Root v. Secretary, Department of Corrections et al

Filing 13

OPINION AND ORDER re: 1 Petition for writ of habeas corpus is dismissed with prejudice as untimely. The Clerk of Court shall enter judgment dismissing this case with prejudice and close this case. Petitioner is not entitled to a certificate of appealability and not entitled to appeal in forma pauperis. Signed by Judge John E. Steele on 4/24/2012. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ERNEST ROOT,
Petitioner,
vs.

Case No.

5:10-cv-521-Oc-29SPC

SEC'Y, FLA. DE'PT OF CORRECTIONS
AND ATT'Y GENERAL,
Respondents.
_________________________________
OPINION AND ORDER
Petitioner Ernest Root (“Petitioner” or “Root”), proceeding
pro se, initiated this action by filing a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #1, "Petition") on
October 1, 2010.1

Pursuant to the Court's Order to respond and

show cause why the Petition should not be granted (Doc. #6),
Respondent filed a limited response seeking dismissal of the

The Petition (Doc. #1) was filed in this Court on October 7,
2010, but the Court deems a petition “filed” by an inmate when it
is delivered to prison authorities for mailing.
Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir. 2001). Absent
evidence to the contrary, the date of filing is assumed to be the
date the inmate signed the document. Id. If applicable, the Court
also gives a petitioner the benefit of the state’s mailbox rule
with respect to his state court filings when calculating the oneyear limitations period under 28 U.S.C. § 2244(d). Under Florida’s
inmate “mailbox rule,” Florida courts “will presume that a legal
document submitted by an inmate is timely filed if it contains a
certificate of service showing that the pleading was placed in the
hands of prison or jail officials for mailing on a particular date,
if . . . the pleading would be timely filed if it had been received
and file-stamped by the Court on that particular date.” Thompson
v. State, 761 So. 2d 324, 326 (Fla. 2000).
1

Petition on the grounds that the Petition is time barred pursuant
to 28 U.S.C. § 2244(d).2

See Respondent’s Response to Petition for

Writ of Habeas Corpus (Doc. #7, Response) at 1. Respondent submits
exhibits (Exhs. A-D) in support of the Response.

See Index to

On April 24, 1996, the President signed into law the
Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter
AEDPA). This law amended 28 U.S.C. § 2244 by adding the following
new subsection:
2

(d)(1) A 1-year period of limitation shall
application for a writ of habeas corpus by
custody pursuant to the judgment of a State
limitation period shall run from the latest

apply to an
a person in
court. The
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.
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Appendix (Doc. #7 at 8).

Petitioner filed a Reply to Respondent’s

Response (Doc. #10, Reply).

This matter is ripe for review.

Root challenges his September 11, 2006,3 plea-based conviction
for Burglary of a Dwelling With a Firearm and Robbery With a
Firearm entered by the Fifth Circuit Court, Lake County, Florida
for which Root was sentenced to 165.75 months imprisonment, with
credit for time served.

Exh. A at 99-104, 189, 190-266.4

not file a direct appeal.

Root did

Consequently, his state conviction

became final on October 11, 2006 See Bridges v. Johnson, 284 F.3d
1201, 1202 (11th Cir. 2002); Fla. R. App. P. 9.110(b)(affording a
petitioner thirty days within which to file an appeal).

Because

this date is after April 24, 1996, the effective date of the AEDPA,
Petitioner’s one-year time period for filing a federal habeas
petition challenging his conviction expired on October 11, 2007.5
Consequently, the Petition filed in this Court would be untimely
unless

Petitioner

availed

himself

of

one

of

the

statutory

provisions which extends or tolls the federal time period.

The Court gives Petitioner the benefit of the filing date of
his nolo contendere plea (September 11, 2006), as opposed to the
date that Petitioner entered his plea in open court (September 8,
2006.
3

Root had been charged with one count of burglary of a dwelling
while armed, one count of robbery with a firearm, and one count of
first degree murder. Pursuant to the negotiated plea agreement,
Root pled nolo contendere to the burglary and robbery counts and
the State nol prossed the murder count. Exh. A at 178-181, 261.
4

Applying “anniversary date of the triggering event.”
v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008).
5

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Downs

Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled
during the time that “a properly filed application for state postconviction or other collateral review with respect to the pertinent
Here, 15 days of the federal

judgment or claim is pending.”

limitations period elapsed before Petitioner filed his first state
post-conviction motion - - a motion pursuant to Florida Rule of
Criminal Procedure 3.850, filed on October 26, 2006.

Exh. A at

110. The post-conviction trial court, after briefing by the State,
entered a final order summarily denying the Rule 3.850 motion on
November 30, 2006.

Exh. A-132.

The appellate court per curiam

affirmed the post-conviction court’s denial of Root’s Rule 3.850
motion on February 27, 2007.

Root v. State, 950 So.2d 422 (Fla.

5th DCA 2007); Exh A at 167.

Mandate issued on March 16, 2007.

Exh. A at 168.
On March 7, 2007, prior to mandate issuing, Root filed a
motion for production seeking portions of the trial transcript and
record.
motion.

Exh. A at 162.
Exh. A at 169.

The post-conviction court denied the
Root appealed, but failed to respond to

the appellate court’s show cause order and the appeal was dismissed
on September 21, 2007.

Exhs. A at 171, B at 1-2.

Affording Root the benefit of the September 21, 2007 date for
restarting the federal limitations period, Root permitted only 13
days to elapse before he filed a second Rule 3.850 motion on
October 4, 2007.

Exh. C at 1.

After response by the State, the
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post-conviction court summarily denied the motion.
Root’s motion for rehearing was denied.

Exh. C at 113.

Exh. C at 215, 218.

The

State appellate court per curiam affirmed the denial of Root’s
second Rule 3.850 motion on April 15, 2008.
Mandate issued on May 19, 2008.

Exh. C at 239.

Exh. C at 234.
At this point,

Root had 337 days (365 days less 15 days, less 13 days) remaining
on his federal limitations period - - or until April 21, 2009, to
timely file his federal petition.
Root filed a third Rule 3.850 motion on April 19, 2010.
D at 1.
Rule

The post-conviction court summarily denied Root’s third

3.850

insufficient.
denied.

Exh.

motion

as

untimely,

Exh. D at 28.

Exh. D at 35, 41.

successive

and

facially

Root’s motion for a rehearing was

On September 22, 2010, the appellate

court dismissed Root’s appeal for lack of jurisdiction, after
affording Root the opportunity to show cause whether the appeal was
timely filed, based upon the apparent untimely filing of Root’s
motion fo rehearing.
Even if the Court deems the third Rule 3.850 motion properly
filed, Root garners no additional tolling for his third Rule 3.850
motion, because the federal limitations had already expired by the
time Root filed this motion.

Once the AEDPA’s limitations period

expires, it cannot be reinitiated. Tinker v. Moore, 255 F.3d 1331,
1333 (11th Cir. 2001), cert. denied, 534 U.S. 1144 (2002)); Webster
v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). More specifically,

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any post-conviction filings by Petitioner after April 21, 2009, the
date Root’s federal limitations period expired, “cannot toll that
period because there is no period remaining to be tolled.”

Tinker

255 F.3d at 1333.
The

Supreme

Court

recognizes

that

AEDPA's

statutory

limitations period set forth in "§ 2244(d) is subject to equitable
tolling in appropriate cases."

Holland v. Florida, ___ U.S. ___,

130 S. Ct. 2549, 2560 (2010).

However, a petitioner is entitled

to
been

equitable tolling only if he can demonstrate that: (1) he has
pursuing

his

rights

diligently,

and

(2)

that

some

extraordinary circumstance stood in his way. Id. at 2562 (internal
quotations and citations omitted).

"The diligence required for

equitable tolling purposes is 'reasonable diligence,' not maximum
feasible diligence."

Id. at 2565.

Further, to demonstrate the

"extraordinary circumstance" prong, a petitioner "must show a
causal connection between the alleged extraordinary circumstances
and the late filing of the petition."

San Martin v. McNeil, 633

F.3d. 1257, 1267 (11th Cir. 2011). The petitioner bears the burden
of establishing that equitable tolling applies. Drew v. Dep’t of
Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).
Petitioner appears to concede that the Petition is untimely.
Reply at 1-2 (stating “Petitioner does not argue petition was
untimely. . . .”).

However, Petitioner offers no explanation or

argument as to why he should be entitled to equitable tolling.

-6-

See

generally Reply.

Instead, Petitioner addresses the merits of the

Petition and pleads for “[f]airness and justice.”

Id. at 2.

Based upon the foregoing, the Court finds the Petition is
untimely and finds Petitioner has not demonstrated a justifiable
reason why the dictates of the one-year limitations period should
not be imposed upon him.

Therefore, the Court will dismiss this

case with prejudice pursuant to 28 U.S.C. § 2244(d).
Therefore, it is now
ORDERED and ADJUDGED:
The Petition (Doc. #1) is DISMISSED with prejudice as

1.
untimely.
2.

The Clerk of the Court shall enter judgment dismissing

this case with prejudice and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability.

A prisoner seeking to appeal a

district court's final order denying his petition writ of habeas
has no absolute entitlement to appeal but must obtain a certificate
of appealability ("COA").

28 U.S.C. § 2253(c)(1); Harbison v.

Bell, ___ U.S. ___, 129 Ct. 1481, 1485 (2009).

“A [COA] may issue

. . . only if the applicant has made a substantial showing of the
denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

To

make such a showing, petitioner “must demonstrate that reasonable
jurists

would

find

the

district
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court’s

assessment

of

the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542
U.S. 274, 282 (2004) or, that “the issues presented were adequate
to

deserve

encouragement

to

proceed

further,”

Miller-El

v.

Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Fort Myers, Florida, on this
of April, 2012.

SA: hmk
Copies: All Parties of Record

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24th

day