Austin v. State of Florida et al
Filing
21
ORDER dismissing with prejudice 1 the petition and the case, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 5/19/2020. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CARY AUSTIN, JR.,
Petitioner,
vs.
Case No. 3:18-cv-685-J-39MCR
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
On May 21, 2018, pursuant to the mailbox rule, Petitioner,
Cary Austin, Jr., initiated this case by filing a Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State
Custody (Petition) (Doc. 1 at 16).
He challenges his state court
(Duval County) conviction for murder in the first degree and [armed
robbery]. 1
Id. at 1.
Petitioner raises one ground: (1) the
ineffective assistance of trial counsel for failure “to suppress
evidence; to wit: illegally obtained statement.”
Id. at 5.
Although Petitioner references “car jacking [sic] with deadly
weapon[,]” Petition at 1, he plead guilty to armed robbery with a
firearm. (Doc. 19-2 at 160-66).
1
Respondents filed an Answer in Response Including Motion to
Dismiss (Response) (Doc. 19).
Petitioner filed an Answer and
Reply (Reply) (Doc. 20), stating he will rely on “his claim and
merits.”2
See Order (Doc. 7).
II.
EVIDENTIARY HEARING
Petitioner carries the burden to establish a need for an
evidentiary hearing.
See Chavez v. Sec'y, Fla. Dep't of Corr.,
647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears
the burden of establishing the need for an evidentiary hearing
with more than speculative and inconcrete claims of need), cert.
denied, 565 U.S. 1120 (2012).
In this case, the Court can
"adequately assess [Petitioner's] claim without further factual
development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), cert. denied, 541 U.S. 1034 (2004).
is not entitled to an evidentiary hearing.
As such, Petitioner
Schriro v. Landrigan,
550 U.S. 465, 474 (2007).
III.
TIMELINESS
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
With respect to the Petition, Response, Reply, and all exhibits,
the Court will reference the page numbers assigned by the
electronic filing system.
2
2
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).
Respondents contend Petitioner has failed to comply with the
limitation period described above.
Response at 7-8.
Respondents
assert Petitioner is not entitled to the extraordinary remedy of
equitable tolling.
Id. at 8-10.
3
Upon review, the Petition is untimely filed.
A jury found
Petitioner guilty of first degree murder and he discharged a
firearm causing death or great bodily harm during the commission
of the offense.
(Doc. 19-2 at 26-27).
were entered on July 18, 2012.
Judgement and sentence
Id. at 104-109.
At sentencing for
the murder offense, Petitioner accepted the state’s offer to plead
to armed robbery.
Id. at 160-66.
Petitioner appealed to the First District Court of Appeal
(1st DCA).
(Doc. 19-7; Doc. 19-8).
DCA affirmed per curiam.
August 30, 2013.
Id.
On August 14, 2013, the 1st
(Doc. 19-9).
The mandate issued on
The conviction became final on Tuesday,
November 12, 2013 (90 days after August 14, 2013) (According to
rules of the Supreme Court, a 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 timely filed, within 90
days of the appellate court’s denial of that motion.”).
The
limitation period began to run on Wednesday, November 13, 2013,
and ran for 224 days until the Petitioner filed his Rule 3.850
motion on Wednesday, June 25, 2014.
(Doc. 19-10).
court denied the motion on Thursday, June 22, 2017.
The circuit
(Doc. 19-11).
The limitation period remained tolled until the thirty-day period
to appeal expired on Saturday, July 22, 2017.
That being a
Saturday, Petitioner had until Monday July 24, 2017 to file his
4
notice of appeal.
Petitioner failed to timely file a notice of
appeal in the 1st DCA.
Thus, the limitation period began to run
on Tuesday, July 25, 2017 and expired 141 days later on Wednesday,
December 13, 2017.
Of note, Petitioner sought a belated appeal of the denial of
the Rule 3.850 motion (Doc. 19-12 at 1-5); however, on March 15,
2018, the 1st DCA denied the petition for belated appeal on its
merits.3 (Doc. 19-13).
belated
appeal,
its
limitation period.
Since the 1st DCA denied the petition for
filing
did
Response at 8.
not
toll
the
AEDPA
one-year
See Danny v. Sec’y, Fla. Dep’t
of Corr., 811 F.3d 1301, 1304 (11th Cir. 2016); Espinosa v. Sec’y,
Dep’t of Corr., 804 F.3d 1137, 1142 (11th Cir. 2015) (the denial
of a petition for belated appeal never triggers a reexamination of
the conviction or sentence and fails to toll the federal limitation
period).
The record demonstrates the circuit court denied the Rule 3.850
motion on June 22, 2017 (Doc. 19-11 at 1-5). Petitioner, in his
Petition for Belated Appeal, states he received the circuit court’s
order denying his post-conviction motion on July 18, 2017 (within
the thirty-day period to appeal). (Doc. 19-12 at 2). Instead of
filing a notice of appeal, Petitioner, on July 28, 2017 (after the
time to file a timely notice of appeal), filed a petition for
belated appeal in the circuit court. Id. The circuit court, on
August 16, 2017, dismissed the petition and sent a certified copy
of the order of dismissal to Petitioner on August 21, 2017. Id.
Petitioner received the order of dismissal on August 24, 2017.
Id. He then petitioned for a belated appeal in the 1st DCA, id.
at 1-5, and the 1st DCA denied the request for a belated appeal on
its merits. (Doc. 19-13).
3
5
In his Reply, Petitioner does not contend equitable tolling
of the limitation period is warranted.
To the extent he does in
the Petition, he has failed to establish equitable tolling is
warranted.
Damren v. Fla., 776 F.3d 816, 821 (11th Cir. 2015)
(per curiam), cert. denied, 137 S. Ct. 830 (2017).
In order to
be entitled to equitable tolling a petitioner is required to
demonstrate two criteria: (1) the diligent pursuit of his rights
and (2) some extraordinary circumstance that stood in his way and
that prevented timely filing.
Agnew v. Fla., No. 16-14451-CIV,
2017 WL 962489, at *5 (S.D. Fla. Feb. 1, 2017), report and
recommendation adopted by 2017 WL 962486 (S.D. Fla. Feb. 22, 2017).
Equitable tolling is an extraordinary remedy, employed in “rare
and exceptional circumstances and typically applied sparingly.”
Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017)
(quotations and citation omitted), cert. denied, 138 S. Ct. 1042
(2018).
As such, a petitioner must make a showing of extraordinary
circumstances that “are both beyond his control and unavoidable
even with diligence,” a hurdle not easily surmounted.
Howell v.
Crosby, 415 F.3d 1250, 1251 (11th Cir. 2005) (quotations and
citation omitted),
cert. denied, 546 U.S. 1108 (2006).
The
petitioner carries the burden of persuasion, and, in this instance,
Petitioner has not met this high hurdle.
6
Indeed, he has not pled
"enough facts that, if true, would justify an evidentiary hearing
on the issue."
Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198,
1209 (11th Cir. 2014) (quoting Hutchinson v. Fla., 677 F.3d 1097,
1099 (11th Cir. 2012)), cert. denied, 135 S. Ct. 1171 (2015).
Indeed, Petitioner has not presented any justifiable reason
why the dictates of the one-year limitation period should not be
imposed upon him.
Petitioner received notice of the denial of the
Rule 3.850 and failed to timely file a notice of appeal, although
he certainly had time to do so before the thirty-day period expired
to timely appeal.
As noted by Respondents, Petitioner had the
benefit of the mailbox rule and ample time to deliver a notice of
appeal to prison authorities in time to invoke the 1st DCA’s
jurisdiction.
Response at 10.
A habeas petitioner’s lack of legal training and general
ignorance
of
the
law
are
justifying equitable tolling.
not
extraordinary
circumstances
Rivers v. United States, 416 F.3d
1319, 1323 (11th Cir. 2005) (per curiam) (procedural ignorance is
not an acceptable excuse); Perez v. Fla., 519 F. App’x 995, 997
(11th Cir. 2013) (per curiam) (lack of legal education is an
insufficient excuse).
litigants
“are
limitations.”
deemed
As expected of other litigants, pro se
to
know
of
the
one-year
statute
of
Outler v. United States, 485 F.3d 1273, 1282 n.4
(11th Cir. 2007) (per curiam), cert. denied, 552 U.S. 1232 (2008).
7
Petitioner has failed to show an extraordinary circumstance,
and he has not met the burden of showing equitable tolling is
warranted.
The record demonstrates he had ample time to exhaust
state remedies and prepare and file a federal petition.
is not persuaded Petitioner acted diligently.
The Court
Indeed, he failed
to file a timely notice of appeal of the denial of his postconviction motion in the 1st DCA although he certainly had ample
time to timely file his notice with the benefit of the mailbox
rule.
Legal precedence teaches equitable tolling should be used
sparingly, and in this instance, Petitioner has failed to show he
exercised due diligence.
Further, he has not identified some
extraordinary circumstance that stood in his way that prevented
timely filing.
Therefore, the Court finds Petitioner has not
shown he is entitled to extraordinary relief.
As such, equitable
tolling is not warranted.
Although, “[a]ctual innocence may provide a gateway for a §
2254 petitioner to obtain a decision on the merits for an otherwise
time-barred claim[,]”
Creel v. Daniels, No. 5:16-cv-00803-LSC-
JEO, 2018 WL 2187797, at *2 (N.D. Ala. Apr. 12, 2018), report and
recommendation adopted by 2018 WL 2184543 (N.D. Ala. May 11, 2018)
(citing McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)), to invoke
the
fundamental
miscarriage
of
justice
exception
to
AEDPA’s
statute of limitations, a habeas petitioner must make a credible
8
showing of actual innocence with new reliable evidence that was
not presented at trial.
See Rozzelle v. Sec’y, Fla. Dep’t of
Corr., 672 F.3d 1000, 1011 (11th Cir.) (per curiam) (finding the
alleged exception for AEDPA untimeliness requires a petitioner (1)
to present “new reliable evidence . . . that was not presented at
trial,” . . .
and (2) to show “that it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt” in light of the new evidence) (citations
omitted), cert. denied, 568 U.S. 914 (2012).
Here, Petitioner fails to point to any evidence demonstrating
it is more likely than not that no juror, acting reasonably, would
have found him guilty beyond a reasonable doubt in light of new
evidence.
See
McQuiggin,
569
U.S.
at
395
(restricting
the
miscarriage of justice exception to a severely confined category
of cases in which new evidence shows it is more likely than not
that no reasonable juror would have convicted the petitioner)
(citation
and
quotation
omitted).
Lack
of
new
evidence
establishing actual innocence proves fatal to any gateway claim.
In conclusion, Petitioner has not presented any justifiable
reason why the dictates of the one-year imitation period should
not be imposed upon him.
He has failed to demonstrate he is
entitled to equitable tolling.
He has failed to make a credible
showing of actual innocence by offering new evidence that is
9
directly probative of his innocence.
Therefore, the Court will
dismiss the Petition and the case with prejudice pursuant to 28
U.S.C. ' 2244(d).
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. 1) and the
case are DISMISSED with prejudice.
2.
The Clerk shall enter judgment dismissing the Petition
for Writ of Habeas Corpus (Doc. 1) with prejudice and dismissing
the case with prejudice.
3.
4.
The Clerk shall close the case.
If Petitioner appeals the dismissal of the Petition for
Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of
appealability.
4
Because
this
Court
has
determined
that
a
certificate of appealability is not warranted, the Clerk shall
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.
4
10
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 19th day of
May, 2020.
sa 5/18
c:
Cary Austin, Jr.
Counsel of Record
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?