Norris v. Secretary, Department of Corrections et al

Filing 3

ORDER: Petitioner's petition for writ of habeas corpus 1 is DISMISSED as time-barred. The Clerk shall terminate any pending motions and close this case. If Petitioner can show by record evidence that his petition is not time-barred, the Cou rt will entertain a motion to reopen this case if Petitioner files the motion on or before October 11, 2012. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 9/13/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KENNETH DALE NORRIS, JR.,
Petitioner,
-vs-

Case No. 8:12-CV-2042-T-30TGW

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________/
ORDER
Before the Court is Petitioner’s petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254 (“petition”) (Dkt. 1) challenging plea-based convictions for four counts of using a child in
a sexual performance entered in November 16, 2007, by the Tenth Judicial Circuit Court, Polk
County, Florida. Upon consideration, the Court concludes that the petition is subject to dismissal
as time-barred under 28 U.S.C. § 2244(d). See Day v. McDonough,126 S.Ct. 1675, 1684 (2006)
(district courts are permitted to consider sua sponte the timeliness of a state inmate’s habeas petition,
but must accord the parties fair notice and an opportunity to present their positions). See also
Jackson v. Sec. for the Dep’t of Corrs., 292 F.3d 1347, 1348-49 (11th Cir. 2002) (before addressing
the merits of a state prisoner’s request for federal habeas relief, a district court may determine
whether the petition is barred by the one-year statute of limitations under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”)).

The AEDPA created a limitations period for petitions for writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. “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 . . . 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)(1)(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).
Petitioner’s judgment of conviction was entered on November 16, 2007. Petitioner did not
file a direct appeal.1 Therefore, his judgment of conviction became final 30 days later on December
16, 2007. See Gust v. State, 535 So. 2d 642, 643 (Fla. 1st DCA 1988) (holding that when a
defendant does not appeal his conviction or sentence, the judgment and sentence become final when
the thirty-day time period for filing an appeal expires). According to the Polk County Clerk of
Court’s website, Petitioner filed: 1) a motion to vacate the judgment on April 7, 2010, which was
denied on May 3, 2010; 2) a motion to correct illegal sentence on May 4, 2011, which was denied
on May 18, 2011; and 3) a motion for post conviction relief on June 27, 2011, which was denied
June 29, 2011.2 These post conviction motions, however, were filed well beyond the expiration of

1

Although the petition indicates that Petitioner appealed from the judgment of conviction (Dkt. 1 at 1), the
Court takes judicial notice of information on the Polk County Clerk of Court’s website, www.polkcountyclerk.net/, and the
Florida Second District Court of Appeal’s website, www.2dca.org/, viewed on September 12, 2012, which reveals that
Petitioner did not file a direct appeal from the judgment of conviction. Fed.R.Evid. 201.
2

According to the Polk County Clerk of Court’s website, Petitioner appealed the denials of the April 7,
2010, and June 27, 2011 motions, and those denials were affirmed by the appellate court.

2

the December 16, 2008 federal limitation deadline. As a consequence, the motions did not toll the
federal limitation period. “[A] properly and timely filed petition in state court only tolls the time
remaining within the federal limitation period.” Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th Cir.
2001), cert. denied, 534 U.S. 1144 (2002).

Consequently, Petitioner’s federal petition,

constructively filed on August 23, 2012, is untimely.
Equitable Tolling
Section 2244 “permits equitable tolling ‘when a movant untimely files because of
extraordinary circumstances that are both beyond his control and unavoidable with diligence.’”
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (quoting Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999) (per curiam)). In the instant case, Petitioner has not alleged that there
were extraordinary circumstances that were both beyond his control and unavoidable with diligence.
Therefore, he is not entitled to equitable tolling. Consequently, the petition must be dismissed as
time-barred.
Accordingly, the Court ORDERS that:
1.

Petitioner’s petition for writ of habeas corpus (Dkt. 1) is DISMISSED as time-barred.

2.

The Clerk shall terminate any pending motions and close this case.

3.

If Petitioner can show by record evidence that his petition is not time-barred, the
Court will entertain a motion to reopen this case if Petitioner files the motion on or
before October 11, 2012.

3

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability.
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). Rather, a district court must first issue a certificate
of appealability. Id. “A certificate of appealability may issue … only if the applicant has made a
substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To merit a certificate
of appealability, Petitioner must show that reasonable jurists would find debatable both (1) the
merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th
Cir. 2001). Because the petition is clearly time-barred, Petitioner cannot satisfy the second prong
of the Slack test. 529 U.S. at 484.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled
to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on September 13, 2012.

SA:sfc
Copy to: Petitioner pro se

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