United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
Kellman, a Florida inmate, initiated this action by filing a
Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus
by a Person in State Custody (Doc. 1) in which he challenges
a conviction for sexual activity with a minor entered in 2009
in Hillsborough County, Florida. Respondent filed a limited
response to the petition, which incorporates a motion to
dismiss the petition as time-barred (Doc. 9). Upon
consideration, the motion to dismiss will be granted.
Kellman pleaded guilty to the charge and was sentenced to 60
months probation on February 5, 2009 (Doc. 10-2, docket pp.
36-37). He did not appeal. On September 16, 2009, his
probation was revoked (id., docket p. 39), and he
was sentenced to 15 years in prison (Id., docket pp.
41-46). His sentence was affirmed on appeal on December 17,
2010 (Id., docket p. 53).
October 4, 2011, Mr. Kellman filed a Motion to Correct
Illegal Sentence (Id., docket pp. 57-61). The motion
was denied on November 16, 2011 (Id., docket pp.
64-66). The denial of the motion was affirmed on appeal on
October 17, 2012 (id., docket p. 81), and the appellate court
mandate issued on November 15, 2012 (Id., docket p.
December 27, 2011, Mr Kellman filed a Motion for
Postconviction Relief under Rule 3.850, Fla.R.Crim.P.,
challenging his conviction (Id., docket pp. 85-91).
The Rule 3.850 motion was dismissed as untimely on February
13, 2012 (Id., docket pp. 93-96). On February 10,
2012, he filed another Rule 3.850, this time challenging the
revocation of his probation (Id., docket pp.
98-102). That Rule 3.850 motion was denied on June 5, 2013
(Id., docket pp. 104-97). The denial of the motion
was affirmed on appeal on September 12, 2014 (id.,
docket p. 114), and the appellate court mandate issued on
October 7, 2014 (Id., docket p. 116).
January 3, 2014, Mr. Kellman filed a Motion for Collateral
Relief in which he alleged that his plea was involuntary due
to ineffective assistance of trial counsel (Id.,
docket pp. 118-27). The motion was construed as a Rule 3.850
motion and dismissed as untimely (Id., docket pp.
131-34). The dismissal of the third Rule 3.850 motion was
affirmed on appeal on March 11, 2015 (id., docket p.
142), and the appellate court mandate issued on June 8, 2015
(Id., docket p. 146).
March 10, 2016, Mr. Kellman filed his fourth Rule 3.850
motion in which he challenged his conviction and argued that
his judgment was void because the statute under which he was
convicted was invalid (Id., docket pp. 148-52). That
Rule 3.850 motion was denied on March 31, 2016 (Id.,
docket pp. 155-57). The denial of the motion was affirmed on
appeal on December 7, 2016 (id., docket p. 164), and
the appellate court mandate issue on January 6, 2017
(Id., docket p. 166).
9, 2017, Mr. Kellman filed a Petition for Writ of Habeas
Corpus (Id., docket pp. 168-80). The petition was
denied on June 27, 2017 (Id., docket pp. 196-99). On
October 3, 2017, Mr. Kellman filed a Motion for Writ of
Habeas Corpus (Id., docket pp. 201-20). The motion
was denied on January 8, 2018 (Id., docket pp.
223-25). Mr. Kellman's federal habeas petition was filed
in this Court on October 22, 2018 (Doc. 1, docket p. 1).
moves to dismiss the petition as time-barred under 28 U.S.C.
§2244(d), arguing that more than one year passed after
Mr. Kellman' judgment of conviction became final. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a one-year statute of limitations for federal
habeas petitions. 28 U.S.C. § 2244(d)(1). Lawrence
v. Florida, 549 U.S. 327, 331 (2007). The limitations
period runs from the date on which the judgment became final
by the conclusion of direct review or the expiration of the
time for seeking such review" § 2244(d)(1)(A).
Additionally, "[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 subsection." § 2244(d)(2).
Kellman's petition challenges his conviction rather than
his revocation of probation (see Doc. 1). Accordingly, the
pertinent judgment here is the judgment of conviction.
See, e.g., West v. Sec'y, Dep't of Corr.,
2011 WL 166325, at *2 fh. 6 (M.D. Fla. Jan. 18, 2011)
("Because West challenges only the 2001 convictions, the
federal limitation commenced running in September 2001 when
the time expired for seeking direct review of those
convictions and not from the date of judgment imposed for the
probation revocation."). Because Mr. Kellman did not
file a direct appeal of that judgment (entered February 5,
2009), it became final 30 days later, on March 7, 2009, when
the time to appeal expired. See Armstrong v. State,
148 So.3d 127 (Fla. 2d DC A 2014) (judgment final 30 days
after its rendition, when the time to appeal expires). Mr.
Kellman therefore had until March 7, 2010, to file a federal
petition for a writ of habeas corpus challenging his judgment
of conviction. His petition, filed in 2018, is therefore
untimely.Accordingly, Mr. Kellman's petition is
time-barred unless he can show that he is entitled to
equitable tolling of the limitations period.
limitations period under § 2244(d) is subject to
equitable tolling. Sibley v. Culliver, 377 F.3d
1196, 1204 (11th Cir.2004). Section 2244 "permits
equitable tolling 'when a movant untimely files because
of extraordinary circumstances that are both beyond his
control and unavoidable with diligence.'" Steed
v. Head, 219 F.3d 1298, 1300 (11th Cir.2000) (quoting
Sandvik v. United Stales, 177 F.3d 1269, 1271 (11th
Cir.1999) (per curiam)); Arthur v. Allen, 452 F.3d
1234, 1252 (11th Cir.2006) (petitioner must show both
extraordinary circumstances and diligence). Equitable tolling
only applies, however, where the litigant satisfies his
burden of showing that he has been pursuing his rights
diligently and that some extraordinary circumstance
"stood in his way and prevented timely filing."
Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549,
Kellman has not satisfied his burden of showing circumstances
justifying equitable tolling. In his petition he implicitly
argues that his untimeliness should be excused because he has
only an 8th grade education and been treated for
mental illness (see Doc. 1, docket p. 13). These allegations
are entirely vague and conclusory and therefore insufficient
to warrant equitable tolling. See Hutchinson v.
Florida,677 F.3d 1097, 1099 (11th Cir. 2012)
("allegations supporting equitable tolling must be
specific and non-conclusory"). Moreover, Mr.
Kellman's limited education does not constitute an
extraordinary circumstance justifying equitable tolling.
See Perez v. Fla., 519 Fed.Appx. 995, 997 (11th Cir.
2013) ("we have not accepted a lack of a legal education
and related confusion or ignorance about the law as excuses
for a failure to file in a timely fashion."). Finally,
Mr. Kellman's vague and unsupported allegation that he
has received treatment for an unspecified mental illness
since he was twelve years old does not justify equitable
tolling, especially considering that the alleged mental
illness did not prevent him from filing numerous
post-conviction motions and appeals in state ...