Orona v. Secretary, Department of Corrections et al

Filing 12

ORDER granting 5 --motion to dismiss; denying a certificate of appealability and leave to appeal in forma pauperis; directing the Clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 5/18/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN LEE ORONA,
Petitioner,
v.

CASE NO. 8:14-cv-2989-T-23EAJ

SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Orona applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1)
and challenges the validity of his state conviction for attempted sexual battery on a
person less than twelve years of age, lewd molestation, attempted lewd or lascivious
exhibition, and false imprisonment, for which he is imprisoned for twenty-five years.
The respondent moves to dismiss the application as time-barred. (Doc. 5) Orona
opposes the motion. (Doc. 11) The record shows that the application is time-barred.
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, “[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).
Orona’s conviction became final on February 28, 2008,1 and the federal
limitation barred his claim one year later absent tolling for a timely post-conviction
application in state court. Orona let 168 days elapse before he filed a petition for the
writ of habeas corpus with the state appellate court, in which petition he alleged that
appellate counsel had rendered ineffective assistance. (Respondent’s Exhibit 5)
Tolling continued until February 2, 2009, when the petition was denied.
(Respondent’s Exhibit 6) Orona let 127 days elapse before he filed a Rule 3.850
motion for post-conviction relief on June 9, 2007. (Respondent’s Exhibit 7) Tolling
continued until March 7, 2012, when the mandate issued. (Respondent’s Exhibit 10)
Orona had 70 days remaining (365 S 168 S 127 = 70). As a consequence, Orona’s
limitation deadline was May 16, 2012 (March 7, 2012 + 70 = May 16, 2012).
Although Orona filed two more post-conviction petitions in state court, neither
qualifies for tolling.
First, on April 9, 2012, Orona filed a successive Rule 3.850 motion for postconviction relief, in which he argued that newly discovered evidence afforded him
another opportunity to challenge his conviction. (Respondent’s Exhibit 11) The
1

Orona’s direct appeal concluded on November 30, 2007, with the denial of his motion for
rehearing. (Respondent’s Exhibit 4) 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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state court held that the petition was “barred as untimely and successive”
(Respondent’s Exhibit 12), which ruling was affirmed on appeal. (Respondent’s
Exhibit 13) In opposing the present motion to dismiss, Orona asserts timeliness
under Section 2244(d)(1)(D), which calculates the limitation from “the date on which
the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.”
In opposing (Doc. 11 at 4) the motion to dismiss Orona shows that he
misunderstands the requirements for entitlement to a limitation based on newly
discovered evidence.
[I]f the petitioner alleges newly discovered evidence, the filing
deadline is one year from “the date on which the factual
predicate of the claim . . . could have been discovered through
the exercise of due diligence.” § 2244(d)(l)(D). Based on
petitioner’s habeas petition, this court must assume without
deciding that the factual predicate of his claim could not have
been discovered with due diligence before the alleged triggering
event, making the claim timely under § 2244(d)(1)(D).

Contrary to Orona’s contention, to qualify for a limitation based on newly discovered
evidence a petitioner must (1) prove that his new claims are based on newly
discovered evidence, not just assert that his claim is based on newly discovered
evidence, and (2) prove that he exercised due diligence. As Melson v. Allen, 548 F.3d
993, 999 (11th Cir. 2008), explains, the one-year limitation under Section
2244(d)(1)(D) starts when the evidence was discoverable through the exercise of due
diligence, not when the new evidence was actually discovered:

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The limitations period under § 2244(d)(1)(D) begins when the
factual predicate of a claim could have been discovered using
due diligence, not when it was actually discovered. See
§ 2244(d)(1) (D); Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.
2004). Although we have not defined due diligence with respect
to a § 2244(d)(1)(D) claim, we have addressed it in the
analogous context of a second federal habeas petition which is
based on newly discovered facts. See In re Boshears, 110 F.3d
1538, 1540 (11th Cir. 1997) (per curiam). In the latter context, a
petitioner must show that “‘the factual predicate for the claim
could not have been discovered previously through the exercise
of due diligence.’” Id. (quoting 28 U.S.C. § 2244(b)(2)(B)(I)).
Due diligence means the petitioner “must show some good
reason why he or she was unable to discover the facts” at an
earlier date. Id. Merely alleging that an applicant “did not
actually know the facts underlying his or her claim does not
pass the test.” Id. Instead, the inquiry focuses on “whether a
reasonable investigation . . . would have uncovered the facts the
applicant alleges are ‘newly discovered.’” Id. (citation omitted).

In rejecting the successive Rule 3.850 motion for post-conviction relief the
state court determined that the “claims raise issues of trial court error that should and
could have been raised on direct appeal . . . .” (Respondent’s Exhibit 12 at 1) A
review of the record supports the state court’s determination that Orona could have
raised the claims on direct appeal. Each claim involves the amending of the
information during trial to coincide with the evidence introduced during trial. The
amending of the information would be apparent on the face of the record and not
based on new evidence undiscoverable before appeal. Orona’s successive Rule 3.850
motion for post-conviction relief fails to meet the requirement for “newly discovered
evidence” and, as a consequence, Orona is entitled to no tolling for that successive
proceeding.

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Second, Orona is entitled to no tolling for his Rule 3.800 motion to correct
illegal sentence, which was filed on July 10, 2013, 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).
Apparently recognizing the possible untimeliness of his application, Orona (1)
asserts “that without a total review of claims set forth in this petition that it would
create a constitutional violation, in that a manifest miscarriage of justice would exist”
and (2) asserts entitlement to a merits review “[w]here a ‘constitutional violation
probably has caused the conviction of one innocent of the crime’ or ‘has probably
resulted in the conviction of one who is actually innocent,’ and ‘thus deserv[es]
habeas corpus relief notwithstanding a procedural default.’” (Doc. 11 at 7)
Orona’s asserted “actual innocence” fails for the same reason that his “newly
discovered evidence” fails. Orona cannot simply assert that he is actually innocent,
he must prove that he is actually innocent, and Orona’s application fails to disclose a
basis for a claim of “actual innocence.”2 Orona bears the burden of proving that he is
actually innocent of the criminal offense. Bousley v. United States, 523 U.S. 614, 623
(1998) (“It is important to note in this regard that ‘actual innocence’ means factual
innocence, not mere legal insufficiency.”). To prove his innocence a petitioner must
present “new reliable evidence — whether it be exculpatory scientific evidence,

2

Orona uses both “miscarriage of justice” and “actual innocence,” terms that are interchangeable.
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trustworthy eyewitness accounts, or critical physical evidence — that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The new “‘evidence of
innocence [must be] 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.’ [Schlup,] 513 U.S. at 316.” McQuiggin, Warden, v. Perkins, 569
U.S. ___,133 S. Ct. 1924, 1936 (2013). The new evidence must show “that more
likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt . . . .” House v. Bell, 547 U.S. 518, 538 (2006).
Orona discloses no evidence of his factual innocence.
Accordingly, the motion to dismiss (Doc. 5) is GRANTED. The application
(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
Orona 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,
Orona 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
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926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would
debate the application’s timeliness, Orona is entitled to neither a COA nor leave to
appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Orona must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on May 18, 2015.

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