United States District Court, M.D. Florida, Ocala Division
WILLIAM F.JUNG UNITED STATES DISTRICT JUDGE
a Florida prisoner, instituted this action by filing a
petition for writ of habeas corpus under 28 U.S.C.
§2254. Dkt. 1. At the Court's direction, Respondents
responded to Petitioner's petition and filed relevant
portions of the state court record. Dkts.6, 7. Petitioner
filed a reply in support of his petition. Dkt. 8. Up on
review o f Petitioner's reply, the Court directed
Respondents to submit a supplemental response addressing
Petitioner's argument that he was entitled to equitable
tolling and that his petition was timely under 28 U.S.C.
§ 2244(d)(1)(B). Dkt. 11. The Court also allowed
Petitioner to submit a supplemental reply. Id.
Respondents filed their supplemental response (Dkt. 12), but
Petitioner did not file a supplemental reply and the time for
doing so has expired. Thus, this matter is ripe for review.
Court has reviewed the entire record. Because the Court may
resolve the petition on the basis of the record, an
evidentiary hearing is not warranted. See Rules
Governing Section 2254 Cases in the United States District
Courts, Rule 8(a). Up on consideration, the Court concludes
that the petition is due to be dismissed as untimely.
was charged with three counts of capital sexual battery on a
victim less than 12 years of age (Counts I-III) and one count
of lewd or lascivious molestation on a victim less than 12
years of age (Count IV). Dkt. 7-1 at 5-6. The alleged victim
was his girlfriend's daughter. Id. at 283-84.
Petitioner was tried by a jury and found guilty as charged on
October 6, 2010. Dkt. 7-3 at2-5. On October 21, 2010, he was
sentenced to four consecutive life sentences. Id. at
(through counsel) filed a timely direct appeal to
Florida's Fifth District Court of Appeal. Id. at
19-52. He raised various objections to the trial court
proceedings, including an objection to the trial court's
decision to admit so-called 'Williams Rule"
evidence of other similar acts of sexual misconduct
(id.), including evidence that he also molested his
stepdaughter (see, e.g., Dkt. 7-2 at 78). In late
April 2011, while his direct appeal was pending, Petitioner
(through counsel) filed a motion to correct sentencing error
in the state trial court. Dkt. 7-4 at 24-29. On June 15,
2011, and as a result of that motion, Petitioner's
sentence for Count IV was modified from life in prison
running consecutively to the life sentences he received for
Counts I-III to 15 years in prison running concurrently with
his life sentences for Counts I-III. Id. at 2-10. In
August 2011 (while the direct appeal was still pending),
Petitioner (through counsel) filed a second motion to correct
sentencing error. Id. at 12-17. On August 26, 2011,
the state trial court re-sentenced Petitioner to 49 months in
prison for Count IV (running concurrently with his sentences
on Counts I-III). Id. at 40-52.
2012, Petitioner (through counsel) filed a supplemental brief
in his direct appeal in which he challenged a scrivener's
error in his sentencing documents. Id. at 54-60.
Specifically, he argued that the August 2011 amended judgment
incorrectly designated his conviction for Count IV as a
"life" felony under Fla. Stat. § 800.04(5),
rather than a second-degree felony and that the amended
judgment incorrectly omitted the phrase "nunc pro
tunc to October 21, 2010" (the original sentencing
date). Id. On December 28, 2012, the Fifth DCA
affirmed Petitioner's convictions but remanded for
correction of the scrivener's error. Dkt. 7-6 at 11-12;
see also Cramer v. State, 103 So.3d 4043 (Fla. 5th
DCA 2012). Mandate issued on January 22, 2013. Dkt. 7-6 at
February 28, 2014,  Petitioner filed a pro se motion to
correct illegal sentence in the state trial court, arguing
that the imposition of consecutive life sentences constituted
cruel and unusual punishment under the Eighth Amendment to
the U.S. Constitution. Id. at 16-18. On March 18,
2014, the court summarily denied the motion because
Petitioner's argument was not cognizable in a motion to
correct illegal sentence. Id. at 20-21.
April 1, 2014, Petitioner filed a pro se motion for
postconviction relief in which he raised four claims of
ineffective assistance of counsel and one claim of cumulative
prejudice. Id. at 23-30. The state trial court
summarily denied the motion in an order (with attachments)
filed on May 12, 2014. Id. at 33-129. The
certificate of service on the order denying the motion
indicates that it was mailed to Petitioner on May 13, 2014.
Id. at 40.
it appears to be undisputed that, as of March 2015,
Petitioner had not yet received a copy of the order. Dkt. 8
at 5; see also Dkt. 7-6 at 159 (showing that
Petitioner did not receive any legal mail in May, June, or
July 2014). According to Petitioner, he waited a
"reasonable amount of time for an answer [to his motion
for postconviction relief], almost 1 year" and then
"filed a notice of inquiry in March of 2015." Dkt.
8 at 5. It appears that he made this "notice of
inquiry" on or about March 16, 2015.
Id. In correspondence dated March 27, 2015,
the clerk of the state trial court sent Petitioner a copy of
the May 2014 order denying his motion for postconviction
relief. Dkt. 12-1 at 4, 7. According to Petitioner, he then
"immediately submitted an inmate request to the
facility's mail room inquiring as to the legal mail logs
between May 1, 2014 and June 30, 2014." Dkt. 8 at 5.
That request form is dated April 14, 2015. Dkt. 7-6 at 159.
In a response dated April 16, 2015, his correctional
institution informed him that there was "no
documentation showing that you received legal mail for the
time frame of May 2014 through July 2014." Id.
April 27, 2015, Petitioner filed a pro se petition for a
belated appeal of the trial court's denial of his motion
for postconviction relief. Dkt. 7-6 at 131-36. The Fifth DCA
granted Petitioner's motion on June 12, 2015. Dkt. 7-7
at6. Petitioner filed his pro se initial brief on September
15, 2015 (Dkt. 7-7 at 8-24), and the State responded
(id. at 31-52). On June 14, 2016, the Fifth DCA per
curiam affirmed the trial court's denial of
Petitioner's motion for postconviction relief.
Id. at54. Mandate issued on July 8, 2016.
filed a motion for rehearing (id. at 58-61), but it
was stricken as untimely on July \2, 2O\6(id. at63).
Petitioner filed his federal habeas petition on July 19,
2016. Dkt. 1. His federal habeas petition raises four grounds
of ineffective assistance of counsel, all four of which were
raised in his state court motion for postconviction relief.
argue that the petition is due to be dismissed because it is
untimely under 28 U.S.C. § 2244(d). Dkt. 6. In his
reply, Petitioner suggested that his petition was timely
under § 2244(d)(1)(B). Dkt. 8. He also argued that he
was entitled to equitable tolling. Id. The Court
discusses each of these points, below.
28 U.S.C.$2444(1)(B)Does Not Apply.
habeas petitions are subject to a one-year statute of
limitation that runs from the latest of a number of events,
including (as relevant here): (1) "the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review"; and
(2) "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." 28 U.S.C. §§ 2244(d)(1)(A) and
reply brief, Petitioner suggested that the Court should apply
§ 2244(d)(1)(B) and find his petition timely. According
to Petitioner, the state trial court "inadvertently made
a mistake and did not serve Petitioner with the [order
denying his motion for postconviction relief]," thereby
preventing him from filing a timely notice of appeal. Dkt. 8
at 6. He argues that the failure to provide him with a copy
of the order amounts to "an impediment by state
action" under § 2244(d)(l)(B) and that the statute
of limitation should not have begun to run until that
impediment was removed, which was-according to him-when the
Fifth DC A granted his petition for belated appeal.
Id. at 4, 6.
Court concludes that § 2244(d)(1)(B) is not applicable.
Petitioner is correct that, if he was prevented from timely
filing his federal habeas petition as a result of
"illegal state action," the limitation period did
not begin running until the state impediment was removed.
Arthur v. Allen, 452 F .3d 1234,
1249(11th Cir. 2006) (citation omitted),
modified on other grounds by 459 F.3d 1310 (2006).
But Petitioner's argument on this point is wholly
conclusory. Notably, he offers no evidence to sup port the
conclusion that the state court failed to timely mail him the
May 2014 order denying his motion for postconviction relief.
Although it appears to be undisputed that Petitioner did not
receive that order in 2014, the certificate of service
indicates that it was mailed to Petitioner on May 13, 2014
and there is nothing in the record to suggest that the order
was not mailed. That is, there is nothing to suggest that
Petitioner failed to receive the order because of the state
court's action-as opposed to, for example, an error by
the postal service.
even if there were evidence to support a finding that the
state court failed to timely mail the order to Petitioner,
Petitioner has failed to explain how that failure was a
"violation of the Constitution or the laws of the United
States." See, e.g., United States ex rel. Mueller v.
Lemke, 20 F.Supp.3d 659, 666 (N.D. 111. 2014) (rejecting
application of § 2244(d)(1)(B) where state court clerk
negligently provided petitioner's counsel with an
incorrect date that led to the federal habeas petition being
filed late because there was not "any evidence of
violations of the Constitution or federal law"). On this
point, the Fifth Circuit Court of Appeals has expressed
"serious reservations" about whether a state's
failure to notify a prisoner of a postconviction ruling
"provides a basis for a statutory tolling claim rather
than merely an equitable tolling claim." Clarke v.
Rader, 721 F.3d 339, 343 (5th Cir. 2013) (citations).
even assuming that the state court's apparent failure to
timely mail a copy of the May 2014 order to Petitioner could
be a state-created impediment that violated the Constitution
or laws of the United States, Petitioner's appeal to
§ 2244(d)(1)(B) still fails. This is because §
2244(d)(1)(B) applies only if "the applicant was
prevented from filing by such State action." Here, the
state court did not prevent Petitioner from timely appealing
the denial of his motion for postconviction relief and, thus,
it did not prevent him from exhausting his state court
remedies and filing his federal habeas petition. See
Critchley v. Thaler, 586 F.3d 318, 319-20 (5th Cir.
2009) (concluding that the state court's apparent
practice of mishandling and failing to file state habeas
petitions constituted a state-created impediment under §
2244(d)(1)(B)). As discussed in more detail, below,
Petitioner had the ability to check on the status of his
case. He simply failed to do so for almost a year. Had
Petitioner exercised due diligence, he would have known about
the denial of his motion for postconviction relief and could
have timely pursued an appeal and, later, his federal habeas
petition. On these facts, it cannot be said that the alleged
failure to mail the copy of the order "prevented"
Petitioner from pursuing his federal habeas petition. See
Wood v. Spencer, 487 F.3d 1, 7 (1st Cir. 2007)
(rejecting reliance on § 2244(d)(1)(B) where the
petitioner, "with the exercise of garden-variety
diligence," could have learned about the alleged
state-created impediment and "obliterated the adverse
effects of the [state's] nondisclosure" because
"[g]iven this circumstance, we cannot say that the
state-created impediment 'prevented' [the
petitioner], in any meaningful sense, from filing for federal
habeas relief). Thus, § 2244(d)(1)(B) does not apply.
The Petition is Untimely Under 28 U.S.C. §
§ 2244(d)(1)(B) does not apply, the only other potential
trigger for the statute of limitation in this case is §
2244(d)(l)(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." Under that section,
however, the "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.. . ." Id. § 2244(d)(2). In
their initial response, Respondents calculated
Petitioner's filing deadline under § 2244(d)(l)(A)
with tolling under § 2244(d)(2). Dkt. 6. In his reply,
Petitioner agreed that the petition was untimely under that
provision. Dkt. 8 at 4 ("Petitioner understands why
(d)(2) doesn't apply.. . .").
Court agrees that the petition was not timely filed under
§ 2244(d)(l)(A). Petitioner's judgment and sentence
were affirmed on direct appeal on December 28, 2012. The
judgment and sentence became final 90 days later- on March
28, 2013-when Petitioner's time to seek review in the
Supreme Court of the United States expired. See Chavers
v. Sec'y, Fla. Dep't of Corr., 468 F.3d 1273,
1274-75 (11th Cir. 2006) (per curiam) (concluding that the
time to seek Supreme Court review ran from the date the DCA
entered its judgment affirming petitioner's convictions,
not the date it issued its mandate). Pursuant to 28 U.S.C. §
2244(d)(l)(A), the one-year statute of limitation began
running the next day. See San Martin v. McNeil, 633
F.3d 1257, 1266-67(11th Cir. 2011). It ran for 337 days until
Petitioner filed his third motion to correct illegal sentence
on February 28, 2014. The order denying Petitioner's
motion was filed on March 18, 2014. Petitioner did not appeal
that ruling, and the statute of limitation would have begun
to run again when his time for seeking appellate review
expired 30 days later-that is, on April 16, 2014. See
Cramer v. Sec'y, Dep't of Corr., 46\ F.3d 1380,
1383 (11th Cir. 2006) (AEDPA statute of limitation was tolled
under § 2244(d)(2) during time in which petitioner could
have sought appeal of trial court's denial of his motion
to correct sentence, even though he did not seek appellate
review of the denial).
the statute of limitation began running again, though,
Petitioner filed his motion for postconviction relief. That
motion (filed on April 1, 2014)was denied on May 12, 2014.
Petitioner did not appeal that ruling, so the statute of
limitation began to run again when his time for seeking
appellate review expired 30 days later-that is, on June 11,
2014. See Hollinger v. Sec'y, Dep't of
Corr., 334 Fed.Appx. 302, 304n.3 (11thCir. 2009)(AEDPA
statute of limitation was tolled under § 2244(d)(2)
during time in which petitioner could have sought appeal of
trial court's denial of motion for postconviction relief,
even if petitioner did not file an appeal). Because 337 days
had already runoff the statute of limitation,
Petitioner's deadline to file a federal habeas petition
expired 28 days later-that is, on July 9, 2014. Petitioner did
not file his federal habeas petition until July 19, 2016-long
after that deadline expired. Thus, his federal petition is
untimely under28U.S.C. § 2244(d)(1)(A).
Equitable Tolling is Not Warranted.
argues, however, that equitable tolling should apply because
he did not receive a copy of the order denying his motion for
postconviction relief until late March or early April 2015,
arguing that "he is entitled to equitable tolling from
June 11, 2014, when time expired for filing timely notice of
appeal from the trial court's summary denial of his Rule
3.850 motion and to the time the belated appeal was granted
on June 12, 2015, totaling approximately 364 days." Dkt.
8 at 4. He argues that he "pursued his rights
diligently" because he "wait[ed] a reasonable
amount of time for an answer, almost 1 year," filed an
inquiry with the state trial court, and
"immediately" after receiving a response,
"submitted an inmate request to the facility's mail
room inquiring as to the legal mail logs. . . ." Dkt. 8
at 5. He ...