United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
applies under 28 U.S.C. § 2254 for the writ of habeas
corpus (Doc. 1) and challenges the validity of his state
convictions for both murder in the second degree and robbery,
for which he is imprisoned for twenty-five years. Numerous
exhibits (“Respondent's Exhibit ”) support
the response. (Doc. 7) The respondent correctly argues that
the application is time-barred.
the Anti-Terrorism and Effective Death Penalty Act,
“[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 . . . the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review . . . .” 28 U.S.C. § 2244(d)(1)(A).
Additionally, under 28 U.S.C. § 2244(d)(2), “[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
conviction became final on May 26, 2014, [*] and the limitation expired one
year later, absent tolling for a state post-conviction
proceeding. The limitation expired on May 26, 2015, without
the filing of either a tolling state action or a federal
application under Section 2254. Although White petitioned for
leave to file a belated direct appeal before the limitation
expired, the petition failed to toll the limitation, as
Espinosa v. Sec'y, Dep't of Corrs., 804 F.3d
1137, 1141 (2015) (alterations and emphasis original),
Espinosa's petition for belated appeal is not an
“application for State post-conviction or other
collateral review with respect to the pertinent judgment,
” 28 U.S.C. § 2244(d)(2). “[R]eview of
anticipated appeal or the validity of the order to be
appealed, but instead reviews the grounds for relieving the
petitioner of his or her failure to timely seek such an
appeal.” Jones v. State, 922 So.2d 1088, 1090
(Fla. Dist. Ct. App. 2006). “[I]t challenges events
that occur after the final order is rendered.”
Id. An appellate court decides that a petitioner is
entitled to belated appeal by considering whether his lawyer
failed to file a timely appeal upon request, his lawyer
misadvised him as to the availability of review, or there
were “circumstances unrelated to [his] counsel[ ] . . .
that were beyond the petitioner's control and otherwise
interfered with the petitioner's ability to file a timely
appeal.” Fla. R. App. P. 9.141(c)(4)(F). A petitioner
seeking belated appeal does not need “to allege that
the issues that would be presented on appeal are potentially
meritorious.” State v. Trowell, 739 So.2d 77,
80 (Fla. 1999). The appellate court considering the petition
does not reexamine the underlying judgment or claim, and a
ruling on the petition cannot make “amendment[s] or
improvement[s]” to the terms of custody.
Kholi, 131 S.Ct. at 1285 (quoting Kholi v.
Wall, 582 F.3d 147, 153 (1st Cir. 2009)) (internal
quotation mark omitted). Accordingly, a petition for belated
appeal is not an application for collateral review within the
meaning of section 2244(d).
Espinosa, 804 F.3d at 1141, also explains that this
lack of tolling for a motion seeking a belated appeal is
consistent with state law.
Our reasoning mirrors how a Florida court would treat a
petition for a belated direct appeal in determining the
timeliness of a state motion for collateral review. That is,
an unsuccessful petition for belated appeal of a criminal
conviction, under Florida law, does not toll the limitation
period for state collateral review.
asserts entitlement to review because his “claims
warrant relief under fundamental miscarriage of
justice” (Doc. 12 at 6) based on his having sought a
belated appeal. The “miscarriage of justice”
exception is also called the “actual innocence”
exception. See Sawyer v. Whitley, 505 U.S. 333, 333
(1992) (“The miscarriage of justice exception applies
where a petitioner is ‘actually innocent' of the
crime of which he was convicted.”); Schlup v.
Delo, 513 U.S. 298, 321 (1995) (“To ensure that
the fundamental miscarriage of justice exception would remain
‘rare' and would only be applied in the
‘extraordinary case,' while at the same time
ensuring that the exception would extend relief to those who
were truly deserving, this Court explicitly tied the
miscarriage of justice exception to the petitioner's
innocence.”); House v. Bell, 547 U.S. 518, 537
(2006) (using both miscarriage of justice and actual
innocence to describe the same exception).
of justice” is not a separate claim that challenges the
conviction but a “gateway” through which a
defendant may pass to assert an otherwise time-barred or
procedurally barred federal claim. Passage through the
gateway is difficult because “[t]o be credible, such a
claim requires petitioner to support his allegations of
constitutional error with new reliable evidence - whether . .
. exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence - that was not
presented at trial.” Schlup v. Delo, 513 U.S.
298, 324 (1995). The gateway is narrow and opens “only
when a petition presents ‘evidence of innocence so
strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error.'”
McQuiggin, Warden, v. Perkins, 569 U.S. 383, 401
(2013) (quoting Schlup v. Delo, 513 U.S. at 316).
innocence' means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998). White asserts no evidence of his
innocence, neither now nor during the state criminal
proceedings. White pleaded guilty to murder in the second
degree - with a sentence of imprisonment for twenty-five
years - to avoid a possible conviction for murder in the
first degree - with a possible sentence of imprisonment for
life. As a consequence, White fails to prove entitlement to
the an exception to the one-year limitation.
application for the writ of habeas corpus (Doc.1) is
DISMISSED as time-barred. The clerk must enter a judgment
against White and CLOSE this case.
OF BOTH A CERTIFICATE OF APPEALABILITY AND LEAVE TO
APPEAL IN FORMA PAUPERIS
is not entitled to a certificate of appealability
(“COA”). A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district
court's denial of his application. 28 U.S.C. §
2253(c)(1). Rather, a district court must first issue a COA.
Section 2253(c)(2) permits issuing a COA “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” To merit a COA, White must show
that reasonable jurists would find debatable both (1) the
merits of the underlying claims and (2) the procedural issues
he seeks to raise. See 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 478 (2000);
Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001).
Because the application is clearly time-barred, White cannot
meet Slack's prejudice requirement. 529 U.S. at
484. Finally, because White is not entitled to a COA, he is
not entitled to appeal in forma pauperis.
certificate of appealability is DENIED. Leave to appeal
in forma pauperis is DENIED. White must pay the full
$505 appellate filing fee unless the circuit ...