Pechler v. Secretary, Department of Corrections et al
OPINION AND ORDER. The petition for writ of habeas corpus 1 is DENIED, and this case is DISMISSED WITH PREJUDICE. The Clerk of the Court shall enter judgment accordingly and is directed to close this case. This Court should grant an application for certificate of appealability only if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutio nal right. Accordingly, a Certificate of Appealability ("COA") is DENIED in this case. And, because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis. If Petitioner can show by record evidence that his pe tition is not time-barred, and that he was not represented by counsel during the trial court proceedings related to his prior expired 1997 state court convictions and sentences, the Court will entertain a motion to reopen this case, if Petitioner files the motion within 28 days from the date of this Order. Signed by Judge Charlene Edwards Honeywell on 9/15/2014. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RONALD J. PECHLER,
Case No. 8:14-cv-2252-T-36EAJ
Petitioner, a State of Florida prisoner proceeding pro se, filed a Petition for Writ of Habeas
Corpus (“petition”) pursuant to 28 U.S.C. § 2254 challenging state convictions for possession of
cocaine and strong armed robbery entered in 1997 by the Twelfth Judicial Circuit Court, Manatee
County, Florida (Dkt. 1). The Court has undertaken the preliminary review mandated by Rule 4,
Rules Governing Section 2254 Cases, and concludes that the petition is subject to summary
According to the petition, Petitioner entered into a plea agreement on March 12, 1997, in
which he pleaded no contest to strong armed robbery and possession of cocaine (Dkt. 1 at docket
pp. 1, 5). Petitioner was sentenced to a term of 13.5 years in prison (Id. at docket p. 1). Petitioner
neither appealed nor filed post-conviction motions in state court challenging his convictions or
sentences (Id. at docket pp. 2-5).
Petitioner filed the instant federal habeas petition on September 5, 2014. He asserts one
claim for relief, to wit, that his plea was involuntary because the trial court failed to advise him that
his convictions could be used to enhance a future sentence (Id. at docket p. 5).
Initially, this Court must address whether Petitioner was in custody for purposes of 28 U.S.C.
§ 2254 when he filed the instant petition. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir.
2007) (“Federal courts are obligated to inquire into subject-matter jurisdiction sua sponte whenever
it may be lacking.”) (citation and internal quotation marks omitted). A § 2254 petitioner must show
that at the time he filed his petition, he was “in custody pursuant to the judgment of a State court.”
28 U.S.C. § 2254(a). In Green v. Price, 439 Fed. Appx. 777 (11th Cir. 2011) (unpublished), the
Eleventh Circuit Court of Appeals discussed the requirement that a petitioner be “in custody” at the
time he files his § 2254 petition:
A district court has jurisdiction to entertain a § 2254 petition only if the petitioner is
“in custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). The “in custody” requirement means “that the habeas petitioner
[must] be ‘in custody’ under the conviction or sentence under attack at the time his
petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Generally, if the
petitioner’s state sentence has fully expired, he does not meet the “in custody”
requirement. Id. at 492, 109 S. Ct. at 1926. However, when the § 2254 petition can
be construed as asserting a challenge to the current state sentence that was enhanced
by an allegedly invalid prior state conviction, the petitioner is “in custody” for
purposes of federal habeas jurisdiction. Id. at 493-94, 109 S. Ct. at 1926-27; see also
Lackawanna Cnty. Dist Att’y v. Coss, 532 U.S. 394, 399-402, 121 S. Ct. 1567,
1571-73, 149 L. Ed. 2d 608 (2001) (concluding § 2254 petitioner satisfied “in
custody” requirement because the earlier state conviction he nominally sought to
challenge had been used to calculate his sentencing range for his later state
Although such a § 2254 petitioner satisfies the “in custody” requirement, the
petitioner may not collaterally attack the prior expired state sentence unless the
petitioner alleges that the prior state conviction was obtained in violation of his Sixth
Amendment right to counsel announced in Gideon v. Wainwright, 372 U.S. 335, 83
S. Ct. 792, 9 L. Ed. 2d 799 (1963). Lackawanna, 532 U.S. at 404, 121 S. Ct. at 1574.
Additionally, the § 2254 petitioner seeking relief under the Lackawanna exception
must satisfy the procedural prerequisites for relief. Id.
Id. at 781-82.
Although Petitioner is currently incarcerated, he is not incarcerated on the 1997 convictions.1
Because Petitioner is no longer serving sentences for his 1997 convictions, he cannot bring a federal
habeas action directed solely at those convictions. See Lackawanna, 532 U.S. at 401. Nevertheless,
Petitioner alleges that his 1997 convictions were used to enhance the state sentence he is currently
serving (Dkt. 1 at docket p. 5). Consequently, the Court concludes that Petitioner meets § 2254's
“in custody” requirement. See Maleng, 490 U.S. at 492-94 (when a § 2254 petition can be read as
asserting a challenge to a present sentence that actually was enhanced by the allegedly invalid prior
conviction, the prisoner is “in custody” for purposes of § 2254).
Even though Petitioner has met the “in custody” requirement, he is not entitled to challenge
his 1997 convictions. Lackawanna provided an exception for attacking a prior expired state
conviction when such prior conviction had been obtained without the benefit of counsel in violation
of Gideon v. Wainwright, 372 U.S. 335 (1963). Id. at 404. Said exception is not applicable here as
Petitioner does not contend that he was not represented by counsel during the trial court proceedings
related to his prior expired state court convictions and sentences.
Moreover, even if Petitioner had alleged a Gideon violation, he still is not entitled to attack
his prior expired state convictions because his petition is untimely. See Lackawanna, 532 U.S. at
404 (as with any § 2254 petition, a petitioner seeking relief under the Gideon exception must satisfy
the procedural prerequisites for relief). Pursuant to 28 U.S.C. § 2244,
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
The Court takes judicial notice of information available at the Florida Department Of Corrections (“DOC”)
Offender Information Network, viewed September 12, 2014, stating that Plaintiff is currently incarcerated on 2009
convictions of burglary, grand theft, and trafficking in stolen property entered on December 13, 2011, in Martin
County, Florida, Case No. 09-00847. See Fed. R. Evid. 201.
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of —
(A) the date on which the judgment of conviction became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
(2) The 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.
Petitioner did not file a direct appeal, and the time for seeking such review expired 30 days
after the judgment of conviction was entered. See Fla. R. App. P. 9.110(b). Because the judgment
of conviction was entered on March 12, 1997, the time for seeking a direct appeal expired on April
11, 1997. Petitioner then had until April 11, 1998, absent any tolling, to file a federal habeas
petition regarding his convictions. As noted above, Petitioner did not file any tolling state postconviction motions, and his federal habeas petition was filed on September 5, 2014, more than 16
years after the one-year limitation period expired.
Petitioner has not pointed to any valid statutory ground for extending the deadline for filing
his federal petition. Further, Petitioner has not satisfied the requirements for equitable tolling,2 nor
The limitation period under § 2244(d) is subject to equitable tolling. Sibley v. Culliver, 377 F.3d 1196,
1204 (11th Cir. 2004).
has he presented any arguments sufficient to support a claim of actual innocence.3 Accordingly,
Petitioner’s § 2254 petition is time-barred. Petitioner is therefore not entitled to attack his expired
Accordingly, it is ORDERED that:
1. The petition for writ of habeas corpus (Dkt. 1) is DENIED, and this case is DISMISSED
2. The Clerk of the Court shall enter judgment accordingly and is directed to close this case.
3. This Court should grant an application for certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Petitioner has failed to make a substantial showing of the denial of a constitutional right.4
Accordingly, a Certificate of Appealability (“COA”) is DENIED in this case. And, because
Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.
4. If Petitioner can show by record evidence that his petition is not time-barred, and that he
was not represented by counsel during the trial court proceedings related to his prior expired 1997
state court convictions and sentences, the Court will entertain a motion to reopen this case, if
Petitioner files the motion within 28 days from the date of this Order.
A cognizable claim of actual innocence justifies an exception to the limitation bar under § 2244(d). See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (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
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases In the United States District Courts,
The district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant. Before entering the final order, the court may direct the parties to submit
arguments on whether a certificate should issue. If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the
court denies a certificate, a party may not appeal the denial but may seek a certificate from the
court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial
does not extend the time to appeal.
DONE and ORDERED in Tampa, Florida, on September 15, 2014.
Copy to: Petitioner pro se
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