United States District Court, M.D. Florida, Fort Myers Division
ANIBAL S. MAYOR, Petitioner,
FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Anibal S. Mayor's
Petition for Habeas Corpus Relief Pursuant to 28 U.S.C.
§ 2254 (Doc. 1), filed on July 22, 2016. The Respondent,
Secretary of the Department of Corrections, filed a Limited
Response in Opposition (Doc. 13) on January 20,
2017. Mayor was directed by Court Order (Doc. 14) to
file a reply brief on or before March 3, 2017. No reply has
been filed. For the following reasons, Mayor's Petition
is dismissed with prejudice as untimely.
August 14, 2008, a grand jury for the Circuit Court of the
Twentieth Judicial Circuit in and for Lee County Florida
indicted Mayor for first-degree murder, a capital felony, and
robbery with a deadly weapon a first-degree felony punishable
by life (Ex. 001). On motion of defense counsel, the court
appointed experts to evaluate Mayor for competency to stand
trial and with regard to his sanity at the time of the
offense. (Ex. 002, 2a). After the evaluations (Ex. 003),
Mayor was deemed competent to stand trial. (Ex. 3a, 3b). In
June 2010, Mayor's three-day jury trial took place, and
he was found guilty as charged in the Indictment (Ex. 3c).
sentencing, Mayor filed a motion for new trial, alleging
newly discovered evidence. On September 14, 2010, a hearing
was held on the motion to re-open. (Ex. 5a). After hearing
testimony from two witnesses, the trial court denied
Mayor's motion to re-open the case finding that the
witnesses lacked credibility. (Ex. 5a). Mayor was sentenced
to life imprisonment and timely filed a notice of appeal.
(Ex. 5a). Judgment was entered on September 24, 2010. (Ex. 6,
September 28, 2012, the Second District Court of Appeals
per curiam affirmed the trial court's judgment
and sentence. Mayor v. State, So.3d 417 (Table)
(Fla. 2d DCA 2012). Mayor then filed a pro se motion
for extension of time to file a motion for rehearing (Ex.
11), but that motion was stricken by the court, as Mayor
remained represented by appellate counsel (Ex. 12).
Mayor's counsel then filed a motion for rehearing and
requesting a written opinion (Ex. 13), which the state
appellate court denied on November 26, 2012. (Ex. 14). The
appeals court issued mandate on December 26, 2012. (Ex. 15).
August 8, 2013, Mayor filed a pro se motion to
vacate and set aside his judgments of conviction and
sentences pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure. Mayor asserted four grounds for relief:
(1) counsel failed to investigate and call to testify at
trial multiple witnesses favorable to his defense; (2)
counsel failed to object and move for a mistrial when the
government impermissibly argued facts not in evidence during
closing argument; (3) counsel failed to ensure that the
Defendant was evaluated for competence to proceed to trial
under the correct Florida Statute; and (4) cumulative errors
of counsel were sufficient to undermine confidence in the
outcome of the trial. (Ex. 16, at 16-17). The State issued a
response on November 27, 2013. Mayor did not file a reply
brief with the post-conviction court. On April 10, 2014, the
post-conviction court denied each of Mayor's claims. The
Second District Court of Appeals affirmed the post-conviction
court's denial on April 15, 2015. The Second District
Court of Appeals issued mandate on May 11, 2015. (Ex. 21).
signed the instant Petition and provided it to prison
officials for mailing on June 17, 2016. The Petition was
docketed with this Court on June 22, 2016. The Respondent
filed a response on January 20, 2017. Three days later, this
Court issued an Order (Doc. 14) directing Mayor to
file his reply to the response by March 3, 2017. In that
Order, the Court cautioned Mayor that his Petition could be
dismissed without further notice should he fail to file a
argues that Mayor's Petition should be dismissed as
untimely filed. Mayor filed no response and the time to do so
has expired. Mayor's Petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104- 132, 110 Stat. 1214
(1996). The AEDPA created a limitation period for petitions
for writ of habeas corpus filed pursuant to 28 U.S.C. §
2254. “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.”
Hawks v. Sec'y, De't of Corr., No.
8:13-CV-2505-T-30AEP, 2014 WL 445991, at *1 (M.D. Fla. Feb.
4, 2014). “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.” Id . §
November 26, 2012, the appeal court denied Mayor's motion
for rehearing on direct appeal. Thus, Mayor's conviction
became final on February 25, 2013, after the ninety-day
period for petitioning for certiorari review expired.
See Butler v. Sec'y, Florida Dep't of
Corr., 621 F.App'x 604, 606 (11th Cir. 2015),
cert. denied sub nom. Butler v. Jones, 137
S.Ct. 142 (2016) (holding that “Sup. Ct. R. 13.3
provides that this period runs from the date of entry of the
judgment or order sought to be reviewed, and not from the
issuance date of the mandate. . . . But if a petition for
rehearing is timely filed in the lower court by any party,
the time to file the petition for a writ of certiorari for
all parties (whether or not they requested rehearing or
joined in the petition for rehearing) runs from the date of
the denial of the petition for rehearing . . .”)).
164 days passed that were not tolled from the February 25,
2013 final conviction date to the time Mayor filed his Rule
3.850 post-conviction motion, on August 8, 2013. Once his
Rule 3.850 post-conviction motion was filed, the time to file
his habeas petition in federal court was then tolled.
Mayor's post-conviction Rule 3.850 motion was denied by
the post-conviction court. Mayor appealed the denial. The
appeals court affirmed the post-conviction court's denial
of his Rule 3.850 motion and issued mandate on May 11, 2015.
After the May 11, 2015 mandate was issued, Mayor had 201 days
with which to file his habeas petition in federal court.
However, another 404 days passed before Mayor signed the
instant Petition for habeas corpus relief and turned it over
to prison officials to mail on June 17, 2016. See
Edison v. Sec'y, DOC, No. 206-CV-440-FTM-29SPC,
2009 WL 1684483, at *2 (M.D. Fla. June 16, 2009) (holding
that a pro se petitioner's collateral action is deemed
filed in federal court on the date it is signed and delivered
to prison officials for mailing). Based upon the time frame
in the record before the Court, Mayor's Petition for
habeas corpus relief was filed 203 days after §
2254's one year limitation period had expired.
Accordingly, Mayor's Petition for habeas corpus relief is
untimely and due to be denied.
2254 permits equitable tolling of the limitations period when
a movant untimely files because of extraordinary
circumstances that are both beyond his control and
unavoidable with diligence. Diaz v. Sec'y Dep't.
of Corr.,362 F.3d 698, 702 (11th Cir. 2004). However,
Mayor is not entitled to equitable tolling of the limitations
period, because he has not shown, nor even attempted to show,
that an ...