Tirado v. Secretary, Department of Corrections et al
Filing
32
ORDER -- The Petition for Writ of Habeas Corpus filed by Jose A. Tirado (Doc. 1) is DENIED, and this case is DISMISSED WITH PREJUDICE. Signed by Judge Roy B. Dalton, Jr. on 10/12/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSE A. TIRADO,
Petitioner,
v.
CASE NO. 6:16-cv-319-Orl-37KRS
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondent.
/
ORDER
This cause is before the Court on a Petition for Writ of Habeas Corpus (“Petition,”
Doc. 1) filed pursuant to 28 U.S.C. § 2254. Petitioner alleges three claims for relief. Id. The
Court previously determined that the Petition was untimely filed and an evidentiary
hearing was warranted on whether Petitioner is entitled to equitable tolling of the oneyear statute of limitations. 1 (Doc. 12).
On June 23, 2017, the Court conducted an evidentiary hearing and heard testimony
and argument regarding the equitable tolling issue. (Doc. 29). For the following reasons,
The Court’s May 5, 2017, Order contains a full discussion of the procedural
history and timeliness of the Petition, which will not be reiterated here. (Id.).
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the Court concludes that Petitioner is not entitled to equitable tolling of the one-year
statute of limitations. Consequently, the Petition is untimely filed.
I.
EVIDENCE ADDUCED AT EVIDENTIARY HEARING
At the evidentiary hearing, Petitioner testified that his mother hired Mr. Molansky
on approximately May 9, 2011, to file post-conviction motions on his behalf. Petitioner
was aware of the one year statute of limitations for filing a federal habeas petition.
According to Petitioner, when he hired Mr. Molansky, he informed counsel of his
concerns with regard to the statute of limitations for both his federal and state court postconviction remedies. Petitioner testified that in December 2011 or January 2012, he wrote
Mr. Molansky a letter and also had his mother call Mr. Molansky. Petitioner stated that
he asked Mr. Molanksy again about the time limits for filing specific documents in the
state and federal courts. Petitioner testified that counsel informed him that he was taking
care of the filings in a timely manner. Petitioner subsequently received a letter on January
22, 2013, indicating that counsel would not be filing any state court documents on
Petitioner’s behalf.
On cross-examination, Petitioner testified that Mr. Molansky had more contact
with his mother, and he only spoke to Mr. Molansky once on the telephone. Petitioner
stated that his mother called Mr. Molansky every one to two months, and Mr. Molansky
informed him or his mother that he was researching issues and waiting for state
documents. Petitioner also testified that he was aware Mr. Molansky was not retained to
file a federal habeas petition. However, Petitioner testified that Mr. Molansky assured
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him that the time for filing such a petition would be tolled. Petitioner admitted that none
of counsel’s letters referenced filing a federal habeas petition or the one-year limitations
period.
Elizabeth Tirado, Petitioner’s mother, testified that she paid Mr. Molansky to file
a Rule 3.850 post-conviction motion on her son’s behalf. Ms. Tirado called Mr. Molansky
to ask updates regarding the matter and to let him know that the limitations period for
filing a federal habeas was going to expire. Ms. Tirado corroborated Petitioner’s
testimony that she contacted Mr. Molansky every month or every two months until
August 2012, when she began to email counsel. Ms. Tirado testified that Mr. Molansky
never said anything about the statute of limitations and merely expressed that they were
“all right on the time frame.” On cross-examination, Ms. Tirado stated that none of
counsel’s emails or writings referenced the statute of limitations.
Mr. Molansky testified that he has been practicing law since July 17, 2000, and he
devotes ninety-five percent of his practice to criminal law. Mr. Molansky estimated that
he has handled approximately forty to fifty post-conviction cases and obtained relief in
twelve to fourteen of those cases. Mr. Molansky testified that the scope of the
representation in Petitioner’s case was to review the transcripts and appellate record and
conduct an investigation to determine whether there were grounds for filing a Rule 3.850
motion. During the course of his representation, Mr. Molansky sent Petitioner letters,
updated him on the status of the case, and sent him copies of correspondence. Mr.
Molansky testified that he never discussed the statute of limitations for filing a federal
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habeas petition. Mr. Molansky also explained that he never indicated that would file a
federal habeas petition. Furthermore, Mr. Molansky testified that neither Petitioner nor
Ms. Tirado raised the statute of limitations issue for a federal habeas petition.
II.
ANALYSIS
To overcome his untimely filing, Petitioner contends that he is entitled to equitable
tolling. (Doc. 10 at 2-3). Petitioner argues that Mr. Molansky was hired to file postconviction motions or pleadings, and instead he abandoned him. (Id. at 3-4). Petitioner
states that because counsel informed him that he would timely file documents on his
behalf and later failed to do so, he was unable to timely file his habeas petition. (Id. at 4).
In Holland v. Florida, 560 U.S. 631, 649 (2010), the Supreme Court of the United
States held that 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.” (quoting Pace v. Diguglielmo, 544 U.S. 408,
418 (2005)). “The diligence required for equitable tolling purposes is ‘reasonable
diligence,’. . . ‘not maximum feasible diligence. . . .’” Id. at 653 (internal quotations and
citations omitted). 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). “[T]he reasonable diligence and extraordinary
circumstance requirements are not blended factors; they are separate elements, both of
which must be met before there can be any equitable tolling.” Cadet v. State of Fla. Dep’t
of Corr., 853 F.3d 1216, 1225 (11th Cir. 2017) (citing Menominee Indian Tribe of Wisc. v. United
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States, 136 S. Ct. 750, 757 n.5 (2016)). Additionally, the Eleventh Circuit has stated that
“[t]he burden of proving circumstances that justify the application of the equitable tolling
doctrine rests squarely on the petitioner.” Lugo v. Sec’y, Fl. Dep’t of Corr., 750 F.3d 1198
(11th Cir. 2014) (citing San Martin, 633 F.3d at 1268).
In the instant case, Petitioner’s testimony conflicts with Mr. Molansky’s testimony.
Petitioner testified that he advised Mr. Molansky about the time limits for filing a federal
habeas petition, and Mr. Molansky repeatedly assured him that he would make sure that
the time for filing his federal habeas petition would be tolled. Ms. Tirado also testified
that Mr. Molansky stated that they were “all right on the time frame.” However, Ms.
Tirado admitted that none of the correspondence with Mr. Molansky referenced the
statute of limitations. In contrast, Mr. Molansky testified that he was hired to investigate
the potential for filing a Rule 3.850 motion and not a federal habeas petition. Mr.
Molansky also testified that Petitioner and Ms. Tirado never asked him any questions
with regards to the federal statute of limitations.
Having carefully considered the testimony of the witnesses at the evidentiary
hearing and the entire record in this case, the Court accepts Mr. Molanksy’s testimony as
credible and concludes that the testimony of Petitioner is not credible. Chavez-Garcia v.
United States, 255 F. App’x 375, 376 (11th Cir. 2007) (“’Where there is directly conflicting
testimony, the credibility determination should be left to the district judge.’”) (quoting
Green v. United States, 880 F.2d 1299, 1306 (11th Cir. 1989)). This credibility determination
is supported by the fact the record is devoid of any additional evidence supporting
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Petitioner’s allegations he asked counsel about the limitations period for filing a federal
habeas petition. Petitioner has not presented any documentary evidence to demonstrate
that counsel contemplated or advised him regarding the one-year statute of limitations
under § 2244(d).
Thus, Petitioner has not demonstrated that Mr. Molansky failed to communicate
with him or acted in such a manner that he was lulled into inaction or prevented from
timely filing the Petition. Petitioner was aware of the one-year statute of limitations and
admits that counsel made no agreement to file a federal petition on his behalf. Although
the better practice would have been for counsel to document in writing the scope of the
representation and address the limitations period for any post-conviction remedies, the
failure to do so amounts to negligence and not abandonment or egregious conduct. See
Cadet, 853 F.3d at 1234-36 (holding that more than negligence or gross negligence is
required to demonstrate extraordinary circumstances and that abandonment, or a
“renunciation or withdrawal, or a rejection or desertion of one’s responsibilities, a
walking away from a relationship” can be an extraordinary circumstance to justify
equitable tolling); Roper v. Dep’t of Corr., 434 F. App’x 786, 790 (11th Cir. 2011) (holding
that “[a]ffirmative
misrepresentations by counsel . . . can constitute extraordinary
circumstances that warrant equitable tolling).
Furthermore, even if counsel had negligently advised Petitioner regarding the
one-year statute of limitations, that error also does not warrant equitable tolling. A
misreading of § 2244(d) “is the kind of attorney error regarding the § 2244(d) statute of
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limitations provisions that . . . courts have held does not qualify as an extraordinary
circumstance warranting equitable tolling.” Cadet, 853 F.3d at 1235 (citation omitted).
Petitioner has not shown that an extraordinary circumstance prevented him from timely
filing his Petition. Therefore, Petitioner is not entitled to equitable tolling on this basis,
and his untimely Petition will not be excused.
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
This Court should grant an application for certificate of appealability only if the
Petitioner “makes a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2). To make such a showing “the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y Dep’t of Corr.,
568 F.3d 929, 934 (11th Cir. 2009). The Court concludes that Petitioner has not made the
requisite showing in these circumstances. Petitioner is not entitled to a certificate of
appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
The Petition for Writ of Habeas Corpus filed by Jose A. Tirado (Doc. 1) is
DENIED, and this case is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a certificate of appealability.
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3.
The Clerk of the Court is directed to enter judgment and close this case.
DONE AND ORDERED at Orlando, Florida, this 12th day of October, 2017.
Copies to:
OrlP-3 10/12
Counsel of Record
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