Barnes v. Secretary, Department of Corrections et al

Filing 12

ORDER granting 7 --motion to dismiss; application is dismissed as time-barred; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 3/1/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL R. BARNES,
Applicant,
v.

CASE NO. 8:15-cv-1938-T-23MAP

SECRETARY, Department of Corrections,
Respondent.
/

ORDER
Barnes applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges the validity of his state conviction for one count of sexual battery of a
person under twelve years, for which he is imprisoned for life. Numerous exhibits
(“Respondent’s Exhibit __”) support the response. (Doc. 7) The respondent
correctly argues both that the application is time-barred and that Barnes is not
otherwise entitled to a review on the merits.
The Anti-Terrorism and Effective Death Penalty Act creates a limitation for a
Section 2254 application for the writ of habeas corpus, specifically, 28 U.S.C.
§ 2244(d)(1)(A) states, “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 . . . .” Additionally, under Section 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.”
Barnes’s conviction became final on January 2, 2008.1 The limitation expired
one year later on January 2, 2009, because Barnes began no state post-conviction
proceeding. Twelve days later, on January 14, 2009, Barnes petitioned in the Second
District Court of Appeal and alleged that he was denied the effective assistance of
appellate counsel. But that proceeding afforded Barnes no tolling because, as shown
above, the limitation expired twelve days 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). Similarly, Barnes’s many subsequent challenges could neither
toll nor revive the expired limitation. Recognizing his application’s untimeliness,
Barnes asserts entitlement to both “equitable tolling” to overcome the limitation and
the “actual innocence” exception to the limitation. Barnes proves entitlement to
neither.2
1

Barnes’s direct appeal concluded on October 3, 2007. (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).
2

One of Barnes’s many unsuccessful post-conviction challenges was based on “newly
discovered evidence.” The state court found that the evidence was not “new” because Barnes “was
made aware at trial that the victim was prescribed the medication.” (Doc. 15 at 2) These findings
largely preclude Barnes’s entitlement to a new limitation under Section 2244((d)(1)(D) based on
newly discovered evidence; Barnes asserts no entitlement to a new limitation. Nevertheless, the state
-2-

I.
NO ENTITLEMENT TO
EQUITABLE TOLLING
TO OVERCOME THE LIMITATION
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). Barnes must meet both
requirements, and he controls the first — due diligence — but not the second —
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 of diligence precludes
equity’s operation.” 544 U.S. at 419. To satisfy the second requirement, Barnes
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

court’s findings are relevant to Barnes’s asserted entitlement to “equitable tolling” and to “actual
innocence.” As discussed later, the state court’s findings are entitled to a presumption of correctness.
-3-

extraordinary circumstances. He must further demonstrate that those circumstances
caused him to miss the original filing deadline.”).
Barnes contends that he did not timely acquire the complete state court
record, a delay he attributes to his counsel.3 Barnes’s direct appeal ended on
October 3, 2007. The exhibits attached to Barnes’s reply (Doc. 10) show that a few
weeks later his attorney promptly sent the record to Barnes, but the inmate law clerk
assisting Barnes advised that the first two volumes of the trial transcript were missing.
From the notification to counsel in mid-October, 2007, about the missing volumes
until late April, 2008, Barnes’s former counsel attempted to acquire another copy of
the missing volumes, an attempt that concluded with a letter in which counsel
advised Barnes that the public defender’s office would obtain and send the missing
volumes. Barnes provides no explanation about his attempts to acquire the missing
volumes from late April until mid-December, 2008, which is when he represents that
he received the missing volumes. Under both the respondents’ and the district court’s
calculation, when Barnes received the missing volumes less than a month remained
before January 2, 2009, when the one-year limitation expired.4

3

Barnes labels this argument as “Point Three” in his reply. (Doc. 10 at 11)

4

Barnes had possessed much (if not most) of the record since October, 2007, before the
federal one-year limitation started. Barnes could have timely moved for post-conviction relief in the
state court based on the record he possessed and later supplemented the motion after he received the
missing volumes. Barnes admits to knowing about the federal limitation. In his letter dated January
25, 2008, Barnes advised his former counsel about his “1 year time limitations [under the]
A.E.D.P.A.” (Barnes’s Exhibit 6, Doc. 10 at 32)
-4-

Based on the above facts, Barnes asserts entitlement to equitable tolling
because counsel’s failure to timely provide the record is ineffective assistance. In his
reply (Doc. 10 at 11) Barnes argues against penalizing him for what he characterizes
as counsel’s “gross negligence:”
Petitioner believes that the agency principle should not be
applied to a petitioner whose attorney’s ineffective assistance
during the initial collateral review proceeding impeded his
ability to file a timely 2254 petition. Barring the agency
principle would allow the gross negligence of counsel (i.e.,
ineffective assistance) to be seen as extraordinary circumstance
to lift the procedural bar of an untimely filed 2254 petition.

Contrary to Barnes’s request, principles of agency apply to Barnes’s circumstance.
“Attorney ignorance or inadvertence is not ‘cause’ because the attorney is the
petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and
the petitioner must ‘bear the risk of attorney error.’” Coleman v. Thompson, 501 U.S.
722, 753 (1991). See also Lawrence v. Florida, 549 U.S. 327, 336–37 (2007) (“Attorney
miscalculation is simply not sufficient to warrant equitable tolling, particularly in the
post-conviction context where prisoners have no constitutional right to counsel.”),
and Holland v. Florida, 560 U.S. 631, 656 (2010) (“[O]ur prior cases make it
abundantly clear that attorney negligence is not an extraordinary circumstance
warranting equitable tolling.”).
Even if he could meet the due diligence requirement, which would require
ignoring the April to December delay, for which Barnes provides no explanation,
Barnes fails to show that an extraordinary circumstance caused him to miss the

-5-

deadline. Consequently, Barnes fails to show entitlement to equitable tolling of the
limitation, and the untimely application is not entitled to a review on the merits.
II.
NO ENTITLEMENT TO THE
ACTUAL INNOCENCE
EXCEPTION TO THE LIMITATION
A review of the state’s case against Barnes is necessary to understand his claim
of entitlement to the actual innocence exception to the limitation.5 To summarize,
Barnes contends (1) that a report or a form,6 which he characterizes as new evidence,
shows that the victim was administered medication to treat her seeing imaginary
friends7 and (2) that the prosecutor, contrary to Brady v. Maryland, 373 U.S. 83 (1963),
failed to disclose that the medication was approved to treat schizophrenia.8 As
discussed below, neither of Barnes’s contentions qualifies as “new evidence”
necessary for entitlement to the actual innocence exception to the limitation.
Although Barnes can escape the limitation 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 may pass to assert an
otherwise time-barred or procedurally barred federal claim. Passing through the
5

Barnes asserts no claim of actual innocence as a “free standing” claim, but only as a means
of escaping the limitation’s bar. 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)).
6

“Report” and “form” are used interchangeably by the state court and Barnes. This order
uses the term “report.”
7

Barnes labels this argument as “Point One” in his reply. (Doc. 10 at 5)

8

Barnes labels this argument as “Point Two” in his reply. (Doc. 10 at 8)
-6-

gateway is difficult 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)).
“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998). Although demanding, House v.
Bell, 547 U.S. 518, 538 (2006) (internal citation omitted), explains that the applicant’s
burden is not proving absolute 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
-7-

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).

A.
The Report does not Qualify as “New Evidence”
Under the Actual Innocence Exception to the Limitation
Background:
Barnes was charged with three counts of sexual battery of a person under
twelve. A jury found Barnes guilty of one count of sexual battery and two counts of
the lesser-included charge of battery. The victim was the daughter of Barnes’s
“live-in” girlfriend of eight years. During trial questions arose about the victim’s
mental health, her seeing a counselor, and her taking medication. After an
evidentiary hearing in one of Barnes’s post-conviction proceedings, the state court
found the following (Respondent’s Exhibit 11 at 1–2):
Defendant testified that he learned of the victim’s mental health
treatment during the trial. When he learned this information, he
wanted to restart the trial. Every discussion that was had was
done on the record. Trial counsel never discussed the issue with
Defendant personally and his opinion was never sought.
Defendant testified that he lived with the victim for eight years
prior to the charges being brought against him. The child never
mentioned that she had imaginary friends and she was not
receiving mental health treatment during this time.
[The prosecutor] testified that she was the State Attorney
assigned to this case. The day before trial, she learned that the
victim was going to counseling and that she was on an
Attention Deficit Disorder medication. [The prosecutor] did not
believe that she needed to disclose the information to the
-8-

defense as it had no bearing on the case. Both the mother and
victim had been deposed prior to trial and the mother was listed
as a defense witness. The mother brought the issue of the
imaginary friends to the defense’s attention. [The prosecutor]
did not know of the imaginary friends before the defense
attorney. The victim at all times appeared to be a competent
witness. . . . The mother said that the counselor was seen to
help the victim focus better and that the medication helped the
child. By the time the information came up at trial, the State
had already rested its case.

A year later Barnes filed another motion for post-conviction relief, which he
contended was based on newly discovered evidence. The post-conviction court
denied relief without conducting an evidentiary hearing with the following findings
(Respondent’s Exhibit 15 at 1–3) (citation to trial transcript omitted):
The Defendant’s current Motion raises [a claim of n]ewly
discovered evidence that the victim was treated for symptoms
including seeing imaginary ghosts, agitation, aggression, and
difficulty sleeping[.]
To obtain a new trial based on newly discovered evidence, a
defendant must meet two requirements: first, the evidence must
not have been known by the party or counsel at the time of
trial, and the defendant or defense counsel seemingly could not
have known of it by the use of diligence. Second, the newly
discovered evidence must be of such a type that it would
probably produce an acquittal on retrial. See Jones v. State,
709 So. 2d 512, 521 (Fla. 1998).
The alleged newly discovered evidence is a form indicating the
victim was prescribed Geodon (ziprasidone) on August 3, 2006.
The Defendant’s own Motion cites to portions of the trial
transcript which show he was made aware at trial that the
victim was prescribed this medication, and the symptoms for
which they were prescribed. Furthermore, a portion of the trial
transcript not referenced in Defendant’s Motion shows
testimony by the victim’s mother informed the Defendant at the
time of trial why the victim was prescribed the medication:

-9-

Q. Now, you may not know specifically what
she’s on, but do you know if she’s taking any
medications, psychotropic medication?
A. Yeah. She’s taking Geodon.
Q. And what is that?
A. It is —
Q. As best you know.
A. It helps her with her mood swings. It helps her
calm down. She’s not as mouthy. She’s not as
rude and disrespectful. She sleeps better at night,
through the night rather than getting up. It helps
her focus on her school work. It helps her focus
on home, rather than just doing something one
minute and then turning around and doing
something else. She gets tasks done.
Q. Does it assist her in seeing things that — with
her problem of seeing things that aren’t there?
A. Yes, sir. Yes, sir. It helps her not see her
friends, Kodax and them. She’s not mentioned
them since she’s got on this medication.
Q. Are there any other mental health problems
that you see in her?
A. They’ve diagnosed her with ADD.
This portion of the record directly refutes the Defendant’s
claim. The Defendant appears to allege that although this
information was first learned during the trial, it would still meet
the definition of newly discovered evidence as the trial had
already been in progress. This is also incorrect. The trial was
held in August of 2006. More than two years have elapsed from
this date which is not only the time within which the Defendant
could have obtained the information, but as the transcript
shows is the time the Defendant actually learned the
information. Obtaining the report years later, which only
confirms what was learned earlier, does not meet the definition
of newly discovered evidence.

- 10 -

Analysis:
Barnes’s “new evidence” is a report that showed the victim was prescribed
Geodon (ziprasidone), apparently to “help her stay focused” and “not see her
[imaginary] friends.” Barnes contends that the report is evidence that the victim
could have fabricated her allegation of sexual battery. The post-conviction court
found both that the victim’s taking Geodon was disclosed during trial testimony and
that Barnes “was made aware at trial that the victim was prescribed this medication
and the symptoms for which they were prescribed.” As 28 U.S.C. § 2254(e)(1)
explains, “a determination of a factual issue made by a State court shall be presumed
to be correct [and the] applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” Barnes presents no basis for
rejecting the state court’s finding. As a consequence, the report, which corroborated
the previously-disclosed fact, is not “new reliable evidence . . . that was not presented
at trial.” Schlup v. Delo, 513 U.S. at 324. Moreover, the report is not compelling
evidence that, if presented to the jury, meets Schlup’s standard “that more likely than
not any reasonable juror would have reasonable doubt” about Barnes’s guilt.
B.
The Alleged Brady Violation does not Qualify as “New Evidence”
Under the Actual Innocence Exception to the Limitation
Background:
Barnes contends that the prosecutor violated Brady by failing to disclose that
the victim was prescribed Geodon to treat schizophrenia. The post-conviction court

- 11 -

denied relief without conducting an evidentiary hearing with the following findings
(Respondent’s Exhibit 15 at 3) (citation to trial transcript omitted) (brackets original):
The Defendant alleges the Assistant State Attorney purposely
withheld the exculpatory evidence that Geodon was prescribed
to the victim for schizophrenia. First, the Defendant has failed
to allege the victim was in fact diagnosed with schizophrenia,
and appears to make this claim based on his observations of the
victim’s symptoms. Second, the Defendant attaches to his
Motion a print out of a website, WebMD, indicating the uses
for Geodon in an attempt to show the Assistant State Attorney
lied to the Court in stating she had only learned the day prior
that this medication was prescribed for something other than
ADHD. The Defendant’s “Exhibit B” is a representation of the
WebMD webpage for Geodon as it existed on July 19, 2013. It
is in no way an indication as to the content contained on that
webpage in or around August of 2006. Third, the victim’s
mother testified that she had informed the Assistant State
Attorney that the victim was taking the medication for ADD.
Finally, this claim is similar to claim 5 of Defendant’s first
Motion for Post Conviction Relief. In the order denying that
claim, this Court specifically concluded, after holding an
evidentiary hearing, that “[t]he Court does not find that the
State committed a discovery violation or that Defendant’s
ability to properly prepare for trial was hindered.”

Analysis:
Barnes’s “new evidence” is that the prosecutor “failed to disclose material
exculpatory evidence to the defense during trial that the medication ‘Geodon’ was
also used to treat schizophrenia . . . .” (Doc. 10 at 8) The post-conviction court
found that Barnes failed to prove (1) that the victim was diagnosed with
schizophrenia, (2) that the prosecutor failed to disclose that the medication was used
to treat schizophrenia, and (3) that the prosecutor had lied about the purpose for the
victim’s taking the medication. The state court’s finding that the victim’s taking
Geodon was disclosed during trial testimony defeats Barnes’s contention that the
- 12 -

prosecutor violated Brady and, moreover, that the alleged Brady violation is “new
evidence” that qualifies for the actual innocence exception to the limitation.
Accordingly, the respondents’ motion to dismiss (Doc. 7) is GRANTED.
Barnes’s 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
Barnes 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, Barnes 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 timebarred, Barnes cannot meet Slack’s prejudice requirement. 529 U.S. at 484. Finally,
because Barnes is not entitled to a COA, he is not entitled to appeal in forma pauperis.

- 13 -

Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Barnes must pay the full $505 appellate filing fee unless
the circuit court allows Barnes to appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 1, 2017.

- 14 -