Beam v. Secretary, Department of Corrections et al

Filing 18

MEMORANDUM AND ORDER DISMISSING PETITION with prejudice. A Certificate of Appealability will NOT issue. Signed by Judge Paul A. Magnuson on 5/3/2016. (CLF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

Daniel M. Beam,

Case No. 5:13-cv-387
Petitioner,

v.

MEMORANDUM AND ORDER

Secretary, Department of Corrections,
and Florida Attorney General,
Respondents.
___________________________________________________________
This matter is before the Court on a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254. For the reasons that follow, the Petition is dismissed with prejudice.
BACKGROUND
In March 2007, a jury in Citrus County, Florida found Petitioner Daniel M. Beam
guilty of one count of sexual battery by threat of force or retaliation and one count of
incest. The trial court sentenced him to twenty years in prison for sexual battery and a
concurrent sentence of five years for incest, with credit for time served, followed by five
years of sex offender probation. Beam appealed his convictions. The Fifth District Court
of Appeal reversed the conviction and sentence for incest and affirmed the conviction and
sentence for sexual battery. Beam v. State, 1 So. 3d 331 (Fla. Dist. Ct. App. 2009). On
March 10, 2009, Beam’s conviction and sentence were vacated on the incest charge, but
affirmed as to the sexual battery charge. State v. Beam, No. 2006-CF-1111 (Fla. Cir. Ct.

Dec. 7, 2009). Beam did not appeal from his resentencing, and his conviction became
final on April 9, 2009.
On September 3, 2009, Beam filed his first motion for postconviction relief under
Fla. R. Crim. P. 3.850 raising eight claims of ineffective counsel and one claim of
cumulative error. The trial court summarily denied the motion on December 8, 2009. See
id. The Fifth District Court of Appeal per curiam affirmed the summary denial of the
motion. Beam v. State, 48 So. 3d 66 (Fla. Dist. Ct. App. 2010).
On December 6, 2010, Beam filed a petition for writ of habeas corpus with the
Florida Fifth District Court of Appeal again alleging eight claims of ineffective counsel.
This petition was also denied. Beam v. State, No. 10-4146 (Fla. Dist. Ct. App. May 2,
2011). Beam’s subsequent motion for rehearing was also denied. Beam v. State, No. 104146 (Fla. Dist. Ct. App. June 22, 2011). On December 2, 2010, while Beam’s state
habeas petition was pending, Beam filed a motion for postconviction relief/writ of habeas
corpus with the Fifth Judicial Circuit Court of Florida claiming ineffective assistance of
counsel, that the state knowingly used perjured testimony, a lack of subject matter
jurisdiction, and cumulative error. The court dismissed his motion without prejudice
eight days later, citing the pending action with the state court. State v. Beam, No. 104146 (Fla. Cir. Ct. Dec. 10, 2010).
Beam appealed the dismissal of his state petition for writ of habeas corpus. In
affirming the dismissal of Beam’s motion, the appellate court found the motion “to be
procedurally barred as an abusive, successive motion.” Beam v. State, 60 So. 3d 1096

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(Fla. Dist. Ct. App. 2011) (citing Owen v. Crosby, 854 So. 2d 182 (Fla. 2003);
Christopher v. State, 489 So. 2d 22 (Fla. 1986)).
On January 17, 2013, Beam filed a third motion for postconviction relief with the
trial court. In denying his motion, the trial judge specifically found that Beam did not
present new evidence. State v. Beam, No. 2006-CF-1111 (Fla. Cir. Ct. Jan. 28, 2013).
The Fifth District Court of Appeal denied Beam’s appeal on May 21, 2013, without
requiring a response from the State. Beam v. State, No. 13-501 (Fla. Dist Ct. App. May
21, 2013).
Beam now petitions for federal habeas relief under 28 U.S.C. § 2254, asserting
two primary grounds for relief; error by the trial court and ineffective assistance of
counsel.

Beam requests a retrial or, in the alternative, a full evidentiary hearing.

Respondent argues that Beam’s Petition is untimely because the one-year limitations
period elapsed in April 2010.
Beam filed a reply brief arguing that the limitations period should be equitably
tolled, making his Petition timely. Beam contends that the limitations period should be
tolled because of an alleged miscarriage of justice and his claim of newly discovered
evidence showing cause and prejudice due to ineffective assistance of counsel. In a later
filed addendum, Beam also insists that he was convicted of a non-existent crime.
DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2241 et seq., a federal court’s “review is greatly circumscribed and is highly
deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).
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Indeed, AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002) (citation omitted). 28 U.S.C. § 2254, which applies to persons in
custody pursuant to a state-court judgment, provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Further, § 2254 states that “a determination of a factual issue made
by a State court shall be presumed to be correct.” Id. § 2254(e)(1). The petitioner must
“rebut[] the presumption of correctness by clear and convincing evidence.” Id.
A.

Equitable Tolling
AEDPA states that “[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.”
28 U.S.C. § 2244(d)(1). “The time during which a properly filed application for State
post-conviction . . . review” is “pending shall not be counted” against the 1-year period.
28 U.S.C. § 2244(d)(2).
The Supreme Court has held that Ҥ 2244(d) is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled
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to equitable tolling only if he shows (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely
filing. Id. at 649.
Here, the State contends that the limitations period expired by April 2010. April
2010 is one year from the date Beam’s conviction and sentence became final. The State
concedes that Beam is entitled to tolling of the limitations period for any state collateral
petition or motion properly filed during that period.

Because Beam filed several

postconviction petitions, the limitations period expired on November 29, 2011. Beam
filed this Petition on August 12, 2013, nearly two years after the limitations period
expired.
A review of the record also reveals that Beam is not entitled to equitable tolling
under Holland v. Florida. Although Beam has diligently pursued relief in this matter, he
fails to present any extraordinary circumstance that prevented him from timely filing his
Petition with this Court. Rather, Beam argues that an alleged miscarriage of justice and
newly discovered evidence showing cause and prejudice due to ineffective assistance of
counsel warrant equitable tolling. Various Florida state courts thoroughly examined
these claims and found them to be without merit. E.g., Beam v. State, No. 10-4146 (Fla.
Dist. Ct. App. May 2, 2011); Beam v. State, 60 So. 3d 1096 (Fla. Dist. Ct. App. 2011);
State v. Beam, No. 2006-CF-1111 (Fla. Cir. Ct. Jan. 28, 2013). Accordingly, Beam’s
claims do not rise to the level of “extraordinary circumstances” as set forth in Holland v.
Florida, and the Petition is therefore untimely and must be dismissed.

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B.

Certificate of Appealability
Beam is required to secure a Certificate of Appealability before appealing the

dismissal of this habeas corpus action. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.
22(b)(1). This Court cannot grant a Certificate of Appealability unless the prisoner “has
made a substantial showing of the denial of a constitutional right.”

28 U.S.C.

§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The prisoner must
establish that the resolution of his constitutional claims “was debatable among jurists of
reason.” Lott v. Att’y Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010).
Beam argues that trial court error, newly-discovered evidence, and ineffective
assistance of counsel present a substantial showing of a denial of his constitutional rights.
Beam has not, however, come forward with any new evidence. Rather, he asserts the
same claim his counsel made during the initial trial, that the victim was eighteen years of
age when the incident occurred. In addition, a review of the record reveals that Beam has
not demonstrated that his claims are debatable or that they “deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327. Therefore, this Court will not grant a
Certificate of Appealability on any of Beam’s claims.
CONCLUSION
Beam’s Petition is untimely as it was not submitted within the limitation period.

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Accordingly, IT IS HEREBY ORDERED that:
1.

The Petition for Writ of Habeas Corpus is DISMISSED with prejudice;

2.

A Certificate of Appealability will NOT issue; and

3.

The Clerk shall enter judgment accordingly, terminate all remaining
deadlines as moot, and close the file.

Dated: May 3, 2016

s/Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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