United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, JUDGE
Filiberto Quiroga (“Petitioner” or
“Quiroga”), initiated this action by filing a
pro se Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (Doc. #1, “Petition”) on
January 6, 2015. Pursuant to the Court's Order to
respond and show cause why the Petition should not be granted
(Doc. #7), Respondent filed a Limited Response (Doc. #17,
Response) on February 3, 2016, incorporating a motion to
dismiss the Petition on the grounds that the Petition is
time-barred pursuant to 28 U.S.C. §
2244(d). Respondent submits exhibits (Exhs. 1-27)
in support of the Response. See Appendix of Exhibits
filed a Reply to the Response (Doc. #18, Reply). For the
reasons that follow, the Court finds the Petition is due to
be dismissed as time-barred.
challenges his July 20, 2009 plea-based conviction of second
degree murder and attempted robbery with a firearm entered by
the Twentieth Circuit Court, Lee County, Florida (case number
07-cf-184B). Quiroga was sentenced to life on the
second-degree murder conviction. Petition at 1; Response at
3. Quiroga's sentences and conviction were per
curiam affirmed on direct appeal on March 25,
2011. Exh. 4. Consequently, Quiroga's state
conviction became final on Thursday, June 23,
2011. See 28 U.S.C. § 2244(d)(1)(A)
and Rule of the Supreme Court of the United States, Rule 13.3
(ninety days after entry of the judgment or order sought to
be reviewed). This was after the April 24,
1996, effective date of the AEDPA. Thus, Petitioner's
one-year time period for filing a federal habeas challenging
his conviction expired on Monday, June 25,
2012. Consequently, the Petition filed in this
Court on January 6, 2015, would be untimely, unless
Petitioner availed himself of one of the statutory provisions
that extends or tolls the time period.
28 U.S.C. § 2244(d)(2), the limitations period is tolled
during the time that “a properly filed application for
state post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending.” Here,
438 days of the federal limitations period
elapsed before Petitioner filed his first state
post-conviction motion - - a motion pursuant to Florida Rule
of Criminal Procedure 3.800(a) filed on June 5,
2012. See Exh. 6. Thus, Petitioner filed
his first Rule 3.800 Motion after the federal
one-year limitations period had expired. “Once the
AEDPA's limitations period expires, it cannot be
reinitiated.” Davis v. McDonough, No.
8:03-CV-1807-T-27TBM, 2006 WL 2801986, *4 (M.D. Fla. Sept.
27, 2006) (citing Tinker v. Moore, 255 F.3d 1331,
1333-34 (11th Cir. 2001), cert. denied, 534 U.S.
1144 (2002)). Consequently, Petitioner's first Rule 3.800
Motion “filed following the expiration of the
limitations period cannot toll that period because there is
no period remaining to be tolled.” Webster v.
Moore, 199 F.3d 1256, 1259 (11th Cir. 2001). Thus, the
instant Petition is time-barred.
§ 2244(d)(1)(D), the one-year limitations period may run
from the date on which, as a result of exercising due
diligence, the petitioner could have discovered the factual
predicate of the claim or claims presented. 28 U.S.C. §
2244(d)(1)(D). Petitioner makes no claim to equitable
tolling. Further, Petitioner is not entitled to equitable
tolling as discussed in Holland v. Florida,
__U.S.__, 130 S.Ct. 2549, 2560 (2010). A petitioner is
entitled to equitable tolling only if he can demonstrate
that: (1) he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way.
Id. at 2562 (internal quotations and citations
omitted). “The diligence required for equitable tolling
purposes is ‘reasonable diligence, ' not maximum
feasible diligence.” Id. at 2565. Further, to
demonstrate the “extraordinary circumstance”
prong, a petitioner “must show a causal connection
between the alleged extraordinary circumstances and the late
filing of the petition.” San Martin v. McNeil,
633 F.3d 1257, 1267 (11th Cir. 2011). The petitioner bears
the burden of establishing that equitable tolling applies.
Drew v. Dep't of Corr., 297 F.3d 1278, 1286
(11th Cir. 2002). Petitioner does not make such a showing.
upon the foregoing, the Court finds the Petition is
time-barred and finds Petitioner has not demonstrated a
justifiable reason why the dictates of the one-year
limitations period should not be imposed upon him. Therefore,
the Court will dismiss this case with prejudice pursuant to
28 U.S.C. § 2244(d).
it is hereby
§ 2254 Petition for Writ of Habeas Corpus (Doc. #1) is
DISMISSED, with prejudice, as time-barred.
Clerk of Court shall enter judgment
dismissing this case with prejudice, terminate any pending
motions and deadlines, and close this case.
OF APPEALABILITY AND LEAVE TO APPEAL
FORMA PAUPERIS DENIED IT IS FURTHER ORDERED
that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking to appeal a district
court's final order denying his petition writ of habeas
has no absolute entitlement to appeal but must obtain a
certificate of appealability (“COA”). 28 U.S.C.
§ 2253(c)(1); Harbison v. Bell, 556 U.S. 180,
183 (2009). “A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, petitioner “must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
or, that “the issues presented were adequate to deserve
encouragement to proceed further, ” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003)(citations
omitted). Petitioner has not made the requisite showing in
these circumstances. Finally, because Petitioner is not
entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.