Bailey v. Secretary, Department of Corrections et al
Filing
19
OPINION AND ORDER dismissing as time-barred the application for the writ of habeas corpus; denying a certificate of appealability; denying leave to proceed on appeal in forma pauperis; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 9/29/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSHUA BAILEY,
Applicant,
v.
CASE NO. 8:13-cv-3042-T-23JSS
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Bailey applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges the validity of his state conviction for first degree murder, for which
he serves life imprisonment. The respondent correctly argues that the application is
time-barred and supports the argument with numerous exhibits (“Respondent’s
Exhibit __”). (Doc. 10) Bailey admits the application’s untimeliness but asserts
entitlement both to equitable tolling of the limitation and to the actual innocence
exception to the limitation. Because he proves insufficient tolling for the former and
no entitlement to the latter, Bailey is not entitled to a review on the merits.
UNTIMELINESS
The Anti-Terrorism and Effective Death Penalty Act creates a limitation for a
Section 2254 application for the writ of habeas corpus. “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, under 28 U.S.C. § 2244(d)(2), “[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.”
Bailey’s conviction was final on May 22, 2002,1 and the limitation expired one
year later, absent tolling for a state post-conviction proceeding. Bailey let 268 days
elapse before on February 19, 2002, he filed a petition for the writ of habeas corpus
under state Rule 9.141(d), Florida Rules of Criminal Procedure, in which he alleged
that appellate counsel rendered ineffective assistance. (Respondent’s Exhibit G)
Tolling continued until September 20, 2002, when the district court denied the
petition. (Respondent’s Exhibit I) Bailey had 97 days remaining (365 S 268 = 97).
Consequently, Bailey’s federal one-year deadline was December 26, 2002 (September
20 + 97 days = December 26, 2002). Bailey filed his federal application nearly eleven
years later on December 3, 2013. (Doc. 1)
Although in 2004 Bailey was permitted leave for a belated motion for postconviction relief under Rule 3.850, Florida Rules of Criminal Procedure, the motion
1
Bailey’s direct appeal concluded on February 21, 2002. (Respondent’s Exhibit F) The
conviction became final after ninety days, the time allowed for petitioning for the writ of certiorari.
28 U.S.C. § 2244(d)(1)(A). See Bond v. Moore, 309 F.3d 770 (11th Cir. 2002), and Jackson v. Sec’y,
Dep’t Corr., 292 F.3d 1347 (11th Cir. 2002).
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afforded Bailey no tolling because, as shown above, the limitation expired more than
a year earlier. “[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). Because the federal one-year
period had already expired, no federal limitation remained to toll to allow Bailey to
file a federal action. To overcome the admitted untimeliness, Bailey asserts
entitlement to equitable tolling of the limitation and to the actual innocence
exception to the limitation.
EQUITABLE TOLLING
The one-year limitation established in Section 2244(d) is not jurisdictional and,
as a consequence, “is subject to equitable tolling in appropriate cases.” Holland v.
Florida, 560 U.S. 631, 645 (2010). “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). See Jones v. United States, 304 F.3d 1035,
1040 (11th Cir. 2002), cert. denied, 538 U.S. 947 (2003). Bailey must meet both
requirements, and he controls the first requirement — due diligence — but not the
second requirement — extraordinary circumstances. The failure to meet either
requirement precludes equitable tolling. “The diligence required for equitable tolling
purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence,’” Holland,
560 U.S. at 653 (internal quotations and citations omitted), and an applicant’s “lack
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of diligence precludes equity’s operation.” 544 U.S. at 419. To satisfy the second
requirement, Bailey must show extraordinary circumstances both beyond his control
and unavoidable even with diligence. Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999). See cases collected in Harper v. Ercole, 648 F.3d 132, 137 (2nd Cir.
2011) (“To secure equitable tolling, it is not enough for a party to show that he
experienced extraordinary circumstances. He must further demonstrate that those
circumstances caused him to miss the original filing deadline.”). Bailey’s asserted
entitlement to equitable tolling is based on attorney abandonment.
Facts
Bailey’s family arguably hired Alex Stavrou, Esq., to move for post-conviction
relief under state Rule 3.850 to challenge Bailey’s murder conviction. The parents
never met with Mr. Stavrou but worked exclusively with a paralegal who claimed to
represent Mr. Stavrou and who had previously performed contract work for Mr.
Stavrou. The paralegal prepared and signed a contract for legal representation and
received an initial payment of $7,500 from Bailey’s parents. With the assistance of his
wife (who was a real estate broker and mortgage broker), the paralegal later arranged
for Bailey’s parents to receive a mortgage on their home so that they could remit
additional monies toward the attorney fees. Over the ensuing months the paralegal
assured Bailey and his parents that a post-conviction motion was in preparation,
showed them a draft of the motion, and represented that the federal limitation had
been tolled. When not meeting the paralegal in person, Bailey’s parents spoke with
the paralegal by calling Mr. Stavrou’s office.
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Mr. Stavrou represents that he was never aware of the paralegal’s actions until
February, 2004, at which time he self-reported the circumstances to The Florida Bar.
Also, Mr. Stavrou successfully moved the circuit court to grant Bailey leave to file a
belated motion under Rule 3.850, but he did not continue to represent Bailey.
Contrary to Mr. Stavrou’s representation of ignorance until 2004, (1) Bailey was
deposed in October, 2002, by the prosecutor for Bailey’s co-defendant’s trial, (2) Mr.
Stavrou was present at the deposition, and (3) Bailey stated that the post-conviction
motion was filed by his private counsel. “Q. Private counsel being Mr. Stavrou, who
is sitting here today with you? A. That is correct.” (Doc. 17-1 at 4) Bailey admitted
that he had neither spoken to, nor met with, Mr. Stavrou until the deposition.
(Doc. 17-1 at 4)
First Requirement: Due Diligence
“The diligence required for equitable tolling purposes is ‘reasonable diligence,’
not ‘maximum feasible diligence.’” Holland, 560 U.S. at 653 (citations omitted). As
stated in Downs, 520 F.3d at 1323 (quoting Aron v. United States, 291 F.3d 708, 712
(11th Cir. 2002)) (ellipsis original), “Due diligence . . . does not require a prisoner to
undertake repeated exercises in futility or to exhaust every imaginable option, but
rather to make reasonable efforts.
Moreover, the due diligence inquiry is an
individualized one that must take into account the conditions of confinement and the
reality of the prison system.” Under the above facts, Bailey and his parents acted
diligently to hire counsel, paid the paralegal attorneys fees, relied upon the
paralegal’s representations that a tolling motion was filed, and reasonably believed
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that Mr. Stavrou was retained when Stavrou was present and representing Bailey
during the deposition. Bailey meets the due diligence requirement. However, as
discussed above, equitable tolling requires proof of both “due diligence” and
“extraordinary circumstances.”
Second Requirement: Extraordinary Circumstances
Bailey contends that his retained attorney abandoned him. As Maples v.
Thomas, 132 S. Ct. 912, 924 (2012), explains, “abandonment” qualifies as an
“extraordinary circumstance”:
We agree that, under agency principles, a client cannot be
charged with the acts or omissions of an attorney who has
abandoned him. Nor can a client be faulted for failing to act on
his own behalf when he lacks reason to believe his attorneys of
record, in fact, are not representing him. We therefore inquire
whether Maples has shown that his attorneys of record
abandoned him, thereby supplying the “extraordinary
circumstances beyond his control,” necessary to lift the state
procedural bar to his federal petition.
Whether an attorney’s inaction constitutes abandonment necessarily dependents on
the facts under review. Downs v. McNeil, 520 F.3d 1311 (11th Cir. 2008), explains:
During the course of representation, counsel’s alleged behavior
ran the gamut from acts of mere negligence to acts of gross
negligence to acts of outright willful deceit. In considering
whether the conduct of counsel was extraordinary, we will not
dissect the continuing course of conduct in which counsel
engaged, but rather view counsel’s behavior as a whole.
Consequently, although the culminating event which rendered
Downs’ federal habeas petition untimely was counsel’s late
filing of the petition, that ordinary act of negligence cannot be
isolated from counsel’s allegedly egregious misconduct.
Holland, 560 U.S. at 651, cites cases in which the “lower courts have
specifically held that unprofessional attorney conduct may, in certain circumstances,
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prove ‘egregious’ and can be ‘extraordinary’. . . .” Holland cites as examples three
cases that found attorney abandonment, specifically, Baldayaque v. United States, 338
F.3d 145 (2nd Cir. 2003); Spitsym v. Moore, 345 F.3d 796 (9th Cir. 2003); and United
States v. Martin, 408 F.3d 1089 (8th Cir. 2005). Each case, including Holland, features
egregious attorney misconduct both prejudicial to the client and arguably similar to
Mr. Stavrou’s inaction, specifically, representing Bailey during a 2002 deposition but
accomplishing nothing further until 2004 and failing to supervise a subordinate. In
sum, Bailey proves abandonment that meets the “extraordinary circumstance”
requirement.
As a consequence, Bailey proves both “due diligence” and “extraordinary
circumstances” for entitlement to equitable tolling based on his counsel’s
abandonment. However, the record shows that the application is untimely even if
Bailey is afforded the maximum amount of equitable tolling.
As discussed above, when determining timeliness, Bailey allowed 268 days to
elapse after his conviction became final and he tolled the limitation by filing a
petition for the writ of habeas corpus in the state district court. Bailey had 97 days
remaining of the one-year limitation. Affording him the maximum possible amount
of equitable tolling, Bailey’s limitation resumed on December 5, 2012, when the
mandate issued on his belated motion under Rule 3.850. As a consequence, the
limitation expired on March 12, 2013. (December 5, 2012 + 97 days = March 12,
2013) Bailey filed his federal application on December 3, 2013, which is 362 days
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after the mandate and nearly nine months late. As a consequence, the application is
untimely even though Bailey qualifies for equitable tolling.
ACTUAL INNOCENCE
Bailey asserts entitlement to a review on the merits under the “actual
innocence” exception to the federal limitation. Although Bailey can challenge his
conviction if he can show that he is “actually innocent” of the offense, actual
innocence is not a separate claim that challenges the conviction but a “gateway”
through which a defendant can pass to assert an otherwise time-barred or
procedurally barred federal claim.2 Passage through the gateway is difficult to obtain
because “[t]o be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence — whether . . . exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence — that was
not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The gateway is
narrow and opens “only when a petition presents ‘evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error.’” McQuiggin,
Warden, v. Perkins, 133 S. Ct. 1924, 1936 (2013) (quoting Schlup v. Delo 513 U.S. 298,
316 (1995)).
2
Bailey asserts his actual innocence as a means of escaping the limitation’s bar. The
Supreme Court has never recognized the existence of a “free standing” claim. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a prisoner may be entitled to
habeas relief based on a freestanding claim of actual innocence.”) (citing Herrera v. Collins, 506 U.S.
390, 404–05 (1993)).
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“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998). House v. Bell, 547 U.S. 518, 538
(2006) (internal citation omitted), explains that the applicant’s burden, although
demanding, is not absolute proof of innocence:
[I]t bears repeating that the Schlup standard is demanding and
permits review only in the “extraordinary” case . . . . At the
same time, though, the Schlup standard does not require
absolute certainty about the petitioner’s guilt or innocence. A
petitioner’s burden at the gateway stage is to demonstrate that
more likely than not, in light of the new evidence, no
reasonable juror would find him guilty beyond a reasonable
doubt — or, to remove the double negative, that more likely
than not any reasonable juror would have reasonable doubt.
A sufficient showing of actual innocence can overcome the limitation bar, as Perkins,
133 S. Ct. at 1928 (brackets original), explains:
We hold that actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is
a procedural bar, as it was in Schlup and House, or, as in this
case, expiration of the statute of limitations. We caution,
however, that tenable actual-innocence gateway pleas are rare:
“[A] petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new evidence,
no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Schlup, 513 U.S., at 329, 115 S. Ct.
851; see House, 547 U.S., at 538, 126 S. Ct. 2064 (emphasizing
that the Schlup standard is “demanding” and seldom met). And
in making an assessment of the kind Schlup envisioned, “the
timing of the [petition]” is a factor bearing on the “reliability of
th[e] evidence” purporting to show actual innocence. Schlup,
513 U.S., at 332, 115 S. Ct. 851.
Bailey admits to having participated in beating the victim, but he denies
having drowned the victim. Bailey’s asserted actual innocence is that his
co-defendant had admitted to another jail detainee that he alone had drowned the
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victim. This proposed testimony was the subject of a hearing immediately before
trial started, and the trial court rejected the proposed testimony based on a lack of
trustworthiness. (Respondent’s Exhibit M, vol. III at 6–18) As a consequence, the
proposed evidence fails to qualify under the actual innocence exception because the
evidence is not “new” but, as was the circumstance in Perkins, “the information . . .
was ‘substantially available . . . at trial.’” Perkins, 133 S. Ct. at 1936. As a
consequence, Bailey is not entitled to the actual innocence exception to the
limitation.
Accordingly, the application for the writ of habeas corpus (Doc. 1) is
DISMISSED AS TIME-BARRED. The clerk must CLOSE this case.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Bailey is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s
denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first
issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” To merit a COA,
Bailey 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 application is clearly time-barred, Bailey
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cannot meet Slack’s prejudice requirement. 529 U.S. at 484. Finally, because Bailey
is not entitled to a COA, he is not entitled to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Bailey must pay the full $505 appellate filing fee unless
the circuit court allows Bailey to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 29, 2017.
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