Cruz Colon v. Secretary, Department of Corrections, Et al

Filing 33

ORDER denying Petition for Writ of Habeas Corpus, dismissing case with prejudice, and denying a certificate of appealabiility. The Clerk of the Court is directed to enter judgment in favor of Respondents and to close this case. Signed by Judge Paul G. Byron on 6/20/2017. (AJM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RENE OSVALDO CRUZ COLON,
Petitioner,
v.

Case No: 6:16-cv-829-Orl-40TBS

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS
and ATTORNEY GENERAL, STATE OF
FLORIDA,
Respondents.

/
ORDER

This cause is before the Court on the Petition for Writ of Habeas Corpus (“Petition,”
Doc. 1) filed by Petitioner pursuant to 28 U.S.C. § 2254. Respondents filed a Response
to Petition (“Response,” Doc. 23) and a Supplemental Response to Petition (Doc. 30).
Petitioner filed a Reply (Doc. 28) and a Supplemental Reply (Doc. 32).
I.

PROCEDURAL BACKGROUND

Petitioner pled guilty to second degree murder, and the trial court sentenced him
on January 25, 2013. (Doc. 25-1 at 16-23). Petitioner did not file a direct appeal.
On October 22, 2013, Petitioner filed a motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850. (Id at 25-70).1 On January 6, 2014, the trial

1

The motion was not properly dated, and the Court is unable to determine the filing
date under the mailbox rule. See Adams v. United States, 173 F.3d 1339, 1341 (11th Cir.
1999) (under the "mailbox rule," a pro se prisoner's motion to vacate, set aside, or correct
sentence was filed on the date that he signed, executed, and delivered his petition to
prison authorities for mailing).

court dismissed the motion without prejudice with leave to file an amended Rule 3.850
motion. (Id. at 77-78). Petitioner filed an amended Rule 3.850 motion, which the trial
court denied on June 19, 2014. (Id. at 123-33). The Fifth District Court of Appeal (“Fifth
DCA”) affirmed per curiam on April 7, 2015, and the mandate issued on June 4, 2015.
(Id. at 236, 243).
II.

LEGAL STANDARD

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)
the date on which the judgment of conviction 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
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.
(2)
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 subsection.

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III.

ANALYSIS

In the present case, Petitioner did not file a direct appeal, and the time for seeking
such review expired 30 days after the judgment of conviction was entered. See Fla. R.
App. P. 9.110(b). Because the judgment of conviction was entered on January 25, 2013,
the time for seeking a direct appeal expired on February 25, 2013.2 Petitioner then had
until February 25, 2014, absent any tolling, to file a federal habeas petition regarding such
conviction.
Pursuant to section 2244(d)(2), the one year period is “tolled” for the time during
which a properly filed state postconviction or collateral proceeding is pending. When
Petitioner filed his first Rule 3.850 motion on October 22, 2013, 239 days of the one-year
period had run. Those proceedings concluded on June 4, 2015, when the Fifth DCA
issued mandate with regard to the appeal of the denial of his amended Rule 3.850 motion.
Thus, the one-year period expired 126 days later on October 8, 2015.
Although the Petition was actually filed with the District Court on March 21, 2016,3
the signature date on the Petition was September 15, 2015. (Doc. 1 at 21). Because of
the long period of time between when the Petition was signed and when the Petition was
actually filed with the District Court, the Court entered an Order (Doc. 24) on February 22,
2017, requiring Petitioner to submit evidence as to when the Petition was actually
delivered to the prison authorities for mailing.

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The one-year period actually expired on Sunday, February 24, 2013. The next
business day was Monday, February 25, 2013.
The Petition was initially filed in the United States District Court, Northern District
of Florida, Tallahassee Division on March 21, 2016, and later transferred to this Court.
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Petitioner filed a Reply and asserted that he did not read or write English and that
the Petition was prepared by a certified law clerk at the prison where he was incarcerated
and that time. (Doc. 28 at 1). Petitioner stated that it was his practice to first send any
legal pleadings “to his fiancé who is fluent in English” so that she could mail them to the
appropriate court. (Id.). As to the Petition, the prison law clerk “took a very long time in
forwarding the petition to her.” (Id. at 2). But he eventually did, and she then mailed the
Petition to the United States District Court, Northern District of Florida, Tallahassee
Division. (Id. at 2).
Petitioner submitted the affidavit of Tamahara Velez, his “girlfriend”, who indicated
that in September 2015, Petitioner was transferred from Liberty City Correctional
Institution (“LCC”) to Okeechobee Correctional Institution (“OCU”). (Id. at 4). When
Petitioner arrived at OCU, he advised her that James Parcher, a prison law clerk at LCC,
had been helping him with the Petition and requested that she write Parcher and have
him send Petitioner’s legal papers to OCU. (Id.). About five months later, Parcher sent
her the Petition with instructions to send it to the United States District Court, Northern
District of Florida, Tallahassee Division. (Id.). Velez then mailed the Petition to the United
States District Court, Northern District of Florida, Tallahassee Division in March 2016. (Id.
at 2, 4).
In the present case, the Petition was not sent to the prison authorities for mailing
to the District Court in September 2015.

Instead, after the Petition was signed by

Petitioner, it was sent by Parcher to Velez, who eventually mailed it to the District Court
in March 2016. Since the Petition was not mailed to the District Court by Petitioner from
his place of incarceration in September 2015, the mailbox rule is not applicable.
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Robertson v. Simpson, No. 5:05CV-239-R, 2011 WL 3880940, at *7 (W.D. Ky. Sept. 2,
2011) (the mailbox rule only applies if the petition is mailed by the prisoner from his place
of incarceration). Moreover, the “mailbox rule is inapplicable to the mailing of habeas
petitions to third parties, as intermediaries, who then mail them to the court for filing.”

Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).4
Because the Petition was not filed by October 8, 2015, it was untimely. The
Petition was filed more than one year after Petitioner's conviction became final, and
Petitioner has not pointed to any other valid statutory ground for extending the deadline
for filing his federal petition. Further, Petitioner has not satisfied the requirements for
equitable tolling, nor has he presented any arguments sufficient to support a claim of
actual innocence. Consequently, the Petition is time-barred by the AEDPA's one-year
statute of limitations and is dismissed.
Allegations not specifically addressed herein are without merit.
IV.

CERTIFICATE OF APPEALABILITY

This Court should grant an application for a 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 “[t]he petitioner must demonstrate that reasonable

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To the extent Petitioner argues that Parcher was in some manner ineffective, the
Court also rejects any argument that misinformation or ineffectiveness from a prison law
clerk provides a basis for equitable tolling of the one-year period of limitation. See Posada
v. Schomig, 64 F. Supp. 2d 790, 796 (C.D. Ill. 1999) (determining that the petitioner’s
claim that the prison law clerk did not provide adequate assistance did not establish a
basis for tolling).
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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). However, the petitioner need not show that
the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner fails to demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot
show that jurists of reason would find this Court’s procedural rulings debatable. Petitioner
fails to make a substantial showing of the denial of a constitutional right. Thus, the Court
will deny Petitioner a certificate of appealability.
V.

CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.

2.

This case is DISMISSED with prejudice.

3.

Petitioner is DENIED a Certificate of Appealability In this case.

4.

The Clerk of the Court is directed to enter judgment in favor of Respondents

and to close this case.
DONE and ORDERED in Orlando, Florida on June 20, 2017.

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Copies furnished to:
Counsel of Record
Unrepresented Party
OrlP-2 6/20

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