United States District Court, M.D. Florida, Tampa Division
ORDER
Charlene Edwards Honeywell United States District Judge.
Gary
Cleveland Quilling (“Quilling”), a now-counseled
Florida prisoner, initiated this action with a pro
se petition for writ of habeas corpus under 28 U.S.C.
Section 2254. (Doc. 1) He challenges his convictions for
robbery with a deadly weapon and aggravated assault with a
deadly weapon.[1] His convictions were entered by the
Circuit Court for the Fifth Judicial Circuit for Hernando
County, Florida. The Respondent filed a response and
supporting exhibits. (Docs. 6, 7) Quilling filed a pro
se reply, a pro se response to the
Respondent's request in its response for the Court to
dismiss his petition as untimely, and a pro se
supplement to his reply. (Docs. 11, 13, 16) Quilling's
counsel filed an appearance on his behalf on March 27, 2017.
(Doc. 21) Upon review, the petition must be dismissed as
untimely.
I.
PROCEDURAL HISTORY
Quilling
was found guilty after a jury trial of robbery with a deadly
weapon and aggravated assault with a deadly weapon. He was
sentenced as a violent career criminal to life imprisonment
for the robbery, and a concurrent term of 15 years with a
ten-year mandatory minimum prison term for the aggravated
assault. On July 19, 2005, the state appellate court per
curiam affirmed. Quilling v. State, 907 So.2d
1179 (Fla. 5th DCA 2005) [table]. On August 3, 2005, Quilling
filed a timely pro se motion for rehearing and
request for a written opinion, which was pending when the
mandate issued two days later on August 5,
2005.[2] (Doc. 7-2 at 17; 7-3 at 73 to 79) The
motion for rehearing was denied on August 18, 2005. (Ex. C
98; Doc. 7-3 at 80) Over 10 months later, Quilling filed a
pro se amended motion for rehearing on July 3, 2006.
His amended motion was denied on July 19, 2006. (Exs. C 99,
110; Doc. 7-3 at 81 to 83; 7-4 at 6)
By
then, Quilling had filed on May 22, 2006, a pro se
motion to correct illegal sentence pursuant to Rule 3.800(a)
of the Florida Rules of Criminal Procedure. (Ex. D 1; 7-4 at
8 to 10) His motion was denied, and his motion for rehearing
was denied. On October 27, 2006, the state appellate court
affirmed with written opinion. Quilling v. State,
940 So.2d 548 (Fla. 5th DCA 2006). Quilling filed a motion
for rehearing, which was denied on November 29, 2006, after
the mandate issued on November 15, 2006. (Exs. D 47, 50, 51;
Doc. 7-14 at 54 to 58)
On
January 11, 2007, Quilling filed a pro se
handwritten 379-page motion for postconviction relief with
numerous pages of attachments and exhibits.[3] (Ex. E 1-379;
Doc. 7-4 at 60 et seq. to 7-11 at 2) He filed a handwritten
amendment to his postconviction motion and additional
exhibits and attachments. He also filed an eight-page
supplement. The trial court dismissed Mr. Quilling's
motions and supplements without prejudice to his filing an
amended motion not to exceed fifty pages.[4] (7-11 at 4 to 7)
Quilling filed an amended postconviction motion consisting of
50 pages on July 18, 2007. (G 1-50; Doc. 7-11 at 37 to 86) He
also filed a July 27, 2007 supplemental rule 3.850 motion and
several motions to compel/public records requests. See
Quilling v. State, 990 So.2d 1133, 1135 (Fla. 5th DCA
2008) (discussing Quilling's pleadings and withholding
writ of mandamus). A number of Quilling's grounds in his
amended Rule 3.850 motion were summarily denied. The
remaining grounds were denied after an evidentiary hearing.
On July 25, 2012, Quilling's appeal of the denial of his
amended postconviction motion was dismissed for his failure
to file an initial brief. (Exs. G 145, 146; Doc. 7-13 at 9)
Rehearing was denied on August 29, 2012.[5] (Exs. G 147, 153;
Doc. 7-13 at 16)
On
September 6, 2012, Quilling filed a pro se motion
seeking DNA testing under Rule 3.853 of the Florida Rules of
Criminal Procedure. (Ex. H 1 to 8; Doc. 7-13 at 18 to 23) The
motion was denied, and Quilling's motion for rehearing
was denied. (Exs. H 9 to 11, H 18 to 20; Doc. 7-13 at 26 to
28, 35 to 37). The state appellate court per curiam
affirmed without written opinion. Quilling v. State,
110 So.3d 907 (Fla. 5th DCA 2013) [table]. After denial of
rehearing, the mandate issued on May 8, 2013. (Exs. D 51, 52;
Doc. 7-14 at 1 to 2)
On
April 29, 2013, Quilling filed another pro se Rule
3.850 motion, which was denied as untimely and successive.
(Exs. I 1 to 11; Doc. 7-14 at 4 to 14) His motion for
rehearing was denied. (Exs. I 12 to 14; Doc. 7-14 at 15 to
17) On December 23, 2013, the state appellate court per
curiam affirmed without written opinion. Quilling v.
State, 146 So.3d 53 (Fla. 5th DCA 2013) [table]. After
rehearing was denied, the mandate issued on February 17,
2014. (Ex. I 31; Doc. 7-14 at 33 to 34)
II.
UNTIMELINESS OF PETITION
The
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year statute of
limitations for a state prisoner to file a § 2254
petition for a writ of habeas corpus, which begins to run
under Section 2244(d)(1)(A) on the date the prisoner's
state judgment becomes final. The limitations period is
tolled for “[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 . . . ” 28 U.S.C. § 2244(d)(2).
To
determine whether the federal habeas petition was timely
filed within one year after the conviction became final, the
Court must first determine when Quilling's judgment
became final. The judgment becomes final for purposes of
Section 2244(d)(1)(A) when the 90-day period for seeking
certiorari review expires. See Williams v. Sec'y,
Fla. Dep't of Corr., ___ Fed.Appx. ___,
2017 WL 443636, at *1 (11th Cir. Feb. 2, 2017) (“After
the final state court of appeals rules on a § 2254
petitioner's conviction, the one-year limitations period
does not begin to run until the 90-day window to petition the
United States Supreme Court for a writ of certiorari
expires.”) (citing Bond v. Moore, 309 F.3d
770, 774 (11th Cir. 2002)).[6] Direct review cannot conclude for
purposes of Section 2244(d)(1)(A) until the availability of
direct appeal to the state courts and to the Supreme Court
has been exhausted. Jimenez v. Quarterman, 555 U.S.
113, 119-20 (2009).
A.
Quilling's judgment became final under 28 U.S.C. §
2244(d)(1)(A) when the period for petitioning for certiorari
expired following denial of his motion for rehearing of the
affirmance on direct appeal.
Quilling
asserts, and the Respondent does not dispute, that
Quilling's August 3, 2005, rehearing motion of the
affirmance on direct appeal was timely filed within the
15-day period for filing a motion for rehearing, Fla. R .App.
P. 9.330(a). The parties disagree, however, on the import of
the denial of this rehearing motion on August 18, 2005. The
Respondent asserts that Quilling's judgment became final
90 days after the August 18, 2005, denial of his motion for
rehearing. (Doc. 6 at 5, 6) Quilling has a number of
arguments, which share a core assertion: that direct review
has not concluded.
Quilling
contends in his pro se reply that the mandate issued
prematurely and that direct review has remained pending
because no mandate issued after the August 18, 2015, denial
of his timely motion for rehearing. (Doc. 11 at 3) In his
brief in opposition to the Respondent's motion to dismiss
the petition, Quilling asserts that under Rule 9.340 of the
Florida Rules of Appellate Procedure, a decision becomes
final when the state appellate court issues the mandate, and
he relies on his assertions in his July 3, 2006, amended
motion for rehearing, in which he claimed that he did not
receive the mandate until he received it on request. (Doc. 13
at 4) In his amended rehearing motion, Quilling asserted that
the state court had treated his motion for rehearing as
untimely by stating that it was filed on August 8, 2005, and
he moved the state court to withdraw the August 5, 2005,
mandate and rule on his July 3, 2006, amended motion for
rehearing. (Doc. 73-at 81 to 83) Quilling's amended
rehearing motion was denied without elaboration on July 19,
2006. (Doc. 7-4 at 6) Citing state decisional law that a
mandate could be withdrawn outside the term of court where a
mandate was improvidently issued on the erroneous conclusion
that no timely motion had been filed, Quilling claims that
the state appellate court erred “as a matter of
law” in failing to: withdraw its mandate, rule on the
timely rehearing motion, and then issue its mandate. (Doc. 13
at 3 to 5) By not following this procedure, Quilling claims,
the state appellate court never lost jurisdiction over the
direct appeal and direct review never concluded. (Doc. 13 at
5)
In a
pro se supplement, Quilling makes an additional
argument. According to Quilling, the August 18, 2005, denial
of his timely August 3, 2005, motion for rehearing is a
nullity because mandate issued after he constructively filed
his motion for rehearing and before denial thereof. (Doc. 16
at 1)
The
entry of judgment, and not the issuance of the mandate, is
the event that starts the running of time for seeking Supreme
Court review. Chavers v. Sec'y, Fla. Dep't of
Corr., 468 F.3d 1273, 1275 (11th Cir. 2006) (“If
Rule 13.1 is unclear about when the 90-day period begins to
run, Rule 13.3 leaves no doubt. It specifies that
“[t]he time to file a petition for a writ of certiorari
runs from the date of entry of the judgment or order sought
to be reviewed, and not from the issuance date of the mandate
(or its equivalent under local practice).” Id.
at 13.3.”). If a petition for rehearing is timely filed
in the lower court by any party, or if the lower court
appropriately entertains an untimely petition for rehearing
or sua sponte considers rehearing, the time to file
the petition for writ of certiorari for all parties runs from
the date of the denial of rehearing or, if rehearing is
granted, the subsequent entry of judgment. Sup. Ct. R. 13.3.
The
order denying Quilling's rehearing motion referred to it
as filed on August 8, 2005, the date that it was docketed.
Nevertheless, the reference to the docketing date does not
establish that the state appellate court declined to
entertain the rehearing motion. Given that his rehearing
motion was timely and the state court's order did not
state that the motion was untimely, his time for seeking
certiorari review ran from the denial thereof under Rule 13.
Quilling
in his pro se supplement asserts that Rule 13
contemplates denial of a “legal order denying
rehearing.” (Doc. 16 at 3) Generally, a Florida court
should recall its mandate if it receives a timely motion for
rehearing after the mandate issued. See Rasley v.
McNeil, 2010 WL 503080, at *5, n. 7 (N.D. Fla. Feb. 8,
2010) (unpublished) (citing Robbins v. State, 992
So.2d 878, 879-80 (Fla. 5th DCA 2008), and Plucinik v.
State, 885 So.2d 478 (Fla. 5th DCA 2004)). Nevertheless,
Quilling fails to show that the August 18, 2005, denial of
his timely motion for rehearing was a “nullity”
or an “unlawful” order for purposes of starting
his time for petitioning the Supreme Court for certiorari
review. When the state appellate court denied Quilling's
amended motion for rehearing, the state court did not hold
that the denial of Quilling's August 3, 2005, motion for
rehearing was a nullity.
Nor did
the state court hold that his motion for rehearing was still
pending when Quilling filed his amended motion for rehearing.
There was no pending rehearing motion to amend, and the state
court did not re-open direct review. Accordingly, his
judgment was final on November 16, 2005, when the 90-day
window closed for petitioning the Supreme Court for review
following the August 18, 2005, denial of Quilling's
motion for rehearing. See Bond v. Moore, 309 F.3d
770, 774 (11th Cir. 2002) (holding the petitioner's
conviction became final 90 days after the Supreme Court of
Florida denied his motion for rehearing). See also
e.g., Hollinger v. Sec'y, Dep't of
Corr., 334 Fed.App'x. 302, 303 (11th Cir. 2009)
(petitioner's conviction became final ninety days after
rehearing on direct appeal was denied). Quilling's AEDPA
limitations period began running on November 17, 2005, and
using the anniversary period, it would have expired on
November 17, 2006, absent statutory tolling.[7]
Upon
commencement of his limitations period, a period of 186 days
ran which was not tolled until Quilling filed his pro
se Rule 3.800(a) motion on May 22, 2006.[8] (Doc. 7-4 at 8 to
10) The parties disagree on how long the Rule 3.800 motion,
“properly filed” for tolling purposes, was
pending. The Respondent applies statutory tolling until the
mandate issued in his appeal of the Rule 3.800(a) denial on
November 15, 2006. (Doc. 6 at 6) The Respondent asserts that
Quilling's November 13, 2006, motion for rehearing was
filed outside the 15-day ...