Perkowski v. Florida Department of Corrections

Filing 23

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS. The Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody [ECF No. 1] is DISMISSED.A certificate of appealability is DENIED. Because there are no issues with argua ble merit, an appeal would not be taken in good faith, and thus, Petitioner is not entitled to appeal in forma pauperis.The Clerk of Court is directed to CLOSE this case. Signed by Judge Beth Bloom on 5/17/2023. See attached document for full details. (nan)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-cv-61042-BLOOM
JAMES ALLEN PERKOWSKI,
v.

Petitioner,

FLORIDA DEPARTMENT OF
CORRECTIONS,
Respondent.
_____________________________/
ORDER ON PETITION FOR
WRIT OF HABEAS CORPUS
THIS CAUSE is before the Court upon Petitioner, James Allen Perkowski’s pro se
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF
No. [1]. Petitioner challenges the constitutionality of his state convictions and sentences on charges
of armed kidnapping, armed robbery, and armed burglary in the Seventeenth Judicial Circuit for
Broward County. (See generally id.).
Respondent Florida Department of Corrections filed a Response, ECF No. [14], an Index
to Appendix, ECF No. [15], with exhibits, ECF Nos. [15-1]–[15-3], 1 and a Notice of Filing
Transcripts, ECF No. [16], with attached transcripts, ECF Nos. [16-1]–[16-3]. 2 Petitioner
thereafter filed a Reply, ECF No. [18], and Respondent filed a Notice of Supplemental Authority,
ECF No. [20]. The Court has carefully considered the parties’ written submissions, the record, and

Volume I, ECF No. [15-1], contains Exhibits 1–32, Volume II, ECF No. [15-2], contains Exhibits 33–57,
and Volume III, ECF No. [15-3], contains Exhibits 58–83.

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Volume I, ECF No. [16-1] contains transcripts from Petitioner’s motion to suppress, trial, and sentencing
hearings in 1991, Volume II, ECF No. [16-2], contains the transcript of Petitioner’s 2004 resentencing
hearing, and Volume III, ECF No. [16-3], contains the transcript of Petitioner’s 2009 resentencing hearing.

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applicable law. For the following reasons, the Petition is dismissed.
I. BACKGROUND
On September 5, 1991, a Broward County jury found Petitioner guilty of two counts of
armed kidnapping (Counts 1, 2), two counts of armed robbery (Counts 3, 4), and one count of
armed burglary (Count 5). See ECF No. [15-1] at 11–12. 3 Petitioner was sentenced to 40 years’
imprisonment on Counts 1 and 2 and consecutive life imprisonment with a mandatory minimum
of 15 years on the remaining counts (Counts 3-5), these latter sentences imposed as habitual violent
felony offender (“HVFO”) sentences. See id. at 14-30.
Petitioner appealed his convictions and sentences arguing that he could not be classified as
a HVFO based on crimes committed after commission of the present offenses, but for which he
was convicted before the instant sentencing. See id. at 35–49. He also argued that the trial court
could not impose consecutive mandatory sentences under the Habitual Offender Act for offenses
which arose from the same criminal incident. See id. The Fourth District Court of Appeal (“Fourth
DCA”) in a written opinion disagreed with Petitioner as to the habitualization but agreed the trial
court could not impose consecutive mandatory sentences and vacated Petitioner’s sentence and
remanded for resentencing. See Perkowski v. State, 605 So. 2d 498, 499 (Fla. 4th DCA 1992)
(hereinafter, “Perkowski I”). The Fourth DCA also certified a question to the Florida Supreme
Court regarding the habitualization issue. 4 Mandate issued on September 18, 1992. See ECF No.
[15-1] at 72. On February 12, 1993, Petitioner was resentenced, in accordance with the Fourth

The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
of all court filings.

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The Fourth DCA certified the following question: “IS HABITUAL OFFENDER CLASSIFICATION
PERMITTED WHERE THE PREDICATE OFFENSE FOR WHICH APPELLANT WAS PREVIOUSLY
CONVICTED OCCURRED SUBSEQUENT TO THE COMMISSION OF THE SUBJECT OFFENSE?”
Id. at 500.

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DCA’s mandate, to concurrent sentences. See id. at 74.
Petitioner then sought to invoke the discretionary jurisdiction of the Florida Supreme
Court. See id. at 76–79. After briefing by the parties, the Florida Supreme Court issued a written
opinion on March 25, 1993, adopting the Fourth DCA’s opinion under review as its own and
answering the certified question in the affirmative. See Perkowski v. State, 616 So. 2d 26 (Fla.
1993) (hereinafter, “Perkowski II”). Mandate issued April 16, 1993. See ECF No. [15-1] at 123.
On May 7, 1993, the Fourth DCA, upon mandate from the Florida Supreme Court, remanded the
case for resentencing, which the trial court had already done. See id. at 74, 125.
i.

Petition Alleging Ineffective Assistance of Appellate Counsel

On February 23, 2001, Petitioner filed a pro se petition for writ of habeas corpus alleging
ineffective assistance of appellate counsel in the Fourth DCA. See id. at 127. The Fourth DCA
dismissed the petition as untimely. See id. at 179. Petitioner moved for rehearing, see id. at 181,
which was denied. See id. at 181. Petitioner then sought to invoke the discretionary jurisdiction of
the Florida Supreme Court. See id. at 188. The Florida Supreme Court treated the notice to invoke
as a petition for writ of mandamus and denied the petition. See id. at 200–05. Petitioner moved for
rehearing, see id. at 207, which was denied. See id. at 216.
ii.

3.850 Motion for Postconviction Relief

On March 17, 2001, Petitioner filed a motion for postconviction relief under Florida Rule
of Criminal Procedure 3.850 (“3.850 Motion”). See id. at 218. Petitioner argued the untimeliness
of the motion should be excused because “he was incarcerated out of state, without access to the
needed materials, such as law books, the rules of court, the rules of criminal procedure to properly
present and argue the claims alleged[.]” Id. at 221–22. 5 He also raised three claims of ineffective
Petitioner explained that he was incarcerated in Pittsburg, Pennsylvania awaiting disposition of criminal
charges when the Broward County Sheriffs Office obtained a warrant against him and “transferred [him]
5

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assistance of counsel and attacked the habitual offender sentences imposed on the grounds that
improper or insufficient predicate offenses were utilized. See id. at 218–47. The State filed a
response arguing the motion should be denied on the merits. See id. at 261. Petitioner thereafter
filed a reply. See ECF No. [15-2] at 2. The State was ordered to respond to Petitioner’s reply, to
which it did on December 5, 2001, relying on its earlier response. See id. at 13. On November 20,
2001, the trial court denied the motion for the reasons stated in the State’s response. See id. at 18.
On December 4, 2001, Petitioner filed a motion for rehearing (“3.850 rehearing motion”). See id.
at 20. The motion remained pending until it was denied in 2020.
iii.

3.800(a) Motion to Correct Illegal Sentence and Resentencing

On August 30, 2004, Petitioner filed a motion to correct illegal sentence under Florida Rule
of Criminal Procedure 3.800(a) (“First 3.800(a) Motion”) raising claims regarding the illegality of
his habitual offender sentences (Counts 3-5) as well as scoresheet errors concerning the improper
inclusion of the counts for which he was habitualized as “additional offenses,” and the improper
inclusion of offenses that occurred after the commission on the instant offenses as “prior record.”
See id. at 27–37. The State contended the claims regarding his habitual offender sentences were
meritless but agreed that the scoresheet on Counts 1 and 2 should be corrected to remove the counts
for which he was habitualized as “additional offenses.” See id. at 77–81. The trial court denied
Petitioner’s motion as to the habitual offender sentences and granted resentencing on Counts 1 and
2. See id. at 83.
On December 16, 2004, Petitioner was resentenced on Counts 1 and 2 to forty years with
a mandatory minimum of three years, to run concurrent to his sentences on Counts 3-5. See id. at

back to Broward County to face the charges that are the subject of this petition.” Id. at 222. Thereafter, he
“was released to the U.S. Marshals for transportation back to Pittsburgh to again finish his out of state
sentence.” Id. at 222-23.

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85–95. Thereafter, on January 10, 2005, the trial court entered a corrected sentence order to reflect
the mandatory minimum provision. See id. at 97–98.
On January 4, 2005, Petitioner appealed the resentencing. See id. at 100. On appeal,
Petitioner again raised a challenge to his habitual offender sentence; a claim that the trial court
erroneously denied jail credit for time he spent in prison out of state; and a scoresheet error based
on inclusion of points for convictions of crimes committed after the instant offenses. See id. at
105–26. The State filed an answer brief. See id. at 128–39. The Fourth DCA, in a written opinion
on February 22, 2006, affirmed as to the first two issues but reversed as to scoresheet error on
Counts I and II and remanded with “directions to impose a sentence without points from
convictions for offenses occurring after the offenses in this case.” Perkowski v. State, 920 So. 2d
836, 838 (Fla. 4th DCA 2006) (hereinafter “Perkowski III”).
iv.

Second 3.800(a) Motion

On February 28, 2005, Petitioner filed a second 3.800(a) motion claiming his habitual
violent felony offender designation was illegal. See ECF No. [15-2] at 146–55. The motion was
denied on March 24, 2014. See id. at 168–69. Petitioner did not appeal.
v.

2009 Resentencing

On November 5, 2009, Petitioner was resentenced, pursuant to the Fourth DCA’s mandate
in Perkowski III, on Counts 1 and 2 to twelve years to run concurrent to the remaining counts. See
id. at 171–87. Petitioner appealed this resentencing. See id. at 189. After failing to timely file an
initial brief, the Fourth DCA ordered Petitioner to show cause why the appeal should not be
dismissed for lack of prosecution. See id. at 194. Receiving no response, the Fourth DCA sua
sponte dismissed the appeal for lack of prosecution on June 23, 2010. See id. at 196.

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vi.

Third 3.850(a) Motion

On May 6, 2019, Petitioner filed a third Rule 3.800(a) motion. See ECF No. [15-3] at 2.
After considering the State’s response, see id. at 18, the state court denied Petitioner’s motion. See
id. at 86. Petitioner appealed, and the Fourth DCA per curiam affirmed without written opinion.
See Perkowski v. State, 284 So. 3d 510 (Fla. 4th DCA 2019). Petitioner moved for rehearing, see
ECF No. [15-3] at 119, and his request was denied. See id. at 130. Mandate issued December 6,
2019. See id. at 132.
vii.

3.850 Rehearing Motion and Appeal

In June 2002 and February 2003, Petitioner filed notice of inquiries regarding the 3.850
rehearing motion. See id. at 134–39. Then, in January 2010, Petitioner filed a “motion for judgment
on the pleadings” requesting a ruling on his 3.850 rehearing motion. See id. at 142. The state court
in February 2010 dismissed the motion because Petitioner was in the process of appealing his 2009
resentencing. See id. at 146.
On February 19, 2014, Petitioner filed another motion requesting a ruling. See id. at 148.
The state court ordered the State to respond to the 3.850 rehearing motion. See ECF No. [15-2] at
168. The State did not respond.
On February 19, 2020, Petitioner filed a motion requesting ruling. See ECF No. [15-3] at
153. On November 4, 2020, the state court again ordered the State to respond to the 3.850 rehearing
motion. See id. at 159. After receiving the State’s response, see id. at 162, the state court denied
Petitioner’s 3.850 rehearing motion. See id. at 167. Petitioner appealed, and on July 1, 2021, the
Fourth DCA per curiam affirmed without written opinion. See Perkowski v. State, 324 So. 3d 487
(Fla. 4th DCA 2021). Petitioner moved for rehearing, see ECF No. [15-3]. at 234, and his request
was denied on September 1, 2021. See id. at 239. Mandate issued on September 24, 2021. See id.

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at 241.
The instant petition was filed on May 30, 2022. 6
II. DISCUSSION
A.

Timeliness

i.

The Petition is Untimely.

Respondent argues that the Petition is time-barred. See ECF No. [14] at 9. Petitioner
counters that “[a]s nothing was filed after the September 1, 2021 ruling the AEDPA clock began
running on that date and has continued running until the date of filing this Petition in May 2022.
A little over (8) months of the Petitioner[’]s (12) month AEDPA [time period] has therefore
elapsed rendering this petition timely.” ECF No. [1] at 44. For the following reasons, the Court
agrees with Respondent that the Petition is untimely.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides a “[one]–year
period of limitation . . . [for] an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The limitations period runs
from the latest of:
(A) the date on which the judgment 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 by 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.
“Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is delivered
to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (citations
omitted).
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Id. The limitations period is tolled for “[t]he time during which a properly filed application for
State post-conviction or other collateral review” is pending. Id. § 2244(d)(2).
Petitioner does not assert that an unconstitutional State-created impediment to filing his
federal habeas Petition existed, that he bases his claims on a right newly recognized by the United
States Supreme Court, or that the facts supporting his claims could not have been discovered
through the exercise of due diligence. See generally ECF No. [1]. Accordingly, the statute of
limitations is measured from the sole remaining trigger, which is the date Petitioner’s “judgment”
became final. 28 U.S.C. § 2244(d)(1)(A).
For convictions finalized prior to enactment of AEDPA, a “reasonableness period” of one
year was applied following one year of enactment of AEDPA on April 24, 1996 (i.e., until April
24, 1997). See Charest v. King, 155 F. App'x 494, 495 (11th Cir. 2005) (citing Wilcox v. Fla. Dept.
of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998)). The date of finality for purposes of the limitations
period is the conclusion of the appeal process or the expiration of the time for seeking review. See
Jimenez v. Quarterman, 555 U.S. 113, 121 (2009).
As stated, the AEDPA’s one-year statute of limitations, including the “reasonableness
period,” is tolled while properly filed postconviction or collateral proceedings are pending. See
Lovasz v. Vaughn, 134 F.3d 146, 149 (3rd Cir. 1998); Fields v. Johnson, 159 F.3d 914, 916 (5th
Cir. 1998). Time elapsing while postconviction proceedings are pending shall not count toward
the one-year period of limitation. See 28 U.S.C. §2244 (d)(2). The AEDPA clock and limitations
period resumes running when the state’s highest court issues its mandate disposing of the motion
for postconviction relief. See Lawrence v. Florida, 549 U.S. 327, 331–32 (2007). To toll the
limitations period, the state motion for postconviction relief must be filed before the limitation
period expires. See Tinker v. Moore, 255 F. 3d 1331, 1332 (11th Cir. 2001). “[T]o qualify for
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statutory tolling, a collateral pleading must ‘request[ ] . . . judicial review of a judgment and . . .
provide a state court with authority to order relief from a judgment.’” Danny v. Sec’y, Fla. Dept.
of Corr., 811 F.3d 1301, 1304 (11th Cir. 2016) (quoting Wall v. Kholi, 562 U.S. 545, 554 n. 4
(2011)).
Here, because Petitioner was originally convicted and sentenced in 1991 and subsequently
resentenced in 2009, there are two limitations periods to consider. See 28 U.S.C. § 2244(d)(1)(A).
First is the period prior to the enactment of the AEDPA (“pre-AEDPA”) applicable to his original
1991 convictions and sentences and the second is the period after Petitioner’s resentencing in 2009.
A review of either time frame reveals that the instant Petition is untimely.
ii.

Pre-AEDPA

As discussed, Petitioner was sentenced by the trial court on October 25, 1991. His original
conviction and sentence became final in 1993, following the Florida Supreme Court’s mandate —
prior to the effective date of the AEDPA. Therefore, he had until April 24, 1997, to file a timely
federal habeas petition. See Charest, 155 F. App’x at 495. However, Petitioner filed nothing in
state court until his petition alleging ineffective assistance of appellate counsel on February 23,
2001, see ECF No. [15-1] at 127, 1,401 days past the expiration of the “reasonableness period.”
Moreover, the state petition alleging ineffective assistance of appellate counsel did not toll
Petitioner’s time because a state petition filed after expiration of the federal limitations period does
not toll the period. See Tinker, 255 F. 3d at 1332; see also Pickett v. Butler, 2022 WL 1051900, at
*3 (M.D. Ala. Mar. 21, 2022), report and recommendation adopted, 2022 WL 1050907 (M.D.
Ala. Apr. 7, 2022) (habeas petitioner who was convicted prior to the enactment of AEDPA could
not use state postconviction petitions filed after the April 24, 1997, expiration of the limitations
period to revive the statute of limitations). For the same reason, Petitioner’s 3.850 proceedings

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initiated in 2001, even though they were not concluded until 2021 after the Fourth DCA affirmed
the summary denial of the 3.850 motion, did not toll the statute of limitations because the period
had already long since expired. 7 See Tinker, 255 F. 3d at 1332; Gorby v. McNeil, 530 F. 3d 1363,
1368 (11th Cir. 2008) (holding that a federal court is to make an independent assessment of the
timeliness of a state postconviction motion even if the state court denied the motion on the merits);
Jones v. Sec’y, Fla. Dep’t of Corr., 906 F. 3d 1339 (11th Cir. 2018) (State court does not have to
explicitly make timeliness ruling before federal court can find that post-conviction motion was
untimely and thus not “properly filed” for purposes of tolling one-year statute of limitations on
federal habeas claims.).
iii.

2009 Resentencing

Turning to the time frame after Petitioner’s 2009 resentencing, the instant Petition is
likewise untimely. The Eleventh Circuit recently clarified that “not every action that alters a
sentence necessarily constitutes a new judgment[.]” Osbourne v. Sec’y, Fla. Dep’t of Corr., 968
F.3d 1261, 1265 (11th Cir. 2020). Indeed, the Eleventh Circuit has expressly rejected the argument
that “any order that alters a sentence necessarily constitutes a new judgment[.]” Patterson v. Sec’y,
Fla. Dep’t of Corr., 849 F.3d 1321, 1326 (11th Cir. 2017) (en banc). For example, “when a court
corrects a clerical mistake, no new judgment arises for purposes of Federal Rule of Appellate
Procedure 4(B)(1)(A).” Id. (citing United States v. Portillo, 363 F.3d 1161, 1165–66 (11th Cir.
2004).
In Petitioner’s 2009 resentencing, the court merely corrected a clerical mistake. While the
Court signed a new sentencing order, see ECF No. [15-2] at 171–77, the 2009 Judgment that issued
Even giving Petitioner the benefit of the doubt and starting the limitations period on August 8, 1999, the
date he alleges he was returned to Florida to serve his sentence, see ECF No. [1] at 44, neither Petitioner’s
February 2001 state habeas petition nor the March 2001 3.850 motion would have tolled the time as they
were not filed within one year of his return to Florida. See Tinker, 255 F. 3d at 1332.
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was not a “new judgment” because it merely corrected the offense statute numbers. See id. at 182.
In fact, the 2009 Judgment states, “Corrected as to Statute #’s.” Id. It also lists the original Assistant
State Attorney, defense counsel, and court reporter from 1991. Compare ECF No. [15-1] at 11
with ECF No. [15-2] at 182. The corrected judgment also noted that the imposition of sentence
was deferred until October 11, 1991. See id. In sum, the limitations period was not restarted. See
Bishop v. Sec’y, Fla. Dep’t of Corr., No. 3:13CV118/MCR/EMT, 2013 WL 5596776, at *4 (N.D.
Fla. Oct. 11, 2013) (collecting cases) (“Other courts which have addressed this narrow issue appear
to have uniformly held that when a court corrects a clerical error in a criminal judgment, the
AEDPA’s one-year limitations period does not begin anew when the court corrects the clerical
error.”). Therefore, the instant Petition filed thirteen years after Petitioner’s resentencing is
untimely. See 28 U.S.C. § 2244(d)(1)(A). Moreover, Petitioner’s 3.850 motion could not have
tolled this limitations period because it was time-barred under the first limitations period as
discussed previously.
iv.

Equitable Tolling is Not Warranted

Nevertheless, “[i]f a defendant files a petition for a federal writ of habeas corpus beyond
the one-year limitation period, the district court may still review an untimely petition filed by a
petitioner entitled to equitable tolling.” Sam Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir.
2011). A federal habeas petitioner “is entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing” of his habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010).
Petitioner does not argue that he is entitled to equitable tolling. See generally ECF Nos.
[1], [18]. In his Reply, Petitioner states, “that equitable tolling is not necessary as his petition was
timely filed[.]” ECF No. [18] at 4. As discussed, the petition is untimely, and the Court concludes

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that no grounds for equitable tolling exist.
B.

Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for an
evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corrs., 647 F.3d 1057, 1060 (11th Cir.
2011). “[I]f the record refutes the applicant’s factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550
U.S. 465, 474 (2007). Here, the pertinent facts of the case are fully developed in the record — as
explained, Petitioner is time-barred, and thus precluded, from obtaining habeas relief. Because
the Court can “adequately assess [Petitioner]’s claim[s] without further factual development[,]”
Petitioner is not entitled to an evidentiary hearing. Turner v. Crosby, 339 F.3d 1247, 1275 (11th
Cir. 2003).
C.

Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his petition for a writ of
habeas corpus has no absolute entitlement to appeal and must obtain a certificate of appealability.
See 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). A certificate of
appealability shall issue only if a petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, a district court dismisses a petition
based on procedural grounds, a petitioner must further demonstrate that reasonable jurists “would
find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Upon consideration of the record, the Court concludes that Petitioner
has not done so, and thus there is no basis to issue a certificate of appealability.

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III. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. The Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State
Custody [ECF No. 1] is DISMISSED.
2. A certificate of appealability is DENIED. Because there are no issues with arguable
merit, an appeal would not be taken in good faith, and thus, Petitioner is not entitled to
appeal in forma pauperis.
3. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on May 17, 2023.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
James Allen Perkowski
706768
Avon Park Correctional Institution
Inmate Mail/Parcels
8100 Highway 64 East
Avon Park, FL 33825
PRO SE

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