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Farmer v. Jones

United States District Court, N.D. Florida, Pensacola Division

January 31, 2018

EDGAR FARMER, Petitioner,
v.
JULIE JONES, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.

         Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer, providing relevant portions of the state court record. (Doc. 23). Petitioner replied. (Doc. 25). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the petition should be denied.

         BACKGROUND AND PROCEDURAL HISTORY[1]

         On November 24, 2009, petitioner escaped from an Escambia County Jail work detail, and an arrest warrant issued. The following day, November 25, 2009, Escambia County law enforcement officers spotted petitioner driving a pickup truck and attempted to initiate a traffic stop. Petitioner fled and led officers on a highspeed car chase through Escambia County into Santa Rosa County. The chase ended when petitioner crashed his vehicle into the Escambia Bay in Santa Rosa County, attempted to flee by swimming away, and was apprehended by Santa Rosa County law enforcement. Santa Rosa deputies took petitioner into custody and booked him into the Santa Rosa County Jail on charges pending in that county. After the Santa Rosa County charges were resolved, on June 15, 2011, petitioner was served with the 2009 Escambia County arrest warrant for escape as well as a new warrant for fleeing and attempting to elude, and was booked into the Escambia County Jail. (Doc. 23, Ex. A, pp. 12-18, 61-63 (arrest reports and probable cause affidavits)).[2] Petitioner was charged in Escambia County Circuit Court Case Number 11-CF-2785 with escape, and in Case Number 11-CF-2786 with fleeing or attempting to elude a law enforcement officer in an agency vehicle with sirens activated at high speed. (Ex. A, pp. 10, 64 (charging documents)). Petitioner resolved the charges by entering a counseled, negotiated plea agreement whereby he pled no contest to both charges in exchange for the State recommending a total sentence of 10 years in prison (5 years on each count to run consecutive to each other and concurrent with the sentence petitioner was then serving). (Ex. A, pp. 19-29 (transcript of plea hearing), pp. 34-37 (plea agreement)). The trial court accepted petitioner's plea and sentenced him consistent with the plea agreement. (Ex. A, pp. 19-29 (plea and sentencing), pp. 38-46 (judgment)). Judgment was rendered December 30, 2011. (Id.). Petitioner did not immediately appeal, but was granted a belated appeal on March 22, 2013. Farmer v. State, 109 So.3d 341 (Fla. 1st DCA 2013) (copy at Ex. B, p. 20 (directing that: “Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.”)). The mandate issued April 17, 2013. (Ex. A, p. 40). Petitioner's appellate counsel filed an Anders[3] brief, explaining that the appeal was wholly frivolous in that an appeal from a guilty or no contest plea is not cognizable except under certain circumstances not present in petitioner's case. (Ex. C, pp. 1-10). Petitioner filed a pro se motion to voluntarily dismiss the appeal so he could pursue postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. C, pp. 11-13). On March 7, 2014, the Florida First District Court of Appeal (First DCA) dismissed the appeal. (Ex. C, p. 14).

         While his belated direct appeal was pending, petitioner filed a pro se motion to correct sentencing error under Fla. R. Crim. P. 3.800(b), on December 18, 2013. (Ex. A, pp. 71-83). The state circuit court denied relief on January 27, 2014. (Ex. A, pp. 84-93). Petitioner did not appeal.

         On April 15, 2014, petitioner filed a pro se motion for reduction or modification of sentence under Fla. R. Crim. P. 3.800(c). (Ex. D, pp. 1-10). The state circuit court denied relief on September 15, 2014. (Ex. D, pp. 11-12). Petitioner did not appeal.

         On September 22, 2014, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. E, pp. 1-15). The state circuit court struck the motion as legally insufficient with leave to amend. (Ex. E, pp. 16-17). Petitioner timely filed an amended motion (Ex. F, pp. 1-12). The state circuit court denied relief (id., pp. 19-31), and the First DCA affirmed per curiam without opinion. Farmer v. State, 182 So.3d 640 (Fla. 1st DCA 2016) (Table) (copy at Ex. I). The mandate issued February 2, 2016. (Ex. J).

         While his Rule 3.850 proceeding was pending, petitioner filed a pro se motion for jail credit under Fla. R. Crim. P. 3.801, on September 30, 2014. (Ex. K, pp. 1-6). The state circuit court denied relief (id., pp. 7-19), and the First DCA affirmed per curiam without opinion. Farmer v. State, 178 So.3d 399 (Fla. 1st DCA 2015) (Table) (copy at Ex. N). The mandate issued December 18, 2015. (Ex. Q).

         Petitioner filed his federal habeas petition on April 13, 2016, raising two claims of ineffective assistance of trial counsel. (Doc. 1). Respondent asserts the petition is time-barred (doc. 23, pp. 6-8), and without merit (id., pp. 4-15).

         TIMELINESS

         Because petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA governs this petition. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period runs 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.

§ 2244(d)(1). The limitation period is tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2).

         Petitioner has not asserted that a State-created impediment to his filing a federal habeas petition existed, that he bases his claim on a right newly recognized by the United States Supreme Court, or that the facts supporting his claim could not have been discovered through the exercise of due diligence before his conviction became final. Accordingly, the statute of limitations is measured from the remaining trigger, which is the date on which petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1).

         Respondent asserts that because petitioner voluntarily dismissed his belated direct appeal, the proceeding was a nullity, and his judgment became final for purposes of § 2244(d)(1)(A), when his initial time for seeking direct review expired, that is, 30 days after rendition of the December 30, 2011, judgment. (Doc. 23, p. 7). According to respondent, this result “falls within the rule” set out in Gonzalez v. Thaler, 565 U.S. 134 (2012).

         In Gonzalez, the question was “when the judgment becomes ‘final' if a petitioner does not appeal to a State's highest court.” 565 U.S. at 149. Mr. Gonzalez, a Texas state prisoner, timely pursued direct review of his criminal judgment in the state's intermediate appellate court (the Texas Court of Appeals). Under Texas law, Gonzalez had a right to discretionary review in the state's highest court (the Texas Court of Criminal Appeals), but he did not seek such review. Gonzalez, 565 U.S. at 150. The Supreme Court held that “because Gonzalez did not appeal to the State's highest court, his judgment became final when his time for seeking review in the State's highest court expired.” Id. at 150. The Court rejected Gonzalez's argument that he was entitled to the 90-day period for seeking certiorari review in the United States Supreme Court, reasoning that the Court would have lacked jurisdiction over a certiorari petition from the Texas intermediate appellate court's decision. The Court explained: “We can review . . . only judgments of a ‘state court of last resort' or of a lower state court if the ‘state court of last resort' has denied discretionary review.” Id. at 154 (citing 28 U.S.C. § 1257(a), and Sup. Ct. R. 13.1).

         The present case, however, is more on point with Jimenez v. Quarterman, 555 U.S. 113 (2009). In Jimenez, a Texas state prisoner (Mr. Jimenez) did not initially seek direct review in the state's highest court, but was later granted a belated direct appeal. The Supreme Court addressed the question “whether the date on which direct review became ‘final' under [§ 2244(d)(1)(A)] is October 11, 1996, when petitioner's conviction initially became final, or January 6, 2004, when the out-of-time appeal granted by the Texas Court of Criminal Appeals became final.” Jimenez, 555 U.S. at 119. The Court held that the latter date controlled:

Under the statutory definition [set forth in § 2244(d)(1)(A)] . . ., once the Texas Court of Criminal Appeals reopened direct review of petitioner's conviction on September 25, 2002, petitioner's conviction was no longer final for purposes of § 2244(d)(1)(A). Rather, the order “granting an out-of-time appeal restore[d] the pendency of the direct appeal, ” Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997), and petitioner's conviction was again capable of modification through direct appeal to the state courts and to this Court on certiorari review.
. . . The statute requires a federal court, presented with an individual's first petition for habeas relief, to make use of the date on which the entirety of the state direct ...

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