Rawls v. Secretary, Department of Corrections et al

Filing 13

ORDER re 1 Petition for writ of habeas corpus filed by Terron Rawls is DENIEDand this case is DISMISSED WITH PREJUDICE.Petitioner is DENIED a Certificate of Appealability.The Clerk of the Court shall enter judgment accordingly and is directed to close this case. Signed by Judge Gregory A. Presnell on 2/12/2018. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TERRON RAWLS,
Petitioner,
v.

Case No: 6:17-cv-106-Orl-31TBS

SECRETARY, DEPARTMENT OF
CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents.
/
ORDER
This case is before the Court on Petitioner Terron Rawls’ 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. 8) in compliance with this Court’s
instructions. Petitioner filed a Reply to the Response (“Reply,” Doc. 11).
Petitioner asserts eight grounds for relief. For the following reasons, the Petition is
denied as untimely.
I.

PROCEDURAL HISTORY

A jury found Petitioner guilty of burglary of a dwelling (Count One), theft of
property of $300 or more but less than $500 (Count Two), possession of burglary tools
(Count Three), criminal mischief (Count Four), and resisting an officer without violence
(Count Five). (Doc. 9-2 at 110-114.) The state court sentenced Petitioner to life in prison
as a prison releasee reoffender for Count One, to concurrent ten-year terms of
imprisonment for Counts Two through Four, and to a concurrent 364-day term of

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imprisonment for Count Five. (Doc. 9-3 at 5-8.) Petitioner appealed, and on March 5, 2013,
the Fifth District Court of Appeal of Florida (“Fifth DCA”) affirmed per curiam. (Doc. 9-4
at 186.)
On April 23, 2013, Petitioner filed a motion for reduction of sentence pursuant to
Rule 3.800(c) of the Florida Rules of Criminal Procedure. 1 (Doc. 9-4 at 190.) The state court
denied the motion on April 26, 2013. (Id. at 194.) Petitioner did not appeal.
On March 13, 2014, Petitioner filed a motion for post-conviction relief pursuant to
Rule 3.850 of the Florida Rules of Criminal Procedure, which he amended. (Doc. 9-5 at 249.) The state court denied the motion after an evidentiary hearing. (Doc. 9-7 at 24-40.)
Petitioner appealed, and the Fifth DCA affirmed per curiam. (Doc. 9-8 at 142.) Mandate
issued on August 29, 2016. (Doc. 9-9 at 8.)
While his Rule 3.850 motion was pending, Petitioner file motions to correct an
illegal sentence pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure on
March 31, and July 22, 2014. (Doc. Nos. 9-5 at 53-57; 9-6 at 10-12.) The state court denied
the motions and subsequently denied Petitioner’s motion for rehearing on August 11,
2016. (Doc. Nos. 9-9 at 132-35; 9-11 at 6.) Petitioner did not appeal.

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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On August 29, 2014, Petitioner also filed a state habeas petition while his Rule 3.850
motion was pending. (Doc. 9-9 at 10-29.) The Fifth DCA summarily denied the petition.
(Id. at 122.) The Fifth DCA denied Petitioner’s motion for rehearing on February 18, 2015.
(Id. at 130.)
On September 14, 2016, Petitioner filed a state petition for writ of habeas corpus in
the circuit court. (Doc. 9-11 at 9-15.) On November 8, 2016, the state court dismissed the
petition as untimely and successive. (Id. at 18-19.) Petitioner did not appeal.
Petitioner filed the Petition on January 19, 2017. (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
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 that 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 facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.

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(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 section.

28 U.S.C. § 2244(d)(1)-(2).
In the present case, the Fifth DCA affirmed Petitioner’s convictions on March 5,
2013. Petitioner then had ninety days, or through June 3, 2013, to petition the Supreme
Court of the United States for writ of certiorari. See Sup. Ct. R. 13.2 Thus, under §
2244(d)(1)(A), the judgment of conviction became final on June 3, 2013, and Petitioner
had through June 4, 2014, absent any tolling, to file a federal habeas corpus 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. When Petitioner filed his Rule 3.850 motion on March
13, 2014, 283 days of the one-year limitations period had expired. The time was tolled

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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through the pendency of several of Petitioner’s post-conviction proceedings. The lastof
these matters concluded on September 12, 2016,3 when the time expired for Petitioner to
appeal the denial of his Rule 3.800(a) motions. At that time, Petitioner had 82 days
remaining to timely file his Petition or until December 5, 2016.4
The Court is aware that Petitioner filed a state habeas petition on September 14,
2016. However, it was not “properly filed” because the state court found it to be untimely.
Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (determining that an untimely state postconviction proceeding is not “properly filed” within the meaning of § 2244(d)(2)); see also
Sykosky v. Crosby, 187 F. App’x 953, 958 (11th Cir. 2006) (“Because [petitioner’s] Rule 3.850
motion was untimely under state law, it was not ‘properly filed’ for purposes of §
2244(d)(2) and did not toll AEDPA’s statute of limitations.”). Therefore, the petition did
not toll the limitation period.
Petitioner contends that he is entitled to equitable tolling. (Doc. 11 at 2-4.) In
support of this argument, Petitioner notes that he was transferred to another facility on
February 15, 2016, and did not obtain his legal records until March 1, 2016. (Id. at 2.)
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

Petitioner had thirty days to appeal the August 11, 2016 denial of his motion for
rehearing, which concluded on September 10, 2016, a Saturday. Therefore, Petitioner had
until the following Monday, September 12, 2016, to file an appeal.
3

Petitioner’s limitation period concluded on December 4, 2016, a Sunday.
Consequently, Petitioner had until December 5, 2016, to timely file his Petition.
4

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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, 544 U.S. at 418). “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. 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)).
As explained by the Eleventh Circuit:
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 demonstrated that some extraordinary circumstance prevented
him from timely filing his petition. Petitioner’s contention that he did not have his legal
documents for approximately twenty days simply does not rise to the level of

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extraordinary circumstances beyond his 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, 1282B83 (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). Furthermore,
Petitioner had his legal documents before his state post-conviction proceedings were
final. Therefore, Petitioner’s brief separation from his legal documents clearly did not
prevent him from timely filing his petition once his state collateral proceedings
concluded.
Likewise, Petitioner has not shown he exercised due diligence. Petitioner had 82
days remaining to timely file his petition when his properly filed post-conviction
proceedings concluded. Petitioner, however, waited almost four months before he filed
the Petition. Petitioner, therefore, is not entitled to equitable tolling. Accordingly, the
Petition will be dismissed as untimely.
Any of Petitioner’s allegations that attempt to excuse his failure to file a petition
within the one-year period of limitation that are not specifically addressed herein are
without merit.

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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
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

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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 February 12, 2018.

Copies furnished to:
OrlP-1
Counsel of Record
Unrepresented Party

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