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Quiroga v. Florida Attorney General

United States District Court, M.D. Florida, Fort Myers Division

September 7, 2017

FILIBERTO QUIROGA, Petitioner,
v.
FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.

          OPINION AND ORDER

          JOHN E. STEELE, JUDGE

         Petitioner 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.[1] 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).[2] Respondent submits exhibits (Exhs. 1-27) in support of the Response. See Appendix of Exhibits (Doc. #19).

         Petitioner 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.

         Quiroga 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).[3] 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.[4] 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.

         Under 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.

         Under § 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.

         Based 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).

         ACCORDINGLY, it is hereby

         ORDERED:

         1. The § 2254 Petition for Writ of Habeas Corpus (Doc. #1) is DISMISSED, with prejudice, as time-barred.

         2. The Clerk of Court shall enter judgment dismissing this case with prejudice, terminate any pending motions and deadlines, and close this case.

         CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL

         IN 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.

         DONE ...


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