Criner v. Secretary Florida Department Of Corrections

Filing 14

ORDER dismissing with prejudice 6 the Amended Petition as untimely; directing the Clerk to enter judgment, terminate any pending motions, and close this case; denying a certificate of appealability and directing the Clerk to terminate from the pending motions report any motion to proceed on appeal as a pauper that may be filed in this case. Signed by Senior Judge Timothy J. Corrigan on 3/10/2025. (KLC) (Additional attachment(s) added on 3/11/2025: # 1 Attachments) (MDC). Modified on 3/11/2025 to add attachment (MDC).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TAKOYA DOMINIC CRINER,
Petitioner,
v.

Case No. 3:21-cv-1160-TJC-LLL

SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS
and FLORIDA ATTORNEY GENERAL,
Respondents.
ORDER
I.

Status
Petitioner, an inmate of the Florida penal system, is proceeding on an

Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 6).
The original Petition was filed on November 19, 2021 (Doc. 1) by counsel who
later withdrew. See Order (Doc. 13) (granting counsel’s motion to withdraw).
Petitioner challenges a 2005 state court (Duval County, Florida) judgment of
conviction for two counts of first-degree murder and one count of attempted
first-degree murder. Doc. 6 at 2. Petitioner is serving a life sentence. See Fla.
Dep’t

of

Corrs.,

Offender

Information

Search,

available

at

https://fdc.myflorida.com/OffenderSearch/Search.aspx (last visited Feb. 18,
2025).

Respondents filed a Response (Doc. 9) with exhibits (Docs. 9-1 to 9-90;
Ex.), arguing that this case was untimely filed and should be dismissed with
prejudice.1 Petitioner, through counsel, filed a Reply (Doc. 11), in which he
argues the case was timely filed or, alternatively, he is entitled to equitable
tolling of the statutory limitations period. This case is ripe for review.2
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;
1 The Court will cite exhibits using the number designations Respondents assign, but

page numbers will be those assigned by the Court’s electronic case management
system.
2 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318
(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th
Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Id. The Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
2

(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)(1), (2).
III.

Procedural History

On May 9, 2005, Petitioner proceeded to a jury trial on two counts of firstdegree murder and one count of attempted first-degree murder as charged by
indictment. Ex. 4 at 2–3; Ex. 11 at 2. The surviving victim, Gavin Berry,
testified on behalf of the State, and Petitioner testified on his own behalf. Ex.
12 at 5, 78; Ex. 16 at 4, 26. As summarized in Petitioner’s brief on direct appeal,

3

Petitioner’s and Mr. Berry’s accounts differed drastically regarding what
precipitated the shooting and who fired the shots. See Ex. 22 at 9–12, 15–17.
Mr. Berry testified that Petitioner, who was seated on a couch behind the three
victims, unexpectedly opened fire on them. Id. at 9–10. Petitioner, on the other
hand, testified that he and the three victims casually “drank beer and smoked
marijuana for at least thirty minutes,” and then he and Mr. Berry began
arguing and fighting over money Petitioner owed Mr. Berry for drugs. Id. at 15–
16. “[Mr.] Berry then ran to get a handgun that was sitting on the arm of the
couch,” so Petitioner tried to flee. Id. at 17. Mr. Berry hit Petitioner on the back
of the head with the gun, and the two began “tussling . . . for the gun,” during
which the “gun went off several times.” Id.
On May 14, 2005, the jury returned guilty verdicts on all counts. Ex. 6 at
2–5; Ex. 19 at 42–43. On June 16, 2005, the trial court entered judgment and
sentenced Petitioner to three life terms to run concurrently, with a twenty-fiveyear minimum mandatory sentence for using a firearm. Ex. 7 at 2, 5–8; Ex. 10
at 148; Ex. 21 at 2, 20, 22. Through retained counsel, Tony Axam, admitted pro
hac vice, Petitioner sought a direct appeal, raising ten issues, including one for
ineffective assistance of trial counsel. Ex. 22 at 2–4. In a written opinion issued
on November 3, 2006, the First District Court of Appeal affirmed Petitioner’s
convictions and sentences. Ex. 25 at 2, 4. The First DCA wrote to address three
issues, holding as follows: the trial court did not err in denying Petitioner’s
4

motion for judgment of acquittal; the State “presented substantial evidence
showing [Petitioner] acted with premeditation”; and Petitioner’s ineffective
assistance of trial counsel claim “concern[ed] strategic decisions” by counsel and
was not subject to review on direct appeal. Id. at 4. The First DCA denied
Petitioner’s motion for rehearing on December 7, 2006, and issued its mandate
on December 27, 2006. Ex. 26 at 2, 4.
On November 8, 2007, Attorney Axam filed in the trial court a motion for
postconviction relief under Florida Rule of Criminal Procedure 3.850 on
Petitioner’s behalf but styled it “pro se” (2007 Rule 3.850 Motion). Ex. 29 at 2.
The 2007 Rule 3.850 Motion, which “merely regurgitated the exact issues raised
on direct appeal,” Doc. 6 at 20, was dated November 7, 2007, and purportedly
was signed by “Takoya Criner,” Ex. 29 at 51. Petitioner contends he did not sign
the 2007 Rule 3.850 Motion or authorize its filing. Doc. 6 at 20–21; Doc. 11 at
16. The trial court summarily denied Petitioner’s 2007 Rule 3.850 Motion on
November 26, 2007, finding as follows:
All the issues raised by [Petitioner] . . . could have, and
should have, been litigated before the trial court[] or on
direct appeal. Indeed, the motion itself and the District
Court of Appeal Opinion affirming [Petitioner’s]
conviction, reveal that virtually all the issues have
already been litigated. Accordingly, the matters raised
are procedurally barred.
Ex. 30 at 2.
Before he received the trial court’s order summarily denying his 2007
5

Rule 3.850 Motion, Petitioner attempted to withdraw it by filing a pro se motion
to dismiss. Ex. 31 at 2. Petitioner received a copy of the trial court’s order
denying the 2007 Rule 3.850 Motion the same day he mailed the pro se motion
to dismiss. Id. at 3; Ex. 32 at 3, 8. Thus, he filed a pro se motion for
reconsideration of the trial court’s ruling, explaining that a prison law clerk
reviewed the 2007 Rule 3.850 Motion for him when he received it from Attorney
Axam on about November 12, 2007, and the law clerk told him the 2007 Rule
3.850 Motion “was insufficient since he could not raise the exact [same] issues
he raised on direct [appeal]” in a Rule 3.850 motion. Ex. 32 at 3.
The trial court denied Petitioner’s pro se motions to dismiss and for
reconsideration. Ex. 1 at 28. Before those orders were issued, Attorney Axam
filed a notice of appeal from the trial court’s summary denial of the 2007 Rule
3.850 Motion. Ex. 33 at 2–3. Attorney Axam did not file an appellate brief. See
Ex. 27 at 2. Proceeding pro se, Petitioner filed his own notice of appeal from the
orders denying his motions to dismiss and for reconsideration, and he filed a
supporting brief on January 11, 2008.3 See Attachments (Notice of Appeal,
mailed January 11, 2008); Ex. 36 at 9–10. The First DCA docketed all filings in

3 Petitioner’s pro se notice of appeal and other relevant documents were not filed as

exhibits. The Court takes judicial notice of Petitioner’s state court docket and relevant
filings. See State v. Criner, No. 2002-CF-6549 (Fla. 4th Cir. Ct.). For ease of reference,
the Court attaches relevant filings to this Order. The attached state court filings will
be identified in the body of the Order when discussed and cited as “Attachments.”
6

one appeal, assigning case number 1D08-246. Ex. 27 at 2.
On February 18, 2008, the State filed with the First DCA a notice that it
would not be filing an answer brief. Ex. 37 at 2. The State mailed a copy of the
notice to the pro se Petitioner at his correctional institution. Id. at 3. On April
25, 2008, Petitioner’s mother wrote a letter to the clerk of the trial court, asking
for copies of materials relevant to Petitioner’s “appeals case.” See Attachments
(letter by Betty R. Criner, dated April 22, 2008, and docketed April 25, 2008);
see also Ex. 1 at 27. On June 18, 2008, Petitioner filed a pro se notice of inquiry
in the trial court asking about the status of his appeal of the trial court’s denial
of his 2007 Rule 3.850 Motion and requesting copies of “any orders set down by
the court.” See Attachments (Notice of Inquiry, mailed June 18, 2008); see also
Ex. 1 at 27. On July 25, 2008, the First DCA per curiam affirmed the trial court’s
orders denying Petitioner’s 2007 Rule 3.850 Motion and his motions to dismiss
and for reconsideration without a written opinion. Ex. 38 at 2. The First DCA’s
decision identified Petitioner as a “pro se” appellant. Id. The mandate issued on
August 12, 2008. Ex. 39 at 2.
Petitioner retained new counsel, Bernard F. Daley, Jr., four months later,
in December 2008. See Doc. 6 at 3. Through Attorney Daley, on December 24,
2008, Petitioner moved the First DCA to recall its mandate and withdraw its
decision affirming the trial court’s order summarily denying his 2007 Rule 3.850
Motion. Ex. 40 at 2. The First DCA denied Petitioner’s motion to recall its
7

mandate on January 6, 2009. Ex. 42 at 2. Attorney Daley also moved for an
extension of the two-year statutory timeframe to file a Rule 3.850 motion. Ex.
34 at 2; Ex. 35 at 2. On March 23, 2009, Petitioner filed a second, counseled
Rule 3.850 motion (2009 Rule 3.850 Motion). Ex. 1 at 27; Ex. 65 at 65. On April
20, 2009, the trial court denied the 2009 Rule 3.850 Motion as untimely,
successive, and procedurally barred. Ex. 44 at 27–28. Specifically, the trial court
found as follows:
Initially, this Court notes that the instant [Rule
3.850] Motion is untimely, in that it was filed more than
two years after [Petitioner’s] convictions became final.
Further, [Petitioner] has previously filed a [Rule] 3.850
Motion for Post Conviction Relief on November 8, 2007,
which was denied on its merits and affirmed on appeal
through a Mandate issued on August 14 [sic],4 2008.
Thus, the instant Motion is likewise successive.
Although [Petitioner] attempted to circumvent
these procedural bars by arguing in the First [DCA]
that his [2007 Rule 3.850 Motion] should be deemed a
nullity, the Court declined to make such a finding and
affirmed the trial court[’s] denial of [Petitioner’s 2007
Rule 3.850 Motion]. Since the instant claims could and
should have been raised in his [2007 Rule 3.850
Motion], the instant Motion is procedurally barred and
constitutes an abuse of process.
Id. Claiming that neither he nor Attorney Daley learned the trial court had
denied his 2009 Rule 3.850 Motion until after the appeal time had expired,

4 The mandate issued on August 12, 2008. Ex. 39 at 2.

8

Petitioner moved to file a belated appeal, id. at 2, 8–10, which the First DCA
granted, Ex. 62 at 2–3.5
On March 16, 2011, the First DCA issued a written opinion reversing the
trial court’s order summarily denying Petitioner’s 2009 Rule 3.850 Motion as
untimely and remanding for further proceedings. Ex. 69 at 5. The First DCA
concluded the trial court erred in denying Petitioner’s 2009 Rule 3.850 Motion
as procedurally barred because, in his 2007 Rule 3.850 Motion, Petitioner raised
one claim of ineffective assistance of trial counsel, which the “court apparently
overlooked” and which was “never decided on the merits.” Id. at 4. The First
DCA further found the trial court erred in denying Petitioner’s motion for an
enlargement of time to file a Rule 3.850 motion and remanded with instructions
for the trial court to conduct an evidentiary hearing, if necessary, regarding the
motion to extend:
[Petitioner’s] postconviction claims of ineffective
assistance of counsel were never decided on the merits.
Thus, a subsequent rule 3.850 motion would not be
procedurally barred as successive, and the trial court’s
reason for denying [Petitioner’s] motion to extend
would be erroneous. . . .
We note that in [Petitioner’s] motion to extend,
he alleged that his [2007 R]ule 3.850 [M]otion was
fraudulent and that he spent the remainder of his two5 The First DCA twice relinquished jurisdiction to the trial court to appoint a special

master to conduct an evidentiary hearing on Petitioner’s petition to file a belated
appeal. Ex. 50 at 2; Ex. 58 at 4, 6; Ex. 59 at 2. The special master ultimately
recommended Petitioner’s petition be granted. Ex. 61 at 4.
9

year time period attempting to get his previous motion
nullified as such. If true, these allegations may
constitute good cause for needing additional time to file
a proper motion. Therefore, we conclude that the trial
court erred in summarily denying [Petitioner’s] motion
as untimely without considering the grounds for the
extension.
Id. at 5 (internal citations omitted). The mandate issued on April 1, 2011. Ex.
70 at 3.
On remand, the trial court convened a status conference at which the
State stipulated Petitioner’s 2009 Rule 3.850 Motion “should be deemed timely,”
and that Petitioner should be permitted to amend the motion. Ex. 1 at 24; Ex.
72 at 22. The trial court accepted the stipulations. Ex. 72 at 22–23. Petitioner,
through Attorney Daley, filed an amended Rule 3.850 motion on June 27, 2011.
Id. at 3, 5. The amended Rule 3.850 motion remained pending for years, id. at
3, and in August 2015, Petitioner retained new postconviction counsel because
Attorney Daley was disbarred, id. at 44–45. On June 16, 2017, Petitioner’s new
counsel, Rick Sichta and Joe Hamrick, moved to amend one ground raised in
the amended Rule 3.850 motion because Attorney Daley failed to properly
investigate or develop a record on whether Petitioner’s trial counsel was
ineffective for failing to hire and call as a witness a crime scene expert who
could rebut Mr. Berry’s testimony. Id. at 45–46; see also Ex. 73 at 4–5.
The trial court permitted Petitioner to file a second amended Rule 3.850
motion and, on June 15, 2018, conducted an evidentiary hearing on two grounds
10

of ineffective assistance of trial counsel. Ex. 74 at 2, 7.6 The trial court denied
Petitioner’s second amended Rule 3.850 motion, concluding “there [was] no
basis to conclude trial [c]ounsel’s strategy was defective, and even if it was,
there [was] no evidence to suggest the verdict would have been affected.” Ex. 73
at 57–61. On July 24, 2020, the First DCA per curiam affirmed the trial court’s
denial of the second amended Rule 3.850 motion without a written opinion. Ex.
82 at 2. The mandate issued on October 6, 2020. Id. at 4.
Through counsel, Petitioner filed a motion to correct illegal sentence on
September 30, 2020. Ex. 84 at 3, 6–10. The trial court dismissed the motion on
October 6, 2020. Id. at 3, 27–28. Petitioner moved for rehearing and to file an
amended motion to correct illegal sentence and also filed an amended/second
motion to correct illegal sentence. Id. at 3, 59; see also Ex. 85 at 100. The trial
court denied his motions. Ex. 87 at 39–41; see also Ex. 84 at 3; Ex. 88 at 4. The
First DCA per curiam affirmed the trial court’s denials without a written
opinion on September 17, 2021. Ex. 90 at 2. The mandate issued on November
19, 2021, id. at 4, and Petitioner initiated this habeas action the same day.
IV.

Analysis

Petitioner argues he timely initiated this habeas action, but even if the
Court concludes he did not, he is entitled to equitable tolling because he

6 Petitioner withdrew three of his five grounds. Ex. 74 at 7–8. The State conceded

Petitioner was entitled to a hearing on the remaining two grounds. Id. at 9.
11

allegedly

“received

abysmal

representation”

during

his

state

court

postconviction proceedings by Attorneys Axam and Daley, both of whom later
were disbarred—Axam in 2011 and Daley in 2015. Doc. 6 at 19.
i. AEDPA Calculation
The parties dispute the date Petitioner’s judgment and sentence became
final under § 2244. Petitioner maintains his judgment and sentence became
final on March 7, 2007, ninety days after the First DCA denied his motion for
rehearing on direct appeal. Id. at 18–19. Respondents, on the other hand, argue
the operative date is January 8, 2007, thirty days after the First DCA denied
Petitioner’s motion for rehearing, because the First DCA issued a written
opinion, and thus Petitioner was required to seek discretionary review in the
Florida Supreme Court, which he did not do. Doc. 9 at 4–5, 14. In his Reply,
Petitioner argues he could not have sought discretionary review in the Florida
Supreme Court because the First DCA’s “relatively short opinion contained no
discussion of a complicated or disputed legal question” and did not conflict “with
a decision of another District Court of Appeal or of the Florida Supreme Court
on the same question of law.” Doc. 11 at 5.
A state court judgment becomes final for purposes of AEDPA’s one-year
statute of limitations at “the conclusion of direct review or the expiration of time
for seeking such review.” § 2244(d)(1)(A). To determine when the direct review
of a petitioner’s state court judgment and conviction has ended, federal habeas
12

courts “must look to the actions taken by the state court and the relevant state
law.” Chamblee v. Florida, 905 F.3d 1192, 1196 (11th Cir. 2018). In habeas
proceedings, federal courts “are bound by a state court’s interpretation of its
own laws and procedures.” Id.
Section 3, article V of the Florida Constitution provides in pertinent part
as follows:
[The Florida Supreme Court] [m]ay review any decision
of a district court of appeal that expressly declares valid
a state statute, or that expressly construes a provision
of the state or federal constitution, or that expressly
affects a class of constitutional or state officers, or that
expressly and directly conflicts with a decision of
another district court of appeal or of the supreme court
on the same question of law.
Art. V, § 3(b)(3), Fla. Const. The Florida Supreme Court has interpreted this
grant of discretionary subject matter jurisdiction broadly, holding it may review
“any decision of a district court that expressly addresses a question of law
within the four corners of the opinion itself.” Fla. Star v. B.J.F., 530 So. 2d 286,
288 (Fla. 1988). With respect to the last category of cases over which the Florida
Supreme Court may invoke discretionary jurisdiction (conflict), “it is not
necessary that conflict actually exist for [the court] to possess subject-matter
jurisdiction, only that there be some statement or citation in the opinion that
hypothetically could create conflict if there were another opinion reaching a
contrary result.” Id.

13

In the written opinion on Petitioner’s direct appeal, the First DCA
addressed three points of law, two of which were discussed in the context of the
evidence admitted at Petitioner’s trial. Ex. 25 at 4. Because the court
“addresse[d] a question of law within the four corners of the opinion itself,” the
Florida Supreme Court had discretionary jurisdiction to review the First DCA’s
written opinion, regardless of whether a conflict with another district court or
the Florida Supreme Court “actually exist[ed].” See Fla. Star, 530 So. 3d at 288.
The opinion Petitioner cites in his Reply is inapposite because that case
involved an “unelaborated” opinion that “merely cite[d] to a case not pending
review in, or not quashed or reversed by” the Florida Supreme Court. See Wells
v. State, 132 So. 3d 1110, 1111 (Fla. 2014) (citing with approval Fla. Star, 530
So. 3d at 288). The First DCA’s opinion here cannot be described as
“unelaborated.”
Since the First DCA issued a written opinion in affirming Petitioner’s
direct appeal, Petitioner was not entitled to the ninety-day window to seek
certiorari review with the United States Supreme Court but instead was
required to seek review with the Florida Supreme Court within thirty days.
Thus, Petitioner’s judgment and sentence became final on Monday, January 8,
2007, thirty days after the First DCA denied his motion for rehearing.7 His

7 The thirtieth day fell on Saturday, January 6, 2007, so Petitioner had until the next

business day.
14

AEDPA limitations period started to run the following day, on Tuesday,
January 9, 2007.
When Petitioner filed his pro se 2007 Rule 3.850 Motion on November 7,
2007, 302 days of his one-year AEDPA limitations period had elapsed.8 His
limitations period was tolled during the pendency of the state court proceedings
on his 2007 Rule 3.850 Motion, which finally resolved when the First DCA
issued its mandate on August 12, 2008. Petitioner’s AEDPA clock resumed the
following day, Wednesday, August 13, 2008. On that date, Petitioner had sixtythree days remaining in which to file a federal habeas petition. Petitioner’s oneyear limitations period expired on October 15, 2008, without the filing of
another proper tolling motion. Thus, the Court finds that the original Petition,
filed on November 19, 2021, was untimely filed.
Petitioner argues that Attorney Daley’s filing of the motion to recall the
First DCA’s mandate “arguably vitiated the finality of the appeal of [his] first
postconviction motion,” meaning his 2007 Rule 3.850 Motion appeal did not
resolve until the First DCA denied his motion to recall mandate on January 6,
2009. Doc. 6 at 22. Although the motion to recall mandate arguably would have
tolled the AEDPA limitations period between the date it was filed and the date

8 Attorney Axam filed the 2007 Rule 3.850 Motion on Petitioner’s behalf on November

8, 2007, but the certificate of service was dated November 7, 2007. Ex. 29 at 51. The
Court gives Petitioner the benefit of the one-day difference since the Motion was styled
“pro se.”
15

the First DCA denied it, see Marshall v. Sec’y, Dep’t of Corr., No. 8:10-cv-2366T-23MAP, 2013 WL 2382291, at *2–3 (M.D. Fla. May 30, 2013), aff’d sub nom.,
828 F.3d 1277 (11th Cir. 2016), when the motion to recall mandate was filed,
the limitations period had already expired. In other words, there was nothing
left to toll. See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating
that 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) (“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.”).9
For the reasons stated, the Court concludes Petitioner initiated this
action beyond the one-year limitations period.

9 Even under Petitioner’s calculation, his limitations period would have expired before

he filed his motion to recall mandate. With the benefit of a ninety-day window to seek
certiorari review in the United States Supreme Court, Petitioner’s judgment and
sentence would have become final on March 7, 2007, and his AEDPA limitations period
would have started to run the following day, March 8, 2007. His 2007 Rule 3.850
Motion would have been filed after 244 days had run on his federal clock, meaning
Petitioner would have had 121 days remaining in which to initiate a federal habeas
action after the First DCA issued its August 12, 2008 mandate. That would have made
Petitioner’s federal filing deadline Friday, December 12, 2008. Attorney Daley did not
file the motion to recall mandate until December 24, 2008. See Ex. 27 at 2.
16

ii. Equitable Tolling
To overcome the time bar, Petitioner invokes the doctrine of equitable
tolling on the ground that he “received abysmal representation, amounting to a
constructive abandonment of counsel, by . . . two attorneys who would each later
be disbarred for egregious behavior in other cases.” Doc. 6 at 19. In the absence
of equitable tolling, Petitioner’s limitations period expired on October 15, 2008,
before he retained Attorney Daley. As such, the Court focuses on Petitioner’s
assertions solely as they relate to Attorney Axam’s conduct.
“When a prisoner files for habeas corpus relief outside the one-year
limitations period, a district court may still entertain the petition if the
petitioner establishes that he is entitled to equitable tolling.” Damren v.
Florida, 776 F.3d 816, 821 (11th Cir. 2015). The United States Supreme Court
established a two-prong test for equitable tolling of the one-year limitations
period, requiring that a petitioner “show (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances stood in his
way and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007).
An attorney’s “negligence or gross negligence [does not constitute] a
sufficient extraordinary circumstance all by itself.” Cadet v. Fla. Dep’t of Corr.,
853 F.3d 1216, 1228 (11th Cir. 2017). Similarly, an attorney’s violation of an
ethical rule does not by itself suffice. Id. at 1232. To satisfy the “strong burden”
on equitable tolling, Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008), the
17

gravamen of a petitioner’s complaint cannot be that his attorney engaged in
misconduct, whether described as “garden variety negligence,” “gross
negligence,” or that amounting to “bad faith [or] dishonesty,” Holland v. Florida,
560 U.S. 631, 652 (2010); Cadet, 853 F.3d at 1228. Rather, the petitioner must
demonstrate that his lawyer effectively abandoned him or acted adversely to
his interests, as those terms are understood under “fundamental principles of
agency law.” Cadet, 853 F.3d at 1229, 1234 (“Abandonment denotes
renunciation or withdrawal, or a rejection or desertion of one’s responsibilities,
a walking away from a relationship.”); see also Thomas v. Att’y Gen., 992 F.3d
1162, 1171, 1181–82 (11th Cir. 2021) (summarizing the Supreme Court’s
“guidance on how courts should conduct the extraordinary circumstances
analysis” in the context of an attorney’s conduct).
In Holland, the Supreme Court held the petitioner may have been entitled
to equitable tolling based on the following circumstances: the petitioner’s courtappointed attorney stopped regularly communicating with him during the
pendency of his state postconviction proceedings despite the petitioner’s many
letters stressing the importance of timely filing a federal habeas petition; the
state court denied the petitioner’s pro se requests to discharge his attorney “on
the perverse ground that petitioner failed to act through appointed counsel”;
and the attorney failed to advise the petitioner that the Florida Supreme Court
had affirmed the denial of his state postconviction motion with only twelve days
18

remaining on his AEDPA limitations period. 560 U.S. at 652, 654. See also id.
at 659 (Alito, J., concurring). The Court did not conclude as a matter of law that
the attorney’s conduct warranted equitable tolling, only that the Eleventh
Circuit’s test was too rigid in that it required a petitioner to show “proof of bad
faith, dishonesty, divided loyalty, mental impairment or so forth” when seeking
equitable tolling based on an attorney’s negligence. Id. at 634, 650–51, 63.
In Thomas, the Eleventh Circuit held the petitioner was entitled to
equitable tolling because his attorney—appointed specifically to file a federal
habeas petition—“never informed [him] that her goal was to use his habeas
action as a ‘test case’ to challenge AEDPA’s limitations period and, to that end,
to sacrifice [his] petition’s timeliness . . . .” 992 F.3d at 1171, 1183. The court
agreed with the district court that the attorney’s conduct “extend[ed] well
beyond the gross negligence described in Cadet [and] reache[d] into the depths
of abandonment.” Id. at 1183 (internal punctuation omitted).
If a petitioner demonstrates an extraordinary circumstance, he also must
demonstrate a “causal link” between that extraordinary circumstance and the
missed federal filing deadline. Cadet, 853 F.3d at 1236 (explaining that an
attorney’s “bad faith, dishonesty, divided loyalty, [or] mental impairment . . . .
can be sufficient if there is a causal link”); see also Maples v. Thomas, 565 U.S.
266, 282–83, 289 (2012) (holding, in the context of procedural default, the
petitioner “[could] not be charged with the acts or omissions” of his state
19

postconviction attorneys who left the firm without advising him or moving to
withdraw, effectively leaving him pro se without his or the court’s knowledge,
causing him to miss his appeal deadline and thereby procedurally defaulting
his habeas claims).
Relying primarily on Holland and Thomas, Petitioner argues he is
entitled to equitable tolling because Attorney Axam (1) engaged in conduct
involving “bad faith [or] dishonesty” by forging (or directed the forging of) his
signature on his 2007 Rule 3.850 Motion and filing it without his express
permission and (2) abandoned him by failing to timely advise him of the First
DCA’s decisions on direct appeal and on appeal from the trial court’s denial of
his 2007 Rule 3.850 Motion.10 Doc. 6 at 21, 23–24; see also Doc. 11 at 9, 11–12.

10 Petitioner also asserts, “The same inequities that prompted the State’s Attorney’s

Office and the trial court to permit him” to proceed on his belated 2009 Rule 3.850
Motion justify application of the doctrine of equitable tolling for purposes of his federal
habeas petition. Doc. 6 at 20. This argument is without merit. The legal standard for
equitable tolling is different and far more rigorous than the standard for filing a
belated Rule 3.850 motion. See, e.g., State v. Boyd, 846 So. 2d 458, 460 (Fla. 2003)
(holding a convicted prisoner may satisfy the “good cause” standard for filing a belated
motion for postconviction relief simply by showing he “was transferred to another
prison and his legal files had not arrived”).
Additionally, Petitioner relies on an unpublished Fifth Circuit opinion. Doc. 6 at 24
(citing Jimenez v. Butcher, 839 F. App’x 918 (5th Cir. 2021)). In Jimenez, the court
held the petitioner was entitled to equitable tolling because his first postconviction
lawyer lied to him for over seven months about the status of a state proceedings, a
deception that was “the reason that nearly eleven months of the one-year [AEDPA
limitations] period had been eaten up,” and his second lawyer delayed in sending him
documents he needed to file his habeas petition. Jimenez, 839 F. App’x at 920. The
court reasoned “the combined deception and tardiness of counsel constitute[d]
extraordinary circumstances,” which directly caused the petitioner to miss his filing
20

In support of the latter argument, which Petitioner raises for the first
time in his Reply, Petitioner provides his own affidavit and an affidavit from
his sister-in-law, Pamila Davis, who participated in discussions with Attorney
Axam. Doc. 11 at 9, 15, 70. In his own affidavit, Petitioner avers he learned of
the First DCA’s decision on direct appeal when Attorney Axam mailed him a
draft of the 2007 Rule 3.850 Motion in November 2007. Id. at 16. He claims to
have learned of the First DCA’s decision on appeal from the denial of his 2007
Rule 3.850 Motion sometime in December 2008, “at which point he and his
family scrambled to find new postconviction counsel.” Id.
Both Petitioner and Ms. Davis aver they had a phone conversation with
Attorney Axam about the draft of the 2007 Rule 3.850 Motion before Attorney
Axam filed it. Id. at 16, 71. During that phone call, they “expressed [their]
frustration with Attorney Axam for his failure to timely inform [them] of the
[First] DCA’s decision [on direct appeal],” and they informed Attorney Axam
that “he was fired” because the “postconviction motion [he] prepared was a
regurgitation of the same issues and arguments previously raised on direct
appeal.”11 Id.
deadline. Id. Not only is Jimenez not binding, but the facts are readily distinguishable,
for reasons articulated later in this Order.
11 The timeline of events described by Petitioner and Ms. Davis in their affidavits

differs from what Petitioner represented to the trial court when attempting to
withdraw his 2007 Rule 3.850 Motion. In the trial court, Petitioner asserted he had
not received a copy of the 2007 Rule 3.850 Motion until November 12, 2007, after
21

With respect to Petitioner’s first argument (“bad faith”), accepting for
purposes of these proceedings that Attorney Axam’s conduct was “unethical,
fraudulent, and incompetent,” Doc. 6 at 21, the argument that an attorney’s
misconduct alone justifies equitable tolling has been soundly rejected, Holland,
560 U.S. at 651–52; Thomas, 992 F.3d at 1182. See also Cadet, 853 F.3d at 1234
(“Negligence, however gross, is not the same as abandonment.”). This is so even
when an attorney violates an ethical rule or engages in conduct that can be
described as grossly negligent or involves bad faith or dishonesty. Id. at 1232–
33 (explaining that “[p]rofound problems plague [the] position” that an
attorney’s ethical violation entitles his client to equitable tolling).
Moreover, even if Attorney Axam acted in “bad faith” in connection with
Petitioner’s 2007 Rule 3.850 Motion, that conduct did not directly cause
Petitioner to miss his federal filing deadline. If anything, Attorney Axam’s
unauthorized filing of the 2007 Rule 3.850 Motion ultimately benefitted
Petitioner vis-à-vis his federal remedies because that Motion tolled Petitioner’s
AEDPA limitations with sixty-three days remaining in which to file a federal
habeas petition. Petitioner avers he fired Attorney Axam in November 2007,
when his state postconviction proceedings were still pending and his AEDPA
limitations period was tolled. Thus, unlike the petitioners in Holland and

Attorney Axam filed it, and he did not speak with Attorney Axam until November 26,
2007. Ex. 32 at 3.
22

Thomas, Petitioner was not at the mercy of an appointed attorney to file a
federal habeas petition on his behalf.
With respect to Petitioner’s second argument (“abandonment”), Petitioner
faults Attorney Axam for not advising him of the First DCA’s decisions on direct
appeal and on appeal from the trial court’s denial of his 2007 Rule 3.850 Motion.
Doc. 11 at 9–10. Even if Attorney Axam had not immediately notified Petitioner
of the First DCA’s opinion on direct appeal, that conduct did not cause
Petitioner to miss the federal filing deadline. Petitioner concedes he learned
about the First DCA’s decision on direct appeal in early November 2007, when
he received a draft of the 2007 Rule 3.850 Motion from Attorney Axam. Id. at
16. When the 2007 Rule 3.850 Motion was filed, Petitioner had sixty-three days
remaining in which to file a federal habeas petition, and he was not reliant on
Attorney Axam to file a federal habeas petition given Petitioner had fired him.
And since Petitioner fired Attorney Axam before the conclusion of his
appeal from the denial of the 2007 Rule 3.850 Motion, Attorney Axam had no
obligation to communicate with, advise, or update Petitioner in connection with
those proceedings. It appears Petitioner argues Attorney Axam remained his
counsel of record during the pendency of his appeal from the denial of the 2007
Rule 3.850 Motion because Attorney Axam filed a notice of appeal. See id. at 11,

23

17.12 However, Attorney Axam did not submit a merits brief, and the relevant
filings in the state court demonstrate Petitioner was in fact proceeding pro se:
Petitioner filed his own pro se notice of appeal and merits brief; in its notice
that it would not be filing an answer brief, the State certified that it had mailed
a copy of the filing to the pro se Petitioner at his place of incarceration, not to
Attorney Axam; Petitioner’s mother inquired with the clerk of the trial court
about the status of his pro se appeal; Petitioner filed a pro se notice of inquiry
in the trial court, asking whether there had yet been a disposition made in his
pro se appeal from his “Rule 3.850 [Motion]”; and the First DCA’s July 25, 2008
opinion indicates Petitioner was proceeding “pro se.” See Ex. 1 at 27–28; Ex. 27
at 2; Ex. 36 at 2; Ex. 37 at 3; Ex. 38 at 2; see also Attachments (Notice of Appeal,
mailed January 11, 2008; letter by Betty R. Criner, dated April 22, 2008, and
docketed April 25, 2008; Notice of Inquiry, mailed June 18, 2008).
Unlike the petitioner in Holland, whose pro se requests to discharge his
court-appointed attorney were denied, Petitioner successfully discharged
Attorney Axam and chose to proceed pro se on appeal from the denial of his
2007 Rule 3.850 Motion. Accordingly, he had the “right personally to receive

12 At the First DCA’s request, Attorney Axam also filed a docketing statement. See Ex.

27 at 2. See also Attachments (Docketing Statement and Notice of Appearance of
Counsel, docketed February 25, 2008). In the docketing statement, Attorney Axam
indicated the nature of the case was a “[d]irect [a]ppeal,” suggesting some confusion
as to why he was asked to submit the form. See id.
24

notice” of any filings or rulings related to his proceedings. Cf. Maples, 565 U.S.
at 271, 288 (noting the petitioner was “left unrepresented at a critical time for
his state postconviction [proceedings with no] . . . clue of any need to protect
himself pro se” and with no “right personally to receive notice” of any filings or
rulings). For the reasons stated, the Court finds Petitioner does not show that
“some extraordinary circumstances stood in his way and prevented timely
filing” of his federal habeas action. See Lawrence, 549 U.S. at 336.
Not only does Petitioner fail to demonstrate extraordinary circumstances
caused him to miss his federal habeas deadline, but he does not demonstrate he
acted with reasonable diligence in pursuing federal remedies before his AEDPA
limitations period expired. Between July 25, 2008, when the First DCA issued
its opinion on appeal from the denial of the 2007 Rule 3.850 Motion, and October
15, 2008, when Petitioner’s limitations period expired, Petitioner took no action
to file or preserve his right to file a federal habeas action, either pro se or
through counsel. Contrary to the position he takes in support of his Petition,
Petitioner, through Attorney Daley, explained in his initial brief on appeal from
the denial of his 2009 Rule 3.850 Motion that he waited until December 2008 to
hire Attorney Daley because of financial constraints, not because he was
unaware the First DCA had rendered a decision on his 2007 Rule 3.850 Motion.
Ex. 66 at 12. He asserted as follows:
In December of 2008, [Petitioner’s] family
25

mustarded [sic] the necessary resources to retain
undersigned counsel to review the record . . . provide
them with an opinion as to what, if any, potential
grounds and avenues for seeking post-conviction relief
remained available. If such grounds and avenues
existed, counsel agreed to prepare and file the requisite
pleadings necessary to initiate those remedies as
quickly as was reasonably possible, and to represent
him throughout the resolution of the post-conviction
proceedings.
....
Due to the fact that [Petitioner’s] family had only
amassed the funds to retain undersigned counsel with
only days remaining before the scheduled expiration of
the two-year time period for filing a new [R]ule 3.850
[motion], coupled with the fact that counsel believed
there was a strong factual and legal basis for seeking to
recall the mandate . . . . undersigned counsel filed an
emergency motion to recall the mandate [on December
24, 2008].
Id. at 12–13. Attorney Daley explained that his review of Petitioner’s file
revealed Petitioner had state postconviction remedies still available to him;
there was no mention of federal habeas remedies:
Upon reviewing the summary of the facts and
procedural history of the case . . . undersigned counsel
discovered numerous facts that supported no less than
four independent, meritorious IAC [ineffective
assistance of counsel] claims occurring prior to and
during trial, that were cognizable under [R]ule
3.850(a). Counsel also related his opinion to [Petitioner]
that a newly-filed 3.850 motion should not be deemed
successive, as the lower court had never reached the
merits of the IAC claim [raised in] the original motion.
Id. at 12.
26

Any steps Petitioner took in the trial court to undo or claw back the
unauthorized filings Attorney Axam submitted were done to preserve his state
postconviction remedies, not his federal habeas remedies. Additionally, when
Petitioner retained a new attorney—Daley—he did so to pursue state
postconviction remedies, not federal ones. See Ex. 47 at 3 (representing in his
reply supporting his petition to file a belated appeal that Petitioner hired
Attorney Daley just before the two-year-deadline to pursue state postconviction
relief); Ex. 52 at 4 (representing in a supplement to his petition to file a belated
appeal that he hired Attorney Daley to seek postconviction relief in the state
courts). While Petitioner certainly deserved better representation from his
lawyer, unfortunately he is not entitled to equitable tolling.
For the foregoing reasons, this action is untimely, and under the
circumstances, Petitioner does not meet the standard for equitable tolling. Nor
does he assert actual innocence as a gateway to avoid enforcement of the oneyear limitations period. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
Accordingly, it is ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 6) is DISMISSED with prejudice as

untimely.
2.

The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

27

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
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.13
DONE AND ORDERED at Jacksonville, Florida, this 10th day of
March, 2025.

Jax-6
c:
Takoya Criner
Counsel of Record

13 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, 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.
28