Taylor v. Secretary, Department of Corrections et al

Filing 14

ORDER denying 1 Petition for writ of habeas corpus filed by Terrance Taylor, and this case is DISMISSED WITH PREJUDICE. The Clerk of the Court shall enter judgment for Respondents and thereafter close this case.Petitioner is DENIED a certificate of appealability. Signed by Judge Gregory A. Presnell on 1/4/2016. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TERRANCE TAYLOR,
Petitioner,
v.

CASE NO. 6:14-cv-1242-Orl-31TBS

SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254
(Doc. 1).

Thereafter, Respondents filed a response to the petition for writ of habeas

corpus in compliance with this Court’s instructions and with the Rules Governing Section
2254 Cases in the United States District Courts (Doc. 10). Petitioner filed a reply to the
response (Doc. 13).
Petitioner alleges five claims for relief in his habeas petition. However, as
discussed hereinafter, the Court finds the petition is untimely filed.
I.

PROCEDURAL HISTORY

Petitioner was charged with one count of sale of cocaine (Doc. 11-1 at 78). The State
filed a notice of intent to seek a habitual felony offender (“HFO”) sentence. Id. at 84. After
a jury trial, Petitioner was convicted as charged. Id. at 99. The trial court sentenced
Petitioner to a twenty-year term of imprisonment as an HFO. Id. at 121-24. Petitioner

appealed, and appellate counsel filed an Anders1 brief and moved to withdraw from the
case (Doc. 11-2 at 163-74). On February 2, 2010, the Fifth District Court of Appeal (“Fifth
DCA”) affirmed per curiam. Id. at 179.
On August 16, 2010,2 Petitioner file a motion for post-conviction relief pursuant
to Rule 3.850 of the Florida Rules of Criminal Procedure (Doc. Nos. 11-2 at 184-89; 11-3 at
1-8). Petitioner filed an amended Rule 3.850 motion on February 2, 2012 (Doc. 11-4 at 5568). After filing a supplemental Rule 3.850 motion on May 1, 2012, the trial court
summarily denied Petitioner’s motions on May 6, 2013. Id. at 73-90. Petitioner appealed,
and the Fifth DCA affirmed per curiam on August 20, 2013 (Doc. 11-5 at 28). Mandate
issued on September 13, 2013. Id. at 30. Petitioner filed his federal habeas petition on July
28, 2014 (Doc. 1).
II.

TIMELINESS OF THE PETITION

Pursuant to 28 U.S.C. ' 2244:
(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)
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the date on which the judgment became final by the

Anders v. California, 386 U.S. 738 (1967).

This is the filing date under the “mailbox rule.” See Thompson v. State, 761 So. 2d
324, 326 (Fla. 2000) (“[W]e 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 the prison or jail officials for mailing on a particular date, if that the [sic]
pleading would be timely filed if it had been received and file-stamped by the Court on
that particular date.”).
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consideration of direct review or the expiration of the time for
seeking such review;
(B)

(C)

the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or

(D)

(2)

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;

the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.

The time during which a properly filed application for State postconviction 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 section.

28 U.S.C. ' 2244(d).
In the present case, the state appellate court entered its per curiam affirmance on
February 2, 2010. Petitioner’s conviction became final ninety days later, or on May 3, 2010.
See Sup. Ct. R. 13(3). Thus, under ' 2244(d)(1)(A), Petitioner had through May 3, 2011,
absent any tolling, to file a federal habeas petition.
Under ' 2244(d)(2), the one-year period would be tolled during the pendency of
any “properly filed” state post-conviction proceedings. Petitioner filed his Rule 3.850
motion on August 16, 2010. A total of 96 days of the one-year period elapsed before
Petitioner filed this motion. The limitations period was tolled from August 16, 2010,
through September 13, 2013, the date the mandate issued on appeal. Petitioner had 269
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days remaining of the limitations period, or until June 9, 2014, to file his federal habeas
petition. The petition, filed on July 28, 2014, is untimely filed.
Petitioner argues that one-year period should be tolled pursuant to Martinez v.
Ryan, 132 S. Ct. 1309 (2012) (Doc. 13 at 3). Petitioner’s reliance on Martinez is misplaced.
Martinez considered “whether a federal habeas court may excuse a procedural default of
an ineffective-assistance claim when the claim was not properly presented in state court
due to an attorney’s errors in an initial-review collateral proceeding.” Id. at 1313. The
Eleventh Circuit has held that Martinez does not provide a basis for equitably tolling the
AEDPA’s statute of limitations. See Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d 940, 946
(11th. Cir. 2014); Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014). Consequently,
Petitioner is not entitled to equitable tolling on this basis. Petitioner’s federal habeas
petition is untimely filed and must be denied.
Any of Petitioner’s allegations that attempt to excuse his failure to file the instant
petition within the one-year limitations period and that are not specifically addressed
herein have been found to be without merit.
III.

CERTIFICATE OF APPEALABILITY

A prisoner seeking to appeal a district court's final order denying his petition for
writ of habeas corpus has no absolute entitlement to appeal but must obtain a certificate
of appealability (“COA”).

28 U.S.C. ' 2253(c)(1); Harbison v. Bell, 556 U.S. 180 (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
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“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)
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 failed to make
such a showing. The Court will deny Petitioner a certificate of appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus filed by Terrance Taylor (Doc. 1) is

DENIED, and this case is DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment for Respondents and thereafter

close this case.
3.

Petitioner is DENIED a certificate of appealability.

DONE AND ORDERED in Orlando, Florida, this 4th day of January, 2016.

Copies to:
OrlP-3 1/4
Counsel of Record
Terrance Taylor

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