Lumadue v. Secretary, Department of Corrections, et al
Filing
10
ORDER dismissing case Signed by Judge Roy B. Dalton, Jr. on 9/26/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KELLY M. LUMADUE,
Petitioner,
v.
Case No: 6:16-cv-1574-Orl-37TBS
SECRETARY, DEPARTMENT OF
CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents.
/
ORDER
This case is before the Court on Petitioner Kelly M. Lumadue’s Petition for Writ of
Habeas Corpus (“Petition,” Doc. 1) filed pursuant to 28 U.S.C. § 2254. Respondents filed
a Response to the Petition (“Response to Petition,” Doc. 6) in compliance with this Court’s
instructions. Petitioner filed a Reply to the Response to the Petition (“Reply,” Doc. 9).
Petitioner asserts fifteen grounds for relief in the Petition. For the following
reasons, the Petition is denied as untimely.
I.
PROCEDURAL HISTORY
Petitioner was charged with two counts of sexual battery of a victim less than
twelve years of age (Counts One and Two). (Doc. 7-1 at 5-6.) A jury found Petitioner guilty
as charged. (Id. at 11-12.) The state court sentenced Petitioner to concurrent terms of life
in prison. (Id. at 18.) Petitioner appealed her convictions. On December 28, 2010, the Fifth
District Court of Appeal of Florida (“Fifth DCA”) affirmed per curiam. (Id. at 132.)
Mandate issued on January 19, 2011. (Id. at 134.)
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On January 11, 2013, Petitioner filed a motion for post-conviction relief pursuant
to Rule 3.850 of the Florida Rules of Criminal Procedure. 1 (Id. at 136-66.) The state court
denied some of Petitioner’s claims and ordered an evidentiary hearing on one claim.
(Doc. 7-2 at 2-9, 11.) The state court denied the remaining claim after the hearing. (Id. at
13-16.) Petitioner appealed, and the Fifth DCA affirmed per curiam. (Id. at 82.) Mandate
issued on May 29, 2015. (Id. at 88).
Petitioner filed a state petition for writ of habeas corpus on April 28, 2016. (Id. at
90-96.) The Fifth DCA dismissed the petition on May 4, 2016. (Id. at 98).
Petitioner filed the Petition on September 6, 2016. (Doc. 1).
II.
ANALYSIS
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 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
This is the filing date under Florida law. See Thompson v. State, 761 So. 2d 324, 326
(Fla. 2000) (“[H]enceforth we will presume that a legal document submitted by an inmate
is timely filed if contains a certificate of service showing that the pleading was placed in
the hands of prison or jail officials for mailing on a particular date. . . . This presumption
will shift the burden to the state to prove that the document was not timely placed in
prison officials’ hands for mailing.”); see also Crews v. Malara, 123 So. 3d 144, 146 (Fla. 1st
DCA 2013) (holding that the prison date stamp on the prisoner’s petition rebutted
presumption that it was delivered on the date contained on the certificate of service).
1
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of the United States is removed, if the applicant was
prevented from filing by such State action;
(C)
(D)
(2)
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
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)(1)-(2).
In the present case, the Fifth DCA affirmed Petitioner’s conviction on December
28, 2010. Petitioner then had ninety days, or through March 28, 2011, to petition the
Supreme Court of the United States for a writ of certiorari. See Sup. Ct. R. 13. 2 Thus, under
§ 2244(d)(1)(A), the judgment of conviction became final on March 28, 2011, and
Petitioner had through March 29, 2012, absent any tolling, to file a federal habeas corpus
2Rule
13 provides as follows:
The time to file a petition for a writ of certiorari runs from the date
of entry of the judgment or order sought to be reviewed, and not from the
issuance date of the mandate (or its equivalent under local practice). But if
a petition for rehearing is timely filed in the lower court by any party, the
time to file the petition for a writ of certiorari for all parties (whether or not
they requested rehearing or joined in the petition for rehearing) runs from
the date of the denial of the petition for rehearing or, if the petition for
rehearing is granted, the subsequent entry of judgment.
Sup. Ct. R. 13(3).
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petition. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that the one-year
period of limitation does not begin to run until the ninety-day period for filing a petition
for certiorari with the Supreme Court of the United States has expired).
Under § 2244(d)(2), the limitations period tolls during the pendency of “properly
filed” state collateral proceedings. However, Petitioner did not file any state collateral
proceedings before the limitations period expired. Therefore, the tolling provision of §
2244(d)(2) does not apply to Petitioner’s state collateral proceedings. See Webster v. Moore,
199 F.3d 1256, 1259 (11th Cir. 2000) (“A state-court petition . . . that is filed following the
expiration of the limitations period cannot toll that period because there is no period
remaining to be tolled.”). Consequently, the Petition filed on September 6, 2016, was not
timely filed under § 2244(d)(1)(A).
In the Reply, Petitioner contends she is entitled to equitable tolling. (Doc. 9 at 1-2.)
In support of her contention, she asserts that appellate counsel failed to notify her that
her direct appeal was final and she did not discover it until November 28, 2012. (Id. at 2.)
Petitioner further summarily notes that she had difficulties with the prison law library
and was hindered by prison law clerks “from filing her petition until April 28, 2016.” (Id.)
The Supreme Court of the United States has held that the AEDPA’s one-year
statutory limitation period set forth in Ҥ 2244(d) is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is
appropriate when a petitioner demonstrates: “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The
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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. Fla, Dep’t of Corr., 853 F.3d 1216,
1225 (11th Cir. 2017) (citing Menominee Indian Tribe of Wisc. v. United States, 577 U.S. __,
136 S. Ct. 750, 757 n.5 (2016)).
“[A]ttorney negligence, even gross or egregious negligence, does not by itself
qualify as an ‘extraordinary circumstance’ for purposes of equitable tolling; either
abandonment of the attorney-client relationship, such as may have occurred in Holland,
or some other professional misconduct or some other extraordinary circumstance is
required.” Id. at 1227 (emphasis in original). “‘[B]ad faith, dishonesty, divided loyalty,
[and] mental impairment’ . . . may . . . serve as extraordinary circumstances that support
a claim to equitable tolling.” Thomas v. Att’y Gen., Fla., 795 F.3d 1286, 1292 (11th Cir. 2015)
(quoting Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008), rev’d on other grounds,
Holland, 560 U.S. 631). In addition, “[a]ffirmative misrepresentations by counsel about the
filing of a state habeas petition can constitute extraordinary circumstances that warrant
equitable tolling.” Roper v. Dep’t of Corr., 434 F. App’x 786, 790 (11th Cir. 2011).
As explained by the Eleventh Circuit:
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It is well settled that “[t]he burden of proving circumstances that justify
the application of the equitable tolling doctrine rests squarely on the
petitioner.” San Martin, 633 F.3d at 1268. A petitioner “must plead or proffer
enough facts that, if true, would justify an evidentiary hearing on the issue.”
Hutchinson v. Florida, 677 F.3d 1097, 1099 (11th Cir. 2012). “And the
allegations supporting equitable tolling must be specific and not
conclusory.” Id. In light of the petitioner’s burden, district courts are not
“required to mine the record, prospecting for facts that the habeas
petitioner overlooked and could have, but did not, bring to the surface.”
Chavez, 647 F.3d at 1061.
Lugo v. Sec’y, Fl. Dep’t of Corr., 750 F.3d 1198 (11th Cir. 2014).
Petitioner has not pled sufficient facts demonstrating that an extraordinary
circumstance prevented her from timely filing her petition or that she exercised due
diligence. Petitioner summarily states appellate counsel failed to timely notify her that
her direct appeal was final. (Doc. 9 at 2). Petitioner raised this as ground six in the Petition.
(Doc. 1 at 16.)
Petitioner has not asserted any facts that demonstrate appellate counsel acted in
bad faith, was dishonest, had a divided loyalty, suffered from a mental impairment, or
misrepresented that he or she had filed something in the state court. In addition,
Petitioner has not argued that appellate counsel abandoned the attorney-client
relationship. Nevertheless, assuming appellate counsel’s failure to timely notify
Petitioner that the Fifth DCA had affirmed her conviction may constitute abandonment,
Petitioner has not established she acted with due diligence in pursuing her rights.
Petitioner’s direct appeal was filed in approximately October 2008. The Fifth DCA
affirmed Petitioner’s conviction on December 28, 2010, but Petitioner did not discover her
conviction was affirmed until November 28, 2012. “‘A lengthy delay between the issuance
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of a necessary order and an inmate’s receipt of it might provide a basis for equitable
tolling if the petitioner has diligently attempted to ascertain the status of that order and if the
delay prevented the inmate from filing a timely federal habeas corpus petition.’” San Martin, 633
F.3d at 1269–70 (emphases in original) (quoting Drew v. Dep’t of Corrections, 297 F.3d 1278,
1288 (11th Cir. 2002)). Petitioner has not asserted what steps she took, if any, during the
approximate four-year period between the filing of her appeal and her discovery that her
conviction had been affirmed to discover the status of her appeal. There is no indication
that Petitioner contacted her attorney or the state court regarding her appeal, and if so,
when or how many times. See, e.g., Pollock v. Sec’y, De’'t of Corr., 664 F. App’x 770, 773
(11th Cir. 2016) (affirming district court’s finding that the petitioner failed to show due
diligence where he made a single inquiry seventeen months after he filed his appeal brief
to inquire about the status of his appeal). Therefore, Petitioner has not demonstrated she
acted with due diligence.
With reasonable diligence, Petitioner could have discovered that her conviction
had been affirmed by no later than March 28, 2011, ninety days after the Fifth DCA
affirmed her conviction. In other words, a reasonably diligent person would have sought
to learn the status of her appeal if she had not received information concerning the appeal
after it had been pending for more than two years. Had Petitioner acted with due
diligence in ascertaining the status of her appeal, she could have timely filed her petition
or a state collateral proceeding to toll the limitations period by March 29, 2012. 3
Even if Petitioner was entitled to equitable tolling through November 28, 2012, a
finding not made by the Court, the Petition is still untimely. Petitioner filed her Rule 3.850
3
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Likewise, Petitioner’s summary allegations regarding the incompetence of a
prison law clerk and her “extreme difficulties” with the prison law library simply do not
rise to the level of extraordinary circumstances beyond her control which warrant
equitable tolling of the one-year limitations period. See, e.g., Miller v. Florida, 307 F. App’x
366, 368 (11th Cir. 2009); Paulcin v. McDonough, 259 F. App’x 211, 213 (11th Cir. 2007)
(“Paulcin asserted only the conclusory allegation that he was denied access to the [law]
library and his records, but failed to allege how his inability to obtain legal materials
thwarted his efforts to file a timely federal proceeding.”); Dodd v. United States, 365 F.3d
1273, 1282-83 (11th Cir. 2004) (stating “lockdowns and periods in which a prisoner is
separated from his legal papers are not ‘extraordinary circumstances’ in which equitable
tolling is appropriate.”); Akins v. United States, 204 F.3d 1086 (11th Cir. 2000) (one-year
limitations period is not equitably tolled based on prison lockdowns or misplacement of
legal papers). Other than cursorily alleging that a prison law clerk was incompetent and
that she had difficulties with the law library, Petitioner has not explained how these
circumstances prevented her from timely filing her petition or shown she exercised due
diligence. Accordingly, the Petition filed on September 6, 2016, is untimely. 4
motion on January 11, 2013, forty-four days after she learned her conviction was affirmed.
The time would have then tolled through May 29, 2015, when mandate issued in her Rule
3.850 proceeding. At that time, 321 (365 – 44 = 321) days of the limitations period would
have remained to timely file the Petition, or through April 14, 2016. Thus, the Petition
filed on September 6, 2016, was not timely even with equitable tolling.
4 The Court notes that prior to filing the instant action, Petitioner filed two federal
habeas petitions on approximately May 2, 2016, and July 8, 2016, that were dismissed
without prejudice. See Case Nos. 6:16-cv-801-Orl-41TBS and 6:16-cv-1274-Orl-40TBS.
However, the prior petitions were filed after the limitations period expired, even with
equitable tolling. Furthermore, prior federal habeas petition do not toll the one-year
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Any of Petitioner’s allegations that attempt to excuse her failure to file a petition
within the one-year period of limitation that are not specifically addressed herein are
without merit.
III.
CERTIFICATE OF APPEALABILITY
This Court should grant an application for certificate of appealability only if
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). When a district court dismisses a federal habeas petition
on procedural grounds without reaching the underlying constitutional claim, a certificate
of appealability should issue only when a petitioner demonstrates “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id.; Lamarca, 568 F.3d at 934. However, a
prisoner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322,
337 (2003).
Petitioner has not demonstrated that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. Moreover, Petitioner
period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that ' 2244(d)(2) does not
toll the limitations period during the pendency of a prior federal habeas corpus petition).
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cannot show that jurists of reason would find this Court’s procedural rulings debatable.
Petitioner has failed to make a substantial showing of the denial of a constitutional right.
Thus, the Court will deny Petitioner a certificate of appealability.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED WITH
PREJUDICE.
2. Petitioner is DENIED a Certificate of Appealability.
3. The Clerk of the Court shall enter judgment accordingly and is directed to
close this case.
DONE and ORDERED in Orlando, Florida on September 26th , 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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