SMALL v. JONES

Filing 17

ORDER dismissing the Petition 1 and the case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 11/3/2020. (JND)

Case 3:17-cv-01419-TJC-JRK Document 17 Filed 11/03/20 Page 1 of 6 PageID 119

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL D. SMALL,
Petitioner,
v.

Case No. 3:17-cv-1419-J-32JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I.

Status
Petitioner, Michael D. Small, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody. Doc. 1. Petitioner challenges a
state court (Duval County, Florida) judgment of conviction for which he is
serving a life term of incarceration. Id. at 1. Respondents argue that the Petition
is untimely filed and request dismissal of this case with prejudice. See Doc. 15
(Resp.).1 The Court provided Petitioner with an opportunity to file a reply (Doc.
16), but he did not do so. This case is ripe for review.

Attached to the Response are several exhibits. The Court cites to the
exhibits as “Resp. Ex.”
1

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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.
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(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).
III.

Analysis
On December 13, 2007, Petitioner entered a negotiated plea of guilty to

second degree murder. Resp. Ex. E. That same day the trial court sentenced
Petitioner in accordance with his negotiated disposition to a life term of
incarceration.2 Resp. Ex. F. Thereafter, on April 15, 2008, the trial court sua
sponte re-recorded Petitioner’s judgment and sentence to reflect that his second
degree murder conviction was a lesser included offense. Resp. Ex. G. Petitioner
did not seek a direct appeal following his December 13, 2007, sentencing or after
the trial court re-recorded his judgment and sentence on April 15, 2008.
For purposes of this Order, the Court assumes Petitioner could have
sought a direct appeal following the re-recording of his judgment and sentence;
and thus, his judgment and sentence became final upon expiration of the time

Petitioner agreed to a life sentence in exchange for the state dropping
the criminal charges pending in No. 2007-CF-9597 and an agreement that the
state would not pursue additional charges for events that occurred in March
2006. Resp. Ex. E.
2

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to file a notice of appeal: Thursday, May 15, 2008. Therefore, his federal oneyear statute of limitations began to run the next day, May 16, 2008, and expired
one year later on May 19, 2009,3 without Petitioner filing a motion for
postconviction relief that would toll the one-year period.
On September 26, 2017, Petitioner filed his first and only state court
motion for postconviction relief under Florida Rule of Criminal Procedure
3.800(a). Resp. Ex. H. Because there was no time left to toll, however,
Petitioner’s Rule 3.800(a) motion did not toll the federal one-year limitations
period. See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating
where a state prisoner files postconviction motions in state court after the
AEDPA limitations period has expired, those filings cannot toll the limitations
period because “once a deadline has expired, there is nothing left to toll”);
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (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 [the 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.”). Therefore, the Court finds
the Petition, filed on November 13, 2017, is untimely filed by more than 8 years.

The last day fell on a Saturday, so the period continued to run until the
following Monday. See Fed. R. Civ. P. 6(1)(C).
3

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Petitioner does not argue that he is entitled equitable tolling, and he fails to
allege any factual allegations supporting due diligence or extraordinary
circumstances. See Lawrence v. Florida, 549 U.S. 327, 336 (2007); see Cadet v.
Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017). Further, Petitioner
does not assert actual innocence as a gateway to avoid enforcement of the oneyear limitations period. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
As such, this action is due to be dismissed.
Accordingly, it is
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) and this case are DISMISSED with

prejudice.
2.

The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.
3.

If Petitioner appeals this Order, 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

5

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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
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of
November, 2020.

Jax-7
C:

Michael D. Small, #129825
Anne Catherine Conley, Esq.

The Court should issue a certificate of appealability only if 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 consideration of the record as a whole,
the Court will deny a certificate of appealability.
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