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Hatcher v. Secretary, Department of Corrections

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

September 30, 2019

ROYALE HATCHER, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.

          ORDER

          ANNE C CONWAY UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Petitioner Royale Hatcher's Petition for Writ of Habeas Corpus (“Petition, ” Doc. 1) filed pursuant to 28 U.S.C. § 2254. Respondents filed a Response to the Petition (“Response to Petition, ” Doc. 15) in compliance with this Court's instructions. Petitioner filed a Reply to the Response to Petition (“Reply, ” Doc. 22).

         Petitioner asserts two grounds for relief in the Petition. For the following reasons, the Petition will be denied as untimely.

         I. Procedural History

         Petitioner was charged with robbery with a firearm (Count One) and three counts of aggravated assault with a firearm (Counts Two, Three, and Four). (Doc. 16-1 at 45-47.) The State stipulated to a judgment of acquittal as to Counts Two and Four, and the trial court granted a judgment of acquittal as to those counts. (Doc. 16-2 at 81.) A jury convicted Petitioner of Counts One and Three. (Doc. 16-1 at 82-83.) The trial court sentenced Petitioner to a thirty-year term of imprisonment for Count One and to a concurrent fifteen-year term of imprisonment for Count Three. (Id. at 28.) Petitioner appealed his conviction. On October 27, 2009, the Fifth District Court of Appeal of Florida (“Fifth DCA”) affirmed per curiam. (Doc. 16-2 at 225.) Petitioner filed a motion for clarification, which was denied on December 4, 2009. (Id. at 232.) Mandate issued on December 23, 2009. (Id. at 234.)

         On October 1, 2010, [1] Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which he amended several times. (Doc. Nos. 16-3 at 2-39; 16-4 at 1-86; 16-5 at 1-82; 16-6 at 2-98.) The state court denied relief. (Doc. 16-7 at 110-20.) Petitioner appealed. The Fifth DCA affirmed in part and reversed for an evidentiary hearing on two claims. (Doc. 16-8 at 38.) The state court conducted an evidentiary hearing and denied relief on those claims. (Doc. 16-9 at 89-98.) Petitioner appealed, and the Fifth DCA affirmed per curiam. (Doc. 16-11 at 44.) Mandate issued on August 1, 2014. (Id. at 46.)

         Petitioner filed a second Rule 3.850 motion on October 21, 2016, premised on newly discovered evidence. (Id. at 48-84.) The state court denied the motion inter alia because Petitioner failed to demonstrate that he could not have discovered the newly discovered evidence within the applicable two-year limitations period with due diligence. (Id. at 101-03.) Petitioner appealed. The Fifth DCA affirmed per curiam. (Id. at 177.) Mandate issued on August 11, 2017. (Id. at 179.)

         Petitioner filed the Petition on September 13, 2017. (Doc. 1.)

         II. Facts Adduced At Trial

         On September 6, 2007, employees at the Kirkman Road Walmart (“Walmart”) received their bi-weekly pay. (Doc. 16-1 at 148-53.) On the bi-weekly pay dates, Walmart allowed employees, who did not have their pay direct deposited, to cash their paychecks in the store at 7:00 a.m. at register eleven. (Id.) Every employee was aware of the procedure. (Id.)

         Petitioner worked the day of the robbery and clocked out of work at 6:56 a.m. (Id. at 224.) Jabari Simmonds (“Simmonds”), one of Petitioner's co-defendants, also worked that day. (Id. at 225.)

         As employees stood in line to cash their checks, at 7:10 a.m. a person wearing a white mask covering his entire head, carrying a gun, and shouting “get down” entered the store through the doors on the general merchandise side of the store and went directly to register eleven. (Id. at 153-60, 180-81, 190-96.) The individual in the mask ordered the clerk to give him the money at gunpoint. (Id.) In response, the clerk and several employees in the line ran toward the back of the store. (Id.)

         The customer service manager, the service manager, an associate, and Darren Wallace (“Wallace”), the assistant store manager, were standing near the service desk at that time. (Id. at 201-02.) Simmonds was standing beside Wallace. (Doc. 16-2 at 88.) All Walmart employees wore blue shirts, but sales associates and managers were required to wear khakis, and managers also had to wear a collared shirt. (Doc. 16-1 at 197-98.) Only managers had keys to open the registers. (Id. at 199-200.) The perpetrator ran straight to Wallace, who was standing approximately twenty feet from register eleven, and ordered Wallace to open the register. (Id. at 201-02.) Wallace opened the register, and the perpetrator took the till from the register and then fled the store through the general merchandise door, which reopens at 7:00 a.m. (Id. at 208-10.) The perpetrator took $23, 699.30 from the register. (id. at 223.)

         C.L. Gibson (“Gibson”), who was working that morning, exited the store on the general merchandise side when the perpetrator ran in with the gun. (Id. at 253-54.) Gibson called 911 and while waiting outside, observed a light-colored Monte Carlo pull up. (Id. at 254-55.) Gibson approached the vehicle, told the driver that the store was closed, and a few seconds later saw the perpetrator exit the store and enter the passenger side of the Monte Carlo. (Doc. Nos. 16-1 at 255; 16-2 at 1.) Gibson got the license plate number of the vehicle as it left the store. (Doc. 16-2 at 2.) Police determined that the vehicle belonged to Simmonds. (Id. at 48.)

         Dominique Campbell (“Campbell”), [2] Simmonds' girlfriend, testified that she saw Petitioner in the apartment she shared with Simmonds and her brother, Earl Campbell, Petitioner's other co-defendant, on the morning of the robbery.[3] (Id. at 4-6.) Campbell was awakened by men talking and laughter coming from her brother's bedroom. (Id. at 5.) When Campbell got up, her brother's bedroom door was closed; however, Campbell saw Petitioner alone in her brother's bedroom a few minutes later counting bundles of money when she passed by the room. (Id. at 5-7.) Campbell had seen Petitioner with Simmonds on other occasions and knew they worked together. (Id. at 6.) Simmonds arrived at the apartment approximately twenty minutes after Petitioner and Campbell's brother and after Campbell saw Petitioner counting the money. (Id. at 7, 13.) Campbell learned of the robbery from Simmonds when he arrived at the apartment. (Id. at 16.) Campbell did not see whether Petitioner took anything with him when he left the apartment. (Id. at 9.)

         Police searched Campbell's apartment later that day and located a cash register till in Earl Campbell's dresser drawer. (Id. at 9, 28.) Campbell later gave police a box containing $7, 710 that her brother gave her to return to police. (Id. at 33.) Petitioner's fingerprints were found on the passenger exterior window and passenger exterior door handle of Simmonds' vehicle. (Id. at 61.) Petitioner had ridden with Simmonds in the car a couple of times to work prior to the robbery. (Id. at 11.) Earl Campbell was identified as the get-away driver of Simmonds' vehicle. (Id. at 51.)

         III. Analysis

         Pursuant to 28 U.S.C. § 2244:

(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 that right has been newly recognized by the Supreme Court and made ...

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