Sapp v. Secretary, Department of Corrections

Filing 26

ORDER dismissing 18 Amended petition for writ of habeas corpus as time-barred. The clerk shall enter judgment accordingly and close this case. Petitioner is neither entitled to a COA nor to proceed on appeal IFP. Signed by Judge James D. Whittemore on 3/31/2014. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMP A DIVISION

JIMMIED. SAPP,
Petitioner,
Case No. 8: 11 -cv-1506-T-27EAJ

-vsSECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.

ORDER
Petitioner, an inmate of the Florida penal system, initiated this action by filing a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). He subsequently filed an amended
petition (Dkt. 18). Petitioner challenges his sexual battery conviction entered in 2006 by the Fifth
Judicial Circuit Court, Hernando County, Florida. Respondent filed a response to the petition, in
which it incorporates a motion to dismiss the petition as untimely (Dkt. 21 ). Petitioner filed a reply
to the response (Dkt. 22). Upon consideration, this case is dismissed as time-barred.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one year
statute oflimitations for seeking federal habeas corpus relief from a state-court judgment. 28 U.S.C.
§ 2244(d)(l). Lawrence v. Florida, 549 U.S . 327, 331 (2007). The limitation period runs from the
latest of ... "the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review .... " 28 U.S.C. § 2244(d)(l)(A). Additionally, "[t]he
time during which a properly filed application for State post-conviction 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." 28 U.S.C. § 2244( d)(2). An application is "properly filed" when
"its delivery and acceptance are in compliance with the applicable laws and rules governing filings."

Artuz v. Bennett, 531 U.S. 4, 8 (2000).
On July 17, 2007, the appellate court affirmed Petitioner's state court conviction (Resp. Ex.
G); Sapp v. State, 962 So. 2d 355 (Fla. 5th DCA 2007). His conviction therefore became final 90
days later, on October 15, 2007, when the time for filing a petition for writ of certiorari in the
Supreme Court of the United States expired. See Sup. Ct. R. 13(3) ("[t]he time to file a petition for
. . . 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 .. . ."); Chavers v. Secy, Fla. Dep 't of Corr. , 468 F.3d
1273, 1274-75 (11th Cir. 2006) (stating the 90-day period begins to run from the date of entry of
judgment and not the issuance of the mandate). Petitioner therefore had one year from October 15,
2007, in which to file a timely federal habeas petition under 28 U.S.C . § 2254. His original federal
habeas petition was filed on June 29, 2011 (see Dkt. 1), nearly four years after his conviction became
final. Accordingly, unless the limitation period was tolled by a properly filed state court
post-conviction application or equitable tolling applies, his federal petition is time-barred.
On February 8, 2008, 116 days after his conviction became final , Petitioner filed a Florida
Rule 3.800 motion to correct an illegal sentence (Resp. Ex. H). This motion was "properly filed"
pursuant to § 2244(d)(2) because it was filed in accordance with the state court's rules governing
such filings, and therefore, it tolled the federal one-year limitation period. See Artuz, 531 U.S. at 8.
On March 10, 2008, the state court denied the motion (Resp. Ex. I). Petitioner appealed (Resp. Ex.
J), and the appellate comi affirmed per curiam on July 1, 2008 (Resp. Ex. K); Sapp v. State, 985 So.
2d 548 (Fla. 5th DCA 2008). The appellate court's mandate issued on July 18, 2008 (Id.).
On July 11, 2008, Petitioner filed a state petition for writ of habeas corpus alleging

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ineffective assistance of appellate counsel (Resp. Ex . U). The petition was "properly filed" and
therefore tolled the one-year limitation period. On November 5, 2008, the Fifth District Comi of
Appeal denied the petition (Resp . Ex. W).

Petitioner's motion for rehearing was denied on

December 17, 2008 (Id.) .
Another 50 days of untolled time elapsed until Petitioner, on February 5, 2009, filed a
motion for post-conviction reliefunder Florida Rule of Criminal Procedure 3 .850 (Resp. Ex. L ). The
Rule 3.850 motion was "properly filed" and therefore suspended the running of the one-year
limitation period, with 199 days of it remaining (365 - 166 = 199). The state trial comi denied the
Rule 3.850 motion on April 29, 2009 (Resp. Ex. M) . The appellate court affim1ed the denial on
August 25, 2009 (Resp . Ex. N); Sapp v. State, 16 So. 3d 143 (Fla. 5111 DCA 2009) [table]. The
appellate court's mandate issued on September 16, 2009 (id.), restarting the federal limitation period
and giving Petitioner until Monday, April 5, 2010 (199 days), 1 to file a federal habeas petition. See

Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (holding that a Florida post-conviction
motion remains pending until the appellate court's mandate issues).
On September 13 , 2010, Petitioner filed a second Rule 3.850 motion (Resp. Ex. 0).
However, because the federal limitation period already expired on April 5, 2010, his second Rule
3.850 motion did not toll the federal limitation period. See Moore v. Crosby, 321F.3d1377, 1381
(11th Cir. 2003) (Rule 3.850 motion, "filed after expiration of the limitations period[,] does not
relate back so as to toll idle periods preceding the filing of the federal [habeas] petition"); Tinker v.

Moore, 255 F.3d 1331, 1333 (11th Cir. 2001)(where a Rule 3.850 motion is filed afterthe expiration
of the federal limitation period, it does not toll the period under § 2244( d)(2) because no period

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Because April 3, 2010 (the 199'" day) fell on a Saturday, Petitioner had until the following Monday
to file his federal habeas petition.

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remains to be tolled).

Therefore, absent equitable tolling or a showing of actual mnocence,

Petitioner's federal habeas petition is time-barred.
The limitation period under§ 2244(d) is subject to equitable tolling. Sibley v. Culliver, 377
F.3d I I96, I204 (I I th Cir. 2004). Section 2244 "permits equitable tolling 'when a movantuntimely
files because of extraordinary circumstances that are both beyond his control and unavoidable with
diligence."' Steed v. Head, 2 I 9 F.3d I 298, 1300 (I I th Cir. 2000) (quoting Sandvik v. United States,
177 F.3d 1269, 1271 (1 I th Cir. I999) (per curiam)); Arthur v. Allen, 452 F.3d I234, 1252 (I I th Cir.
2006) (petitioner must show both extraordinary circumstances and diligence). Equitable tolling only
applies, however, where the litigant satisfies his burden of showing that he has been pursuing his
rights diligently and that some extraordinary circumstance "stood in his way and prevented timely
filing." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010).
Petitioner has not satisfied his burden of showing circumstances justifying equitable tolling.
In his reply, Petitioner makes no showing of extraordinary circumstances which prevented him from

filing a timely federal habeas petition. Nor does he demonstrate that he has diligently pursued his
rights (Dkt. 22). And he makes no cognizable claim of achrnl im1ocence which might otherwise
justify an exception to the AEDPA limitation bar as a "fundamental miscarriage of justice." See

McQuiggin v. Perkins, 133 S. Ct. 1924, I928 (2013) ("We hold that actual innocence, if proved,
serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar
.. . or .. . expiration of the statute of limitations.").
Accordingly, the Court ORDERS that:
I . Petitioner's amended petition for writ of habeas corpus (Dkt. I 8) is DISMISSED as timebarred.
2. The Clerk shall enter judgment against Petitioner, terminate any pending motions, and
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close this case.

Certificate of Appealability
A certificate of appealability will be granted only if"jurists of reason" would find it debatable
"whether the petition states a valid claim of the denial of a constitutional right" and "whether the
district court was correct in its procedural rnling." See 28 U.S.C. § 2253(c)(2); Slackv. McDaniel,
529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Petitioner cannot
make this showing. Accordingly, Petitioner is not entitled to a certificate of appealability. Since he
is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.

DONE and ORDERED in Tampa, Florida on

SA:sfc
Copy to: Petitioner prose
Counsel of Record

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'2014.