Taylor v. Secretary, Department of Corrections et al (Hillsborough County)

Filing 94

ORDER denying 93 Motion for Certificate of Appealability. Signed by Judge Kathryn Kimball Mizelle on 2/17/2023. (RO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIAM KENNETH TAYLOR,
Petitioner,
v.
SECRETARY, Department of Corrections,
Respondent.

Case No. 8:12-cv-1169-KKM-AEP
DEATH CASE

ORDER
William Kenneth Taylor, a Florida prisoner, filed a Petition for the Writ of Habeas
Corpus under 28 U.S.C. § 2254 challenging his murder conviction and death sentence
(Doc. 1.) The Court dismissed the petition as untimely and declined to issue a Certificate
of Appealability (COA). (Doc. 91.)
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a district court or
court of appeals must first issue a COA. Id. Under Rule 11(a), Rules Governing Section
2254 Cases, “[t]he district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Notwithstanding this Court’s earlier denial
of a COA when it denied habeas relief, Taylor applies for a COA (Doc. 93.).
“A [COA] may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a COA, Taylor must

show that reasonable jurists would find debatable this Court’s determination that the
petition is time-barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Taylor “submits
that reasonable jurists could disagree with the Court’s finding that the habeas corpus
petition was untimely and not entitled to equitable tolling.” (Doc. 93 at 6.) He is mistaken.
First, Taylor fails to support his request for a COA based on this Court’s
determination of untimeliness. The earlier order explained that the petition is untimely by
eleven days because Taylor erroneously calculated his limitation period from the deadline
to file for rehearing on appeal even though he did not file for rehearing before the Florida
Supreme Court. Under Supreme Court Rule 13.3, the additional time for calculating the
90-day limit to petition for certiorari of a state court decision applies only if rehearing in
that state court is filed. See Butler v. Sec’y, Fla. Dep’t of Corr., 621 F. App’x 604, 606
(11th Cir. 2015) (“Because Mr. Butler did not seek rehearing from the Florida Supreme
Court[,] the 90–day period for seeking certiorari expired” and the federal one-year
limitation expired before he filed his state post-conviction motion.). 1 Taylor did not seek
rehearing, and he fails to identify a basis for challenging the timeliness calculation.
Consequently, Taylor fails to show any basis for reasonable jurists to disagree regarding the
untimeliness determination.

Although not binding, Butler is persuasive on this point. See 11th Cir. R. 36-2 (“Unpublished opinions
are not considered binding precedent, but they may be cited as persuasive authority.”).

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Second, Taylor fails to show that jurists could disagree with this Court’s
determination that he is not entitled to equitable tolling. Taylor recognizes that, as
discussed in the earlier order, ordinary negligence fails to qualify for equitable tolling.
(Docs. 91 at 9–10 and 93 at 8–9.) Taylor contends that his attorney’s miscalculation of the
limitation deadline was not ordinary negligence but “a profound mistake of law.” (Doc. 93
at 9.) As discussed in the earlier order, Taylor’s contention is foreclosed by Holland v.

Florida, 560 U.S. 631, 651–52 (2010) (explaining that a “garden variety claim of excusable
neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline, does
not warrant equitable tolling”) (internal citations omitted). Taylor identifies no egregious
attorney misconduct, such as the attorney’s lying and abandonment that occurred in

Holland.
Alternatively, Taylor asserts entitlement to equitable tolling because there was a
period of time when the limitation was running before he filed a state post-conviction
motion and he had no appointed counsel. Citing Martinez v. Ryan, 566 U.S. 1 (2012),
Taylor apparently believes that his not having an attorney excuses his allowing the federal
limitation to expire. Taylor misinterprets Martinez, which holds that “[i]nadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9.

Martinez created a narrow exception, inapplicable to Taylor. “What the Martinez decision
did—and the only thing it did—was create a narrow, equitable exception to the general
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rule that a petitioner cannot rely on the ineffectiveness of collateral counsel to serve as cause
for excusing the procedural default of a claim in state court, thereby permitting federal
habeas review of the merits of that claim.” Chavez v. Sec’y, Dep’t of Corr., 742 F.3d 940,
945 (11th Cir. 2014) (citing Martinez, 132 S. Ct. at 1315–20). Taylor conflates two
separate equitable principles. Holland’s application of equity applies to the tolling of time
for a federal application that is filed untimely whereas Martinez’s application of equity
applies to permit the review of the merits of a claim of ineffective assistance of trial counsel
that was procedurally defaulted in the state courts. Matinez is inapplicable to a timeliness
obstacle. See Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014) (“[T]he Martinez rule
explicitly relates to excusing a procedural default of ineffective-trial-counsel claims and
does not apply to AEDPA’s statute of limitations or the tolling of that period.”).
Consequently, Taylor fails to show any basis for reasonable jurists to disagree regarding the
denial of equitable tolling.
Accordingly, Taylor’s “Application for Certificate of Appealability” (Doc. 93) is
DENIED.
ORDERED in Tampa, Florida, on February 17, 2023.

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