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Collins v. Secretary of Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

June 15, 2017

QINARD LAMAR COLLINS, Petitioner,
v.
SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.

         I. Status

         Petitioner, an inmate of the Florida penal system, initiated this action by filing, through counsel, a Petition for Writ of Habeas Corpus by a Person in State Custody (Doc. 1) (Petition)[1] pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2003 state court (St. Johns County, Florida) judgment of conviction and sentence for second degree murder. Petitioner is serving a thirty-year prison sentence after pleading no contest. He challenges the judgment of conviction and sentence on a claim of actual innocence based on newly discovered evidence. Respondents filed their response arguing the Petition is untimely and without merit. See Response to Petition (Doc. 9) (Response).[2] Petitioner replied. See Petitioner Collins' Reply to the Respondents' “Response to Petition” (Doc. 12) (Reply).

         Because Petitioner's actual innocence claim appeared to have arguable substance, and to allow Petitioner to develop the record for appellate review, the Court conducted a non-evidentiary hearing on June 6, 2017 (Doc. 16). At the hearing, Petitioner's counsel clarified that Petitioner was asserting only a freestanding claim of actual innocence. Further, Petitioner's counsel conceded that the Petition was foreclosed by Eleventh Circuit precedent. Nevertheless, Petitioner seeks a certificate of appealability to the Eleventh Circuit.

         II. Findings of Fact and Conclusions of Law

         “A state prisoner's § 2254 habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996" (AEDPA). Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). The AEDPA amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) 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. The limitation period shall run 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.

28 U.S.C. § 2244(d)(1). “The limitations period[, however, ] can be tolled in two ways: through statutory tolling or equitable tolling.” Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008). With regard to statutory tolling, 28 U.S.C. § 2244(d)(2) provides: “[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.” 28 U.S.C. § 2244(d)(2). For equitable tolling, a petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 477 (11th Cir. 2014) (recognizing that equitable tolling is an extraordinary remedy that is “limited to rare and exceptional circumstances and typically applied sparingly”); see also Brown, 512 F.3d at 1307 (noting that the Eleventh Circuit “has held that an inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence.”). Further, “actual innocence, if proved, serves as a gateway through which a petitioner may pass [notwithstanding the] expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013).

         For challenges based on newly discovered evidence, such as the case here, the limitations period runs from the date “on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); see McQuiggin, 133 S.Ct. at 1929. Petitioner's claim relies on medical reports written on August 15, 2009; August 27, 2009, August 30, 2009; December 7, 2009; and September 27, 2010. Ex. Z. Therefore, at the latest, Petitioner became aware of his claim on September 27, 2010.[3] As a result, Petitioner's limitations period commenced on September 28, 2010. Ninety-nine (99) days ran before Petitioner filed a state post-conviction motion on January 5, 2011. Ex. W. Assuming arguendo statutory tolling applies, [4] the post-conviction motion tolled the limitations period until March 8, 2013, when the Fifth District Court of Appeals issued its mandate affirming the state trial court's denial of the motion (Ex. II). See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (holding that a Florida post-conviction motion remains pending until the appellate court's mandate issues). Thereafter, the limitations period ran from March 9, 2013 for two hundred and sixty-six (266) days until November 30, 2013, when the one year limitations period expired. Petitioner did not file his Petition until January 13, 2014. Therefore, the Petition is untimely unless some exception applies.[5]

         As a way to avoid the limitations period and to have the Court grant him habeas relief, Petition makes a freestanding actual innocence claim. However, the United States Supreme Court has “not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.” McQuiggin, 133 S.Ct. at 1928. And, as recognized by Petitioner's counsel, the Eleventh Circuit, which this Court must follow, does not allow habeas relief based on a freestanding claim of actual innocence in noncapital cases. See Cunningham v. Dist. Attorney's Office for Escambia Cty., 592 F.3d 1237, 1272 (11th Cir. 2010) (“this Court's own precedent does not allow habeas relief on a freestanding innocence claim in non-capital cases”); Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007) (“our precedent forbids granting habeas relief based upon a claim of actual innocence, anyway, at least in non-capital cases”); see also Herrera v. Collins, 506 U.S. 390, ...


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