Powell v. Secretary, Department of Corrections et al

Filing 19

ORDER: Powell's petition is DISMISSED as time-barred. The CLERK is directed to enter judgment against Powell and to CLOSE this case. A certificate of appealability and leave to appeal in forma pauperis are DENIED. Signed by Judge Virginia M. Hernandez Covington on 8/2/2022. (MLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
STEVEN E. POWELL,
Petitioner,
v.

Case No. 5:19-cv-362-VMC-PRL

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
________________________________/
ORDER
Steven E. Powell, a Florida prisoner, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 1.) Respondent opposes the petition as timebarred. (Doc. 11.) Having considered the petition, the response, and Powell’s reply
(Doc. 12), the Court ORDERS that the petition is DISMISSED as time-barred.
Procedural History
Powell pleaded no contest to fleeing or attempting to elude (count four) and
battery (count six.) He pleaded guilty to charges of driving while license suspended or
revoked (count five), violation of a domestic violence injunction (count seven), and
resisting or obstructing an officer without violence (count eight). 1 (Doc. 11-1, Exs. 4,
5.) The state trial court sentenced him to 15 years in prison for fleeing or attempting to

At a later trial, Powell was acquitted of counts one through three, which were counts of
armed kidnapping, sexual battery with threats to use force or violence, and strongarm robbery.
(Doc. 11, p. 2 n.1; Doc. 11-1, Ex. 3.)
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elude (count four) as a habitual felony offender, and to a consecutive term of five years
in prison for driving while license suspended or revoked (count five). (Doc. 11-1, Ex.
6; Doc. 11-3, Ex. 58, pp. 319-21.) The state trial court sentenced him to time served on
the remaining counts (counts six, seven, and eight). (Id.) The state appellate court per
curiam affirmed the convictions and sentences. (Doc. 11-1, Ex. 23.)
Powell filed a motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Doc. 11-1, Ex. 27.) The state court granted relief only to the extent
that it vacated the habitual felony offender designation on count four. (Doc. 11-1, Ex.
33.) The state court denied relief in all other respects. (Id.) The state appellate court per
curiam affirmed. (Doc. 11-1, Ex. 38.)
Powell filed a successive Rule 3.850 motion for postconviction relief, followed
by amended successive motions. (Doc. 11-1, Ex. 42; Doc. 11-2, Ex. 43; Doc. 11-3, Ex.
47.) The state postconviction court denied the successive motion, as amended. (Doc.
11-3, Ex. 49.) The state appellate court per curiam affirmed. (Doc. 11-3, Ex. 54.)
Powell’s second successive Rule 3.850 motion was also denied. (Doc. 11-3, Exs. 56,
57.)
Untimeliness Of Powell’s Federal Habeas Petition
I.

Introduction
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Powell’s habeas petition is subject to the one-year statute of limitations set out in 28
U.S.C. § 2244(d)(1). A habeas petition must be filed within one year of “the date on
which the judgment became final by the conclusion of direct review or the expiration
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of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The one-year
limitations period is tolled while “a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is pending[.]”
28 U.S.C. § 2244(d)(2).
II.

Untimeliness Under § 2244(d)(1)
After the state appellate court affirmed Powell’s convictions and sentences, it

denied his motion for rehearing on April 17, 2014. (Doc. 11-1, Ex. 25.) Therefore,
Powell’s judgment became final on July 16, 2014, upon expiration of the 90-day period
to petition the Supreme Court of the United States for a writ of certiorari. See Bond v.
Moore, 309 F.3d 770, 774 (11th Cir. 2002). Powell’s AEDPA limitations period began
to run the next day, July 17, 2014. It ran for 12 days before Powell filed his first Rule
3.850 motion for postconviction relief on July 29, 2014. (Doc. 11-1, Ex. 27.) Powell’s
motion for postconviction relief was pending until the state appellate court’s mandate
issued on November 22, 2016. (Doc. 11-1, Ex. 41.) While the state postconviction
court vacated the habitual felony offender designation on count four, as discussed
below, this action did not result in a new judgment that re-started the AEDPA
limitations period.
After the state appellate court’s mandate issued, Powell had 353 days remaining
on his AEDPA limitations period. Therefore, he had until November 13, 2017, 2 in the

The last day of the AEDPA limitations period, November 11, 2017, was a Saturday.
Therefore, Powell had until Monday, November 13, 2017, to file his § 2254 habeas petition.
See Fed. R. Civ. P. 6(a)(1)(C).
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absence of any state court tolling applications, to file his § 2254 petition. Powell did
not file any other tolling applications before November 13, 2017. As discussed below,
Powell’s successive Rule 3.850 motion, filed on October 30, 2017, was not “properly
filed” and therefore was not a tolling application under § 2244(d)(2).
Powell did not file his federal habeas petition until July 30, 2019, after
expiration of the AEDPA limitations period. Accordingly, the petition is untimely
under § 2244(d)(1)(A).
III.

Removal Of HFO Designation
In ruling on Powell’s first Rule 3.850 motion for postconviction relief, the state

court vacated the habitual felony offender (“HFO”) designation on count four, fleeing
or attempting to elude. This action did not result in a new judgment that re-started the
AEDPA limitations period.
For purposes of the AEDPA limitations period, “there is one judgment,
comprised of both the sentence and conviction.” Insignares v. Sec’y, Fla. Dep’t of Corr.,
755 F.3d 1273, 1281 (11th Cir. 2014) (citing Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d
1286, 1292 (11th Cir. 2007)). “[A] state prisoner’s AEDPA limitations period does not
begin to run until both his conviction and sentence become final[.]” Thompson v. Fla.
Dep’t of Corr., 606 F. App’x 495, 501 (11th Cir. 2015). A change to a sentence after its
imposition can result in a new judgment that resets the AEDPA limitations period. See
Insignares, 755 F.3d at 1281 (“The limitations provisions of AEDPA ‘are specifically
focused on the judgment which holds the petitioner in confinement,’ and resentencing

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results in a new judgment that restarts the statute of limitations.”) (quoting Ferreira,
494 F.3d at 1292-93).
In determining whether a new judgment has been entered, “[t]he relevant
question is not the magnitude of the change, but the issuance of a new judgment
authorizing the prisoner’s confinement.” Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d
1321, 1326-27 (11th Cir. 2017) (emphasis in original).
Here, the postconviction court’s vacating of the HFO designation on count four
did not result in a new judgment authorizing Powell’s confinement. The
postconviction court vacated the HFO designation because Powell was not informed
prior to entering his plea that the HFO designation might affect the possibility of early
release. (Doc. 11-1, Ex. 33, p. 6.) The postconviction court remedied this matter by
simply directing the Clerk to vacate the HFO designation from the existing judgment.
(Id., p. 8.) The postconviction court stated the “remainder of [Powell’s] sentence shall
remain unchanged.” (Id.) The act of vacating the HFO designation did not require
vacating the sentence, give the Department of Corrections any authority over Powell’s
custody, or change the length of his 15-year sentence. (Doc. 11-3, Ex. 49, doc. pp. 214221.) Accordingly, the removal of the HFO designation did not result in a new
judgment and therefore has no effect on the timeliness analysis.
IV.

Successive Postconviction Motion
Powell filed his successive Rule 3.850 motion on October 30, 2017, prior to the

expiration of his AEDPA limitations period. However, the successive motion was not
a “properly filed” tolling application because it was untimely. The Supreme Court has
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explained that a state court application for collateral review is properly filed “when its
delivery and acceptance are in compliance with the applicable laws and rules
governing filings” including “the time limits upon its delivery[.]” Artuz v. Bennett, 531
U.S. 4, 8 (2000). The Supreme Court has “expressly held that a state court motion for
post-conviction relief cannot be considered ‘properly filed’ for tolling under Section
2244(d)(2) if the motion was untimely under state law.” Jones v. Sec’y, Fla. Dep’t of Corr.,
906 F.3d 1339, 1342 (11th Cir. 2018) (citing Pace v. DiGuglielmo, 544 U.S. 408 (2005)).
Under Rule 3.850(b), a petitioner must move for postconviction relief in state
court within two years of the date his state court judgment becomes final. An exception
to the two-year time limit applies when the motion “alleges that . . . the facts on which
the claim is predicated were unknown to the movant or the movant’s attorney and
could not have been ascertained by the exercise of due diligence, and the claim is made
within 2 years of the time the new facts were or could have been discovered with the
exercise of due diligence[.]” Fla. R. Crim. P. 3.850(b)(1).
Powell’s successive postconviction motion was filed under Rule 3.850(b)(1),
and he alleged entitlement to relief based on newly discovered evidence and as
necessary to correct a fundamental miscarriage of justice. (Doc. 11-3, Ex. 47.) The
state postconviction court recognized that Powell “claims he is entitled to relief based
on newly discovered evidence and manifest injustice” but denied his motion. (Doc.
11-3, Ex. 49, p. 3.) By doing so, the state court determined that no basis existed to
consider the motion timely under the exception to the time limitation set out in Rule
3.850(b)(1). The state court found that Powell’s claim that he was entitled to
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resentencing based on the removal of the HFO designation on count four was
successive and was “not newly discovered” because he already raised it in his first
postconviction motion and on appeal. (Id., p. 4.) The court also found Powell’s related
claim of entitlement to resentencing based on an erroneous scoresheet to be refuted by
the record made at the time of sentencing, which showed a proper scoresheet. (Id., pp.
5-6.) The state court also found that Powell’s second claim, asserting that his plea was
involuntary, “has been previously raised and ruled upon numerous times. Therefore,
this issue is successive and barred by the law of the case doctrine.” (Id., p. 5.) Further,
the court rejected Powell’s claims to the extent he attempted to characterize
entitlement to relief as necessary to correct a manifest injustice. (Id., p. 5.)
The state postconviction court determined that no relief was warranted on
Powell’s motion, which was filed asserting application of Rule 3.850(b)(1)’s exception
to the postconviction time limitation. It is therefore apparent that the motion was
rejected as untimely, even though the order did not specifically make a timeliness
finding. The Eleventh Circuit Court of Appeals’ decision in Jones, 906 F.3d 1339, is
instructive. The petitioner in Jones also filed a state postconviction motion claiming
application of the exception in Rule 3.850(b)(1). While the state postconviction court
in Jones’s case did not expressly find the motion untimely, it rejected Jones’s newly
discovered evidence claim and stated that Jones’s allegations “d[id] not meet the
parameters of newly discovered evidence.” Id at 1345. The Eleventh Circuit held that
the only “reasonable and logical way to read” the state court’s order was to conclude
that the state court found Jones’s motion untimely, and that a state court is not
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required to use “[m]agic words” or make a “clear and unambiguous ruling” when
deciding the timeliness of a postconviction motion. Id. at 1346, 1349.
Therefore, Jones stated, “the state court ruled that the Rule 3.850 Motion was
untimely, and [a federal court is] required to defer to that ruling. That necessarily
means that the motion wasn’t ‘properly filed,’ and thus it didn’t toll AEDPA’s oneyear statute of limitations.” Id. at 1350 (citations omitted). “[A] state post-conviction
motion is not, and cannot ever be, ‘properly filed’ if it was rejected by the state court
as untimely.” Id. at 1352 (citing Pace, 544 U.S. 408).
Because

the

state postconviction

court

rejected

Powell’s

successive

postconviction motion, brought under Rule 3.850(b)(1)’s exception to the time
limitation for filing postconviction motions in Florida, it is apparent that the court
denied the motion as untimely. This untimely motion therefore was not “properly
filed,” and had no tolling effect on Powell’s AEDPA limitations period.
V.

Equitable Tolling
Powell does not establish that he is entitled to equitable tolling. Section 2244(d)

“is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631,
645 (2010). A petitioner is entitled 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” of his § 2254 petition. Id. at 649 (quoting
Pace, 544 U.S. at 418). “The burden of proving circumstances that justify the
application of the equitable tolling doctrine rests squarely on the petitioner.” San

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Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011). A petitioner must “show a
causal connection between the alleged extraordinary circumstances and the late filing
of the petition.” Id. at 1267. Because this is a “difficult burden” to meet, the Eleventh
Circuit “has rejected most claims for equitable tolling.” Diaz v. Sec’y, Dep’t of Corr., 362
F.3d 698, 701 (11th Cir. 2004); see also Johnson v. United States, 340 F.3d 1219, 1226
(11th Cir. 2003) (“[E]quitable tolling applies only in truly extraordinary
circumstances.”); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (“Equitable
tolling is an extraordinary remedy which is typically applied sparingly.”).
Powell appears to argue in his reply that he is entitled to equitable tolling for the
period during which his successive Rule 3.850 postconviction motion was pending
because the motion was filed by an attorney who told him that the motion had merit.
Powell fails to show that his attorney’s evaluation of the motion’s chance of success
forms a basis for equitable tolling. See e.g., Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216,
1236-37 (11th Cir. 2017) (noting that certain conduct by attorneys, including
abandonment, bad faith, dishonesty, divided loyalty, and mental impairment, might
be bases for equitable tolling but holding that an attorney’s negligence or
misunderstanding of the law are not bases for equitable tolling). Powell does not
demonstrate that equitable tolling is warranted in this case.
VI.

Actual Innocence
Powell fails to demonstrate his actual innocence so as to allow review of his

untimely petition. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (holding that
“actual innocence, if proved, serves as a gateway through which a petitioner may pass”
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when the impediment to review of his claims is “expiration of the statute of
limitations”). “[T]enable actual-innocence gateway pleas are rare,” however, and this
exception “applies to a severely confined category: cases in which new evidence shows
it is more likely than not that no reasonable would have convicted [the petitioner]” in
light of the new evidence. Id. at 386, 394-95 (quoting Schlup v. Delo, 513 U.S. 298, 329
(1995)) (internal quotation marks omitted). This exception requires showing a
petitioner’s “factual innocence, not mere legal insufficiency.” Bousley v. United States,
523 U.S. 614, 623 (1998).
In his reply, Powell asserts that “[i]f the Court were to assign an attorney and
allow discovery to be taken the facts will show I am innocent.” (Doc. 12, p. 8.) Powell’s
vague assertion of innocence, without more, is insufficient to demonstrate applicability
of the actual innocence exception to the limitations period. 3
Accordingly, it is ORDERED that Powell’s petition (Doc. 1) is DISMISSED
as time-barred. The CLERK is directed to enter judgment against Powell and to
CLOSE this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
It is further ORDERED that Powell is not entitled to a certificate of
appealability (“COA”). A prisoner seeking a writ of habeas corpus has no absolute

Powell did not file a motion for appointment of an attorney for § 2254 proceedings or a
motion requesting leave of Court to conduct discovery. As Powell has not established that
discovery or appointment of counsel is warranted, the requests contained within his reply are
denied.
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entitlement to appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). A
COA must first issue. Id. To obtain a COA, Powell must show that reasonable jurists
would find debatable both (1) the merits of the underlying claims and (2) the
procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 484 (2000). Because the petition is time-barred, Powell cannot satisfy the
second prong of the Slack test. Since Powell is not entitled to a COA, he is not entitled
to appeal in forma pauperis.
ORDERED in Ocala, Florida, on August 2, 2022.

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