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Cramer v. Secretary, Department of Corrections

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

October 2, 2019

MARK CRAMER, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, and FLORIDA ATTORNEY GENERAL, Respondents.

          ORDER

          WILLIAM F.JUNG UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         The 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.

         I. BACKGROUND

         Petitioner 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 7-17.

         Petitioner (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.

         In May 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 14.[1]

         On February 28, 2014, [2] 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.

         On 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.

         Nonetheless, 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.[3] 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.

         On 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. Dkt.7-7at56.

         Petitioner 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.

         II. TIMELINESS

         Respondents 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.[4] The Court discusses each of these points, below.

         1. 28 U.S.C.$2444(1)(B)Does Not Apply.

         Federal 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 (B).[5]

         In his 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.

         The 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.

         Regardless, 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).

         But 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)).[6] 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.

         2. The Petition is Untimely Under 28 U.S.C. § 2244(d)(1)(A).

         Because § 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.. . .").

         The 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).[7] 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).

         Before 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).[8] 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.[9] 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).

         3. Equitable Tolling is Not Warranted.

         Petitioner 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 ...


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