Quilling v. Secretary, Department of Corrections

          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 ...