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James D. Ford v. Secretary

January 13, 2012

JAMES D. FORD, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS; ATTORNEY GENERAL OF THE STATE OF FLORIDA, RESPONDENTS.



OPINION AND ORDER PURSUANT TO LIMITED REMAND

I. Status

A. Procedural History

Court-appointed counsel Ryan Thomas Truskoski filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 11, 2007 (Doc. #15, Petition), on behalf of Petitioner James D. Ford ("Petitioner" or "Ford"). The Petition challenged Ford's June 3, 1999, state court judgment of conviction for sexual battery with a firearm, aggravated child abuse, and two counts of first degree murder, which was entered in the Twentieth Judicial Circuit, Charlotte County, Florida (case number 97-351-CF) for which Petitioner was sentenced to death. Petition at 1. On September 17, 2009, the Court issued an Opinion and Order that dismissed the Petition as untimely pursuant to 28 U.S.C. § 2244 (Doc. #23, the "September 2009 Order"). On October 30, 2009, the United States Court of Appeals for the Eleventh Circuit denied Petitioner a certificate of appealability in case number 09-14829 (Doc. #29). Petitioner filed a petition for writ of certiorari with the United State Supreme Court. On June 21, 2010, the Supreme Court, in case number 09-7493, vacated the Eleventh Circuit's denial of a certificate of appealability and remanded "for further consideration in light of Holland v. Florida, 560 U.S. ___, 130 S.Ct. 2549 (2010)." See Eleventh Circuit's November 24, 2010 Order (Doc. #38). Accordingly, the Eleventh Circuit remanded this case back to this Court for the "limited purpose of conducting further proceedings and fact-finding - - including, if necessary, an evidentiary hearing - - consistent with the opinion and judgment of the Supreme Court in Holland. Id. at 2. To address this issue, the Court issued a Show Cause Order to Petitioner pursuant to the limited remand. See December 8, 2010 (Doc. #41). In particular, the Court directed newly appointed counsel, Martin J. McClain, to identify whether "sufficient facts exist which would entitle Petitioner to equitable tolling." Id. Additionally, Petitioner was ordered to submit any evidence in support of his factual allegations that support the doctrine of equitable tolling. Id.

B. Petitioner's Response

After being granted an extension of time, Petitioner filed a "Response to This Court's Order to Show Cause" on April 11, 2011 (Doc. #44, "Petitioner's Response"). Petitioner did not attach any exhibits in connection with his Response. See generally Id.

Petitioner concedes that Ford's conviction became final on May 28, 2002 and, under the anniversary triggering date, Ford had until May 28, 2003, to file a timely Petition. Petitioner's Response at 2, ¶2. However, contrary to Petitioner's previous recognition that the Petition is untimely,*fn1 Petitioner now contends that under the Supreme Court's recent decision in Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278 (2011), the instant Petition should be deemed timely filed. Id. at 2-7. In particular, Petitioner cites the Wall decision for the proposition that a formal motion for post-conviction relief does not need to be filed to toll the federal limitations period. See generally Id. Consequently, Petitioner argues that the Court's finding in its September 2009 Order, that the federal limitations was not tolled until May 28, 2003, when Petitioner, represented by counsel, filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, is in error. Id. Instead, relying upon the Wall decision, Petitioner proposes that Florida's statutorily mandated "collateral review process" tolls the federal limitations period, as opposed to the formal filing of an application for post-conviction relief.*fn2

In the alternative, Petitioner argues that, if the Court finds that the Petition remains untimely, Ford should be entitled to equitable tolling. Petitioner requests an evidentiary hearing to the extent that Respondent disputes "Ford's mental impairments" and "to explore" Truskoski's decision to file a motion for appointment of counsel prior to his filing the instant Petition. Id. at 20, ¶28.

C. Respondent's Response

On June 8, 2011, after being granted an extension of time, Respondent filed a "Response to Petitioner's Response to This Court's Order to Show Cause of December 8, 2010" (Doc. #47, "Respondent's Reply"). Initially, Respondent objects to Petitioner's newly raised claim that the Petition is timely filed. Respondent's Reply at 4-7. Respondent also contends that Petitioner is not entitled to an evidentiary hearing regarding Mr. Truskoski's motives for filing a motion for appointment of counsel, because Petitioner's claims are "merely conclusory allegations unsupported by specifics." Id. at 15 (citations omitted). Additionally, Respondent submits that Petitioner has not demonstrated either extraordinary circumstances or reasonable diligence to be entitled to equitable tolling. Id. at 7-14.

Consequently, Respondent seeks an order affirming dismissal of the Petition as untimely. Id. at 15.

II. Applicable Law and Findings of Fact

A. Issues Before the Court

At the outset the Court must first determine what issues are properly before it. The Eleventh Circuit's November 24, 2010 Order, makes clear that this Court is limited to considering whether Petitioner is entitled to equitable tolling under the standard recently recognized by the United States Supreme Court in Holland v. Florida, 130 S. Ct. 3549. Where the Eleventh Circuit issues a limited remand, "the trial court is restricted in the range of issues it may consider on remand." U.S. v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003). Indeed, "[a] vacation of judgment for consideration in light of a particular decision is much more limited in nature than a general vacation by an appellate court, and its effect is not to nullify all prior proceedings." Id. (internal quotations and citations omitted). As noted by the Supreme Court, when a district court acts under an appellate court's mandate, the district court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon a matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.

U.S. v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1562 (11th Cir. 1992)(quoting Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895)).

As a result, the Court need not and, indeed, may not address Petitioner's argument that the Petition is timely filed because federal statutory tolling is triggered by the "collateral review process" under Wall v. Kholi, 131 S. Ct. 1278. Instead, the Court's prior rulings that the Petition is untimely and that the filing of a motion for appointment of counsel does not toll the federal limitations period, as well as the Court's factual determinations as to when Petitioner's conviction became final and the date that Petitioner filed his first post-conviction motion to toll the federal limitation period, remain the law of the case; and, these findings will not be revisited by the Court in this Order. Thus, the only issues properly before the Court are: (1) whether Petitioner has demonstrated extraordinary circumstances; and, (2) whether Petitioner has shown reasonable diligence.

B. Evidentiary Hearing

The Court has carefully reviewed the parties' respective pleadings, as well as the record, and concludes no evidentiary proceedings are required on the issue of equitable tolling. See Schriro v. Landrigan, 550 U.S. 465, 474-475 (2007). Petitioner, who bears the burden of establishing the need for an evidentiary hearing, has not come forward with any specific facts that would entitle him to equitable tolling. Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011). "An evidentiary hearing may be necessary where the material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing where his claims are merely conclusory allegations unsupported by specifics." San Martin v. McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011).

As more fully explained infra, Petitioner does not proffer any evidence, but rather offers only speculation, about Mr. Truskoski's motive behind his filing of a motion for appointment of counsel in this Court. In order to be entitled to an evidentiary hearing, "[t]he allegations must be factual and specific, not conclusory. Conclusory allegations are not enough to warrant a hearing." Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d at 1061.

Here, Petitioner offers no documentation in support of his Response and does not offer any specific facts that would require an evidentiary hearing. Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 763 (11th Cir. 2010). Instead, Petitioner requests an evidentiary hearing "to explore" his conjecture that Mr. Truskoski was self-interested. Because Petitioner offers only speculations as to Mr. Truskoski's alleged motives, the Court finds that an evidentiary hearing is not warranted, and denies Petitioner's request for the same. Schriro, 550 U.S. at 475.

C. The Holland Decision

Prior to the United States Supreme Court decision in Holland, the law in the Eleventh Circuit held that absent a showing of bad faith, dishonesty, mental impairment, or divided loyalty, "attorney negligence could never serve as a basis for equitable tolling." Poveromo v. Fla. Dep't of Corr., No. 11-10985, 2011 WL 5965566 (11th Cir. Nov, 29, 2011)(recognizing Holland rejected Eleventh Circuit's standard for finding equitable tolling based upon an attorney's misconduct). For the first time, the United States Supreme Court in Holland conclusively determined that "the timeliness provision in the federal habeas corpus statute is subject to equitable tolling." Id., 130 S. Ct. at 2560. The Holland Court also reaffirmed that a petitioner is "entitled to equitable tolling" only if he can demonstrate "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" that prevented the timely filing. Id. at 2562-63. However, the Holland Court criticized the Eleventh Circuit's attorney negligence threshold as "too rigid." Id. In particular, the Holland Court opined that the Eleventh Circuit's rule "is difficult to reconcile with more general equitable principles in that it fails to recognize that, at least ...


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