Trice v. Department of Corrections, State of Florida
Filing
8
ORDER denying 6 --motion to dismiss; response due within forty-five days; reply due within thirty days of the response. Signed by Judge Steven D. Merryday on 3/23/2012. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES TRICE,
Petitioner,
v.
Case No. 8:11-cv-1453-T-23AEP
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Trice, represented by counsel, petitions for the writ of habeas corpus under 28
U.S.C. § 2254 and challenges his conviction for first degree murder, for which he
serves life imprisonment. The respondent moves (Doc. 6) to dismiss the petition as
time-barred. In opposing (Doc. 7) dismissal, Trice admits the petition’s untimeliness
and argues entitlement to equitable tolling under Holland v. Florida, ___ U.S. ___, 130
S. Ct. 2549 (2010). Trice shows that his post-conviction counsel’s misconduct meets
Holland’s requirement for equitable tolling.
“[T]he timeliness provision in the federal habeas corpus statute is subject to
equitable tolling.” Holland, 130 S. Ct. at 2554. “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner must meet
both requirements, and he controls the first requirement—due diligence—but not the
second—extraordinary circumstances. Failure to meet both requirements, especially
the one he controls, precludes equitable tolling. “Under long-established principles,
petitioner’s lack of diligence precludes equity’s operation.” 544 U.S. at 419. But
“[t]he diligence required for equitable tolling purposes is
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