United States District Court, M.D. Florida, Fort Myers Division
JAMES V. CUMMINGS, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Petitioner James Cummings' Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus Relief By a
Person in State Custody (Doc. 1) and Respondents' Limited
Response (Doc. 11). Petitioner did not reply despite the
opportunity to do so. (Doc. 14).
April 10, 2000, a jury convicted Petitioner of second-degree
murder. (Doc. 11, Ex. 2). He was then sentenced to life in
prison. The Second District Court of Appeal (“Second
DCA”) affirmed his conviction and sentence on February
23, 2001. See Cummings v. State, 783 So.2d 1065
(Fla. 2d DCA 2001). Petitioner never petitioned for
certiorari. Almost sixteen years later, on April 25, 2016,
Petitioner filed his first habeas petition in the Second
DCA-it was denied. (Doc. 11, Exs. 8-9). The court also denied
his motion for rehearing. Petitioner filed another habeas
petition but this time in the state circuit court. It too was
denied, the the Second DCA affirmed that decision. (Doc. 11,
Ex. 12-13; 16).
three months later, Petitioner turned to the federal court.
He gave this Petition to state prison officials for mailing
on September 4, 2018. (Doc. 1). The Petition, which alleges
the state court used an erroneous jury instruction and both
trial and appellate counsel were ineffective, was filed here
six days later. Respondents argue, however, the Petition is
untimely under 28 U.S.C. § 2244(d)(1) as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). The Court agrees.
AEDPA gives a person in custody under a state court judgment
one year to file a federal habeas petition. 28 U.S.C. §
2244(d)(1)(A) (stating, in pertinent part, the limitations
runs on “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review“); Robinson v. Sec'y,
Dep't of Corr., No. 2:16-CV-48-FTM-29MRM, 2019 WL
1429321, at *3 (M.D. Fla. Mar. 29, 2019). However,
“[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” the limitation period. 28 U.S.C.
conviction and sentence became final on May 24, 2001, which
was ninety days after the Second DCA affirmed both on direct
appeal. Petitioner had one year from then to file a federal
habeas petition. He did not do so. And he waited nearly
sixteen years to file any post-conviction motion. This is too
late under any reading of § 2244(d)(1).
Court cannot stop there because the one-year period may be
equitably tolled. See Williams v. Sec‘y, Fla.
Dep't of Corr., No. 5:12-CV-498-OC-29PRL, 2015 WL
4459503, at *2 (M.D. Fla. July 21, 2015). Equitable tolling
“is an extraordinary remedy which is typically applied
sparingly.” Steed v. Head, 219 F.3d 1298, 1300
(11th Cir. 2000); see also Diaz v. Dep't of
Corr., 362 F.3d 698, 700 (11th Cir. 2004) (finding
“rare circumstances” merit a finding of equitable
tolling). It applies only when a petitioner
“demonstrates (1) diligence in his efforts to timely
file a habeas petition and (2) extraordinary and unavoidable
consequences.” Arthur v. Allen, 452 F.3d 1234,
1252 (11th Cir. 2006). A court need not consider the second
requirement if the petitioner cannot meet the first. See
Diaz, 362 F.3d at 702 n.7 (stating the court need not
consider the petitioner's extraordinary circumstances
argument, given his unexplained 532-day delay in filing his
§ 2254 petition).
liberally considering the record, Petitioner has not shown
diligence in filing the Petition. He waited sixteen years
after his conviction and sentencing became final to file any
post-conviction relief. He does not explain why he waited so
long. With no explanation, the delay exhibits a lack of due
diligence. And because Petitioner has failed to establish an
equitable or statutory reason to toll the one-year period,
the Petition must be denied as untimely.
Petitioner James v Cummings' Petition for Writ of Habeas
Corpus Relief By a Person in State Custody (Doc. 1) is
Clerk of Court is DIRECTED to enter
judgment, terminate all pending motions, and close the file.