term of probation of five years as to count one, which the
circuit court ordered to run consecutively to the sentence imposed on count two. Resp.
Ex. C at 30-31. Aldana did not appeal.
As Aldana’s conviction and sentence became final after the effective date of
AEDPA, his Amended Petition is subject to the one-year limitations period. See 28 U.S.C.
§ 2244(d)(1). Here, Aldana’s judgment became final on September 18, 2010. See
McCloud v. Hooks, 560 F.3d 1223, 1227 (11th Cir. 2009) (quoting Pugh v. Smith, 465
F.3d 1295, 1298 (11th Cir. 2006)) (“A conviction is final at ‘the conclusion of direct review
or the expiration of the time for seeking such review.’”); Fla. R. App. P. 9.140(b)(3)
(mandating thirty-day window from date of written order imposing sentence to file direct
appeal of criminal conviction). As such, Aldana had until September 18, 2011, to file a
federal habeas petition. Aldana did not file the Petition until September 27, 2017. Thus,
this action is due to be dismissed as untimely unless he can avail himself of the statutory
provisions which extend or toll the limitations period.
On February 9, 2011,5 144 days into Aldana’s one-year statute of limitations
period, he filed a pro se motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850 (Rule 3.850 Motion), Resp. Ex. A at 1-19, which tolled the
limitations period. See 28 U.S.C. § 2244(d)(2). The circuit court denied the Rule 3.850

Respondents incorrectly rely throughout their Response on the clerk’s file-stamp
to determine the relevant date of Aldana’s pro se filings; however, as a pro se litigant, the
mailbox rule applies.
5

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Motion on August 17, 2012. Id. at 102. Aldana appealed and Florida’s First District Court
of Appeal (First DCA) per curiam affirmed the denial of the Rule 3.850 Motion on June
24, 2013. Resp. Ex. H. Aldana moved for rehearing, which was denied. Resp. Ex. I. On
September 17, 2013, the First DCA issued the Mandate, at which point the statute of
limitations began to run again. See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000)
(noting pursuant to Florida law, a circuit court’s denial of a postconviction motion is
pending until the mandate is issued).
On September 30, 2013, after the statute of limitations had run for 157 days,
Aldana filed a pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal
Procedure 3.800(a) (Rule 3.800(a) Motion), Resp. Ex. K 1-11, and a second motion
pursuant to Rule 3.850 (Second Rule 3.850 Motion). Id. at 22-29. The circuit court denied
both motions on November 6, 2013. Id. at 49, 53. The First DCA per curiam affirmed the
denial of relief on both motions on April 15, 2014. Resp. Ex. N. Following the denial of
Aldana’s motion for rehearing, Resp. Ex. O, the First DCA issued the Mandate on August
8, 2014, Resp. Ex. P, restarting the statute of limitations. See Nyland, 216 F.3d at 1267.
The statute of limitations ran for a total of 209 days until September 29, 2014, when
Aldana filed a petition for writ of habeas corpus with the circuit court. Resp. Ex. U at 1-32.
The circuit court denied the petition on October 21, 2014, Id. at 33, and denied Aldana’s
motion for rehearing on November 12, 2014. On May 27, 2015, the First DCA per curiam
affirmed the denial of the petition. Resp. Ex. Y. Aldana moved for rehearing, which the
First DCA denied. Resp. Ex. Z. The First DCA issued the Mandate on July 27, 2015,
Resp. Ex. AA, and the limitations period began to run again. See Nyland, 216 F.3d at
1267.

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On February 24, 2016, Aldana, with the assistance of counsel filed another motion
pursuant to Rule 3.800(a) (Second Rule 3.800(a) Motion). Resp. Ex. BB at 1-12. By the
time Aldana filed his Second Rule 3.800(a) Motion, 421 un-tolled days had passed since
his judgment became final; therefore, the Second Rule 3.800(a) Motion did not toll the
statute of limitations. Aldana’s judgment became final on December 30, 2015.6
Accordingly, even though Respondents incorrectly identified the dates of some of
Aldana’s pro se state court filings, based on the timeline above, this action, initiated on
September 27, 2017, is untimely.
Aldana alternatively argues that a manifest injustice would occur if the Court did
not address the merits of the Amended Petition because he is actually innocent of count
two. According to Aldana, there was no competent, substantive evidence to support the
charge in count two and to demonstrate this point, he relies on the fact that the State of
Florida provided no evidence at the plea or sentencing hearings to prove he was involved
in the scheme to defraud. Reply at 2. The Court finds Aldana has failed to meet his burden
to establish that he is actually innocent because he has not alleged any new facts that
would support an actual innocence claim. It appears Aldana believes that the State did
not have evidence to prove count two at the time of the plea. See generally Reply; see
also Doc. 24 at 5-6. In support of this, Aldana cites to evidence the State disclosed in
2012 that included the dates of credit card charges that did not correspond to the dates
alleged in the charging document. Doc. 24 at 5-6. Aldana maintains that the evidence

6

The Court notes that the documents Aldana sought to include in the record and
which Respondents provided include the record of a pro se petition for writ of habeas
corpus filed on August 25, 2016. Resp. Ex. Resp. Ex. OO. However, as the petition was
filed after the statute of limitations had expired, this petition did not toll the limitations
period.
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shows charges were made between August 27, 2008 and February 14, 2009, which were
not the dates alleged in the Information. Id. at 5-6. Aldana does not deny making illegal
purchases with the stolen credit card, he just denies doing it within the time period
purportedly alleged in the Information. Even assuming Aldana’s allegations are correct, it
would only show a defect in the charging document, not his actual innocence. Aldana has
made no assertion that the State could not have amended the Information if this factual
inaccuracy actually existed. Therefore, his argument fails to establish a valid actual
innocence claim. See Justo, 317 F. App'x at 880-81.
Moreover, the Court notes that Aldana, under oath, stated at both the plea and
sentencing hearings that he committed the charged offenses and was remorseful, Resp.
Exs. B at 9; C at 10, 29-30, which contradicts his current contentions. A defendant’s
“[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977). As such, Aldana’s current allegations that are
contradictory to his “solemn declarations” in open court are insufficient to establish an
actual innocence claim. Id. Based on the above analysis, Aldana has not established an
actual innocence claim and, therefore, the Amended Petition is due to be dismissed as
untimely.
III. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Aldana seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. The 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, Aldana

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“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)).
Where a district court has rejected a petitioner’s constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 6) is DISMISSED WITH PREJUDICE, and this

action is DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment dismissing the Amended

Petition and dismissing this case with prejudice.
3.

If Aldana appeals the dismissal of the Amended Petition, the Court denies

a certificate of appealability. Because the Court has determined that a certificate of
appealability is not warranted, the Clerk shall terminate from the pending motions report

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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 of the Court is directed to close this case and terminate any

pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of October, 2020.

Jax-8
C:

Noel Aldana #J42034
Counsel of record

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