Barros v. Secretary, Department of Corrections et al

Filing 29

ORDER dismissing case and denying petition for writ of habeas corpus. The Clerk shall enter judgment accordingly and close this case. Signed by Judge Mary S. Scriven on 3/23/2009. (AJM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

HUGO QUENTAL BARROS Petitioner, v. SECRETARY, Department of Corrections, et al., Respondents. / Case No. 6:07-cv-484-MSS-DAB

ORDER Hugo Quental Barros ("Barros") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) and challenges the validity of his state convictions for two counts of attempted first-degree murder with a firearm and one count of burglary of a dwelling with an assault or battery with a firearm. Barros alleges three claims of ineffective assistance of trial counsel. Respondents have filed an amended response1 (Dkt. 13) and challenge the timeliness of Barros's petition. Background On March 21, 2002, Barros was charged by Information with two counts of attempted first-degree murder, one count of attempted felony murder with a weapon and one count of burglary of a dwelling with an assault or battery with a firearm. (Dkt. 8, Ex.

Respondents filed a response (Dkt. 6) to Barros's petition. By order entered on June 20, 2007 (Dkt. 9 ) , this Court, citing a potential error in the Respondents' calculation of the tim e lin e s s of Barros's petition, d ir e c te d the Respondents to file an am e n d e d response.

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I, pp. 38-40). On October 4, 2002, the prosecution filed an amended Information (Dkt. 8, Ex. I, pp. 72-77) adding two counts of aggravated battery causing great bodily harm. Barros proceeded to a jury trial on October 11-12, 2002. The state trial judge granted (Dkt. 8, Ex. I, p. 110) Barros's motion for judgment of acquittal on the attempted felony murder charge. The jury convicted Barros of the remaining five charges. (Dkt. 8, Ex. I, pp. 99-108). On October 14, 2002, the trial judge sentenced Barros to four concurrent terms of life imprisonment for the two attempted first-degree murder convictions and the two aggravated battery convictions and a concurrent term of fifteen years imprisonment on the burglary conviction. (Dkt. 8, Ex. I, pp. 116-121). Judgment was entered on October 14, 2002. (Dkt. 8, Ex. I, pp. 114-15). Barros timely filed his notice of direct appeal on October 15, 2002. (Dkt. 8, Ex. I, p. 130). On May 13, 2003, the state district court of appeal affirmed Barros's convictions and sentences in a per curiam decision without a written opinion. (Dkt. 8, Ex. VI). See Barros v. State, 846 So.2d 527 (Fla. 5th DCA 2003) [Table]. The mandate issued on May 30, 2003. (Dkt. 8, Ex. VII). Barros did not file a petition for writ of certiorari in the United States Supreme Court. (Dkt. 1, p. 3). On May 12, 20042, Barros, proceeding pro se, filed a motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.850. (Dkt. 8, Ex. VIII). Thereafter, Barros filed an amended Rule 3.850 motion (Dkt. 8, Ex. IX) on May 12, 2005, and a second amendment

For purposes of calculating the lim ita tio n s period under the AEDPA, the Court will give Barros the b e n e f it of the "m a ilb o x rule" and consider his § 2254 petition and docum e n ts related thereto as "filed"on the d a t e he signed and delivered them to prison authorities for m a ilin g . See Houston v. Lack, 487 U.S. 266, 108 S . C t . 2379, 101 L.Ed.2d 245 (1988); Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999). The court w ill also give Barros the benefit of this rule with respect to his state court filings when calculating the lim ita tio n s p e r io d under Section 2244(d).

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(Dkt. 8, Ex. X) on October 10, 2005.3 On June 16, 2006, the state court granted in part and denied in part (Dkt. 8, Ex. XIII) Barros's Rule 3.850 motion.4 On June 30, 2006, Barros filed a motion for rehearing (Dkt. 8, Ex. XIV). The state district court of appeal denied that motion on July 19, 2006. (Dkt. 8, Ex. XV). On August 7, 2006, Barros filed his appellate brief challenging the denial of the remaining grounds of his Rule 3.850 motion. (Dkt. 8, Ex. XVI). On November 7, 2006, the state district court of appeal affirmed the denial of the remaining post-conviction claims in a per curiam decision without a written opinion. (Dkt. 8, Ex. XVIII); see also Barros v. State, 944 So.2d 374 (Fla. 5th DCA 2006) [Table]. Barros's subsequent motion for rehearing and/or clarification (Dkt. 8, Ex. XIX) was denied on November 29, 2006. (Dkt. 89, Ex, XX). The mandate issued on December 18, 2006. Barros, proceeding pro se, signed and dated the instant Section 2254 petition on March 20, 2007. Upon review of the record, Barros's petition is time-barred and must be DENIED.

The state court considered Barros's original and am e n d e d petitions collectively, accepting his s e c o n d am e n d e d m o t io n "as a com p le t e and final collection" of his claim s . (Dkt. 8, Ex. XIII, p. 1). The state court granted relief on ground four of Barros's Rule 3.850 m o tio n and vacated his two c o n v ic tio n s for aggravated battery: G r o u n d Four: Defendant alleges counsel failed to file a m o t io n for discharge directed toward n e w charges contained in the am e n d e d inform a tio n filed by the State after the speedy trial p e r io d had expired. He notes that he was arrested on m a r c h 14, 2002, and the State filed a n [i]nform a tio n on March 19, 2002, charging him with two counts of attem p te d first-degree m u r d e r , one count of attem p t e d felony m u r d e r , and one count of burglary of a dwelling with a n assault or battery. The am e n d e d inform a tio n , which added two new charges of a g g r a v a te d battery causing great bodily harm , was not filed until October 4, 2002. T h e State acknowledges that this is a valid claim , and recom m e n d s an order striking the c o n v ic tio n s and sentences on [the aggravated battery counts]. It will be so ordered. D e f e n d a n t does not need to return to court, as this Order will be sufficient to m a k e the c o r r e c tio n . He does not seek resentencing on his other counts, nor does he have any legal b a s is to do so. ( D k t. 8, Ex. XIII, p. 5).
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Standard of Review Pursuant to 28 U.S.C. § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA") on April 24, 1996, a federal petition for writ of habeas corpus must be brought within one year from the latest of the following: (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. § 2244(d)(1)(A-D). Section 2244(d)(2) provides that periods of 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 Section 2244(d)(1). See Artuz v. Bennett, 531 U.S. 4 (2000). Absent demonstration of either the timeliness of a petition pursuant to Section 2244(d) or that the principle of equitable tolling applies in the particular case, an untimely petition must be dismissed by a federal district court. 28 U.S.C. § 2244(d)(1)(A)-(D). Because Barros's convictions were entered after the AEDPA was enacted, his petition is subject to the provisions thereof.

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Discussion The state district court of appeal affirmed Barros's convictions and sentences on May 13, 2003. Barros's convictions became final on August 11, 2003, when the 90-day period for filing a petition for writ of certiorari in the United States Supreme Court expired. See Sup. Ct. R. 13.3.5 See also Nix v. Sec'y, Dep't of Corr., 393 F.3d 1235, 1236-37 (11th Cir. 2004) (Florida prisoner's conviction "final" for AEDPA purposes when the 90-day period for seeking certiorari review in the Supreme Court expired). Barros had one year from that date, until August 11, 2004, to file a timely federal habeas corpus petition. The limitations period was tolled when Barros filed his Rule 3.850 motion for postconviction relief in state court on May 12, 2004. As of that date, 274 days of the limitation period had expired. The limitation period was tolled until December 18, 2006, when the state district court of appeal issued its mandate on the denial of Barros's Rule 3.850 motion. As of that date, 91 days of the limitation period remained (365 days minus 274 days elapsed and not tolled), thus giving Barros until March 19, 2007, to timely file his federal habeas petition. Barros filed the instant Section 2254 petition on March 20, 2007, one day after the expiration of the limitation period. Barros neither demonstrates that a State created impediment prevented him from filing a timely Section 2254 petition, nor has he shown that he could not have discovered the factual predicate of his federal claims prior to March 20,

"The tim e to file a petition for a writ of certiorari runs from the date of entry of the judgm e n t or order s o u g h t to be reviewed, and not from the issuance date of the m a n d a te (or its equivalent under local practice). B u t if a petition for rehearing is tim e ly filed in the lower court by any party, ... the tim e to file the petition for a w r it of certiorari for all parties ... runs from the date of the denial of rehearing." Sup. Ct. R. 13.3. Barros did n o t file a m o t io n for rehearing following the affirm a n c e of his convictions and sentences on direct appeal. (Dkt. 1 , p. 2).

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2007, through the exercise of due diligence.6

See 28 U.S.C. § 2244(d)(1)(B), (D).

Consequently, the instant petition is time-barred pursuant to the AEDPA's one-year limitation period unless Barros can demonstrate entitlement to equitable tolling. Equitable tolling is appropriate when a prisoner's petition is untimely "because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Johnson v. United States, 340 F.3d 1219, 1226 (11th Cir. 2003) (citing Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)). The Eleventh Circuit has emphasized that "equitable tolling applies only in truly extraordinary circumstances." Johnson v. United States, 340 F.3d at 1226 (citing Jones v. United States, 304 F.3d 1035, 1039-40 (11th Cir. 2002)). "The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner." Drew v. Dep't of Corr., 297 F.3d at 1286.

Barros erroneously contends that the one-year lim ita tio n period for tim e ly filing a federal habeas p e tit io n begins to run from the date of the issuance of the m a n d a te on the appeal of the denial of his Rule 3 . 8 5 0 m o t io n . See Sup. Ct. R. 13.3 In his reply (Dkt. 19), Barros argues that the decisions in Burton v. S te w a r t , 549 U.S. 147 (2007), and Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286 (11th Cir. 2007), control th e tim e lin e s s of his federal habeas petition. In Burton, the Suprem e Court concluded that the petitioner's lim ita tio n s period for filing a Section 2254 petition did not com m e n c e until both his conviction and sentence w e r e final by the conclusion of direct review or the expiration of the tim e for seeking such review. Burton v. S te w a r t , 549 U.S. at 799. In Ferreira, the Eleventh Circuit considered whether the petitioner's original c o n v ic tio n triggered the running of the AEDPA's statute of lim ita tio n s or whether the running of the statute was tr ig g e r e d by the petitioner's resentencing, when the habeas petition challenged only the original conviction. F e r r e ir a v. Sec'y, Dep't of Corr., 494 F.3d at 1292. Applying Burton, the Eleventh Circuit held that "AEDPA's s ta tu te of lim ita tio n s runs from the date the judgm e n t pursuant to which the petitioner is in custody becom e s f in a l, which is the date both the conviction and sentence the petitioner is serving becom e s final." Ferreira v. S e c 'y , Dep't of Corr., 494 F.3d at 1288 (em p h a s is original). Barros's reliance on Ferreira is m is p la c e d b e c a u s e Ferreira involved a corrected sentence. Barros is confined pursuant to the original sentences im p o s e d following his convictions for the two counts of attem p t e d first-degree m u r d e r and the burglary of a d w e llin g with an assault or battery with a firearm . Consequently, the lim ita tio n period for AEDPA purposes b e g a n to run when Barros's convictions becam e final on direct review upon the expiration of the 90-day period f o r seeking certiorari in the Suprem e Court, not when the m a n d a te affirm in g the denial of relief on his Rule 3 .8 5 0 m o tio n issued.

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In his reply to Respondent's response, Barros asserts that his federal habeas petition should be considered timely. Barros does not, however, contend that he is entitled to equitable tolling, nor does he contend that any extraordinary circumstances existed that caused him to calculate erroneously the expiration of the limitation period for timely filing a federal habeas petition through the exercise of due diligence. Thus, there is no basis upon which Barros is entitled to equitable tolling. Accordingly, the Court orders: That Barros's petition for a writ of habeas corpus (Dkt. 1) is DENIED with prejudice as time-barred. The clerk shall enter a judgment against Barros and close this action. ORDERED in Orlando, Florida, on this 23rd day of March 2009.

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