Opinion
CASE NO. 6:06-cv-1761-Orl-31KRS.
April 18, 2007
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 6). Respondents filed a response to the amended petition in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. No. 12). Petitioner filed a reply to the response (Doc. No. 16).
Petitioner alleges three claims for relief in his petition: (1) the trial court improperly denied him assistance of counsel, (2) his plea was involuntary, and (3) the trial court improperly ordered restitution. As discussed below, the Court concludes that the petition is untimely and must be denied.
I. Procedural History
Petitioner was charged by information with one count of fraudulent use of personal identification information in violation of section 817.568(2)(c), Florida Statutes. On December 16, 2004, Petitioner entered a plea of nolo contendere, and the trial court sentenced him to a five-year term of imprisonment.
On January 31, 2005, Petitioner filed a notice of appeal. The Fifth District Court of Appeal of Florida ordered Petitioner to show cause why the appeal should not be dismissed for lack of jurisdiction based on untimeliness. Petitioner responded to the appellate court's order; and on April 6, 2005, the appellate court dismissed the appeal for lack of jurisdiction.
This is the filing date under the "mailbox rule." See Thompson v. State, 761 So.2d 324, 326 (Fla. 2000) ("[W]e will presume that a legal document submitted by an inmate is timely filed if it contains a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date, if that the pleading would be timely filed if it had been received and file-stamped by the Court on that particular date."). All further references to the filing date of pleadings by Petitioner shall be the filing date under the mailbox rule, unless otherwise noted.
Petitioner filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief on November 9, 2005. The state trial court dismissed the motion without prejudice on February 14, 2006. Petitioner did not appeal.
On February 26, 2006, Petitioner filed a second Rule 3.850 motion, which was denied on May 4, 2006. Petitioner did not appeal. On November 15, 2006, Petitioner filed a state petition for writ of habeas corpus, which was denied on December 4, 2006.
II. Petitioner's Habeas Corpus Petition is Untimely
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 retroactively applicable to cases on collateral review; or
(D) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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 under this section.28 U.S.C. § 2244(d).
Pursuant to § 2244(d)(1)(A), Petitioner had one year, absent any tolling, from the date his conviction became final to file his federal habeas corpus petition. Petitioner's state court judgment is dated December 16, 2004. He then had thirty days (until January 15, 2005) to file a direct appeal, see Fla. R. App. P. 9.140(b)(3). Thus, Petitioner's conviction became final on January 15, 2005. Petitioner then had through January 15, 2006, absent any tolling to file the instant petition.
Under § 2244(d)(2), the one year was tolled during the pendency of Petitioner's "properly filed" state post-conviction proceedings. Petitioner's first Rule 3.850 was filed on November 9, 2005, at which time 298 days (January 15, 2005, through November 9, 2005) of the one year had lapsed. The Rule 3.850 motion was dismissed on February 14, 2006, and Petitioner did not appeal. The time continued to toll during the thirty days in which Petitioner could have appealed the denial of his post-conviction motion. See Cramer v. Sec., Dept. of Corr., 461 F.3d 1380, 1384 (11th Cir. 2006) (holding that one-year period is tolled during the time in which the petitioner may file an appeal from the denial of a post-conviction motion). Prior to the expiration of the thirty days to appeal, however, Petitioner filed his second Rule 3.850 motion, which continued to toll the time. The second Rule 3.850 motion was denied on May 4, 2006, and Petitioner had thirty days, or until June 3, 2006, to appeal, but did not do so. Thus, the time tolled from November 9, 2005, through June 3, 2006. Petitioner then had sixty-seven days remaining in which to file his federal habeas petition, or until August 9, 2006. Petitioner filed the instant petition on November 15, 2006, ninety-eight days after the one year expired.
Even if the one year was tolled for the sixty five days that the untimely appeal was pending (January 31, 2005, through April 6, 2005), the instant habeas petition would still be untimely.
Petitioner's habeas petition was received by the Clerk of the Court on November 15, 2006. The petition, however, was not signed or dated. Thus, the petition was stricken, and Petitioner had twenty days to refile his petition (Doc. No. 4), which he did on November 27, 2006. There is no indication as to when Petitioner handed over his initial habeas petition to prison officials for mailing. In his reply to the response to the petition, Petitioner relies on the November 15, 2006, filing date with the Clerk as the date he filed his initial petition. (Doc. No. 16 at 10.) Based on Petitioner's failure to provide any evidence of when he gave prison officials the initial petition for mailing and his reference of November 15, 2006, as the date of filing, the Court concludes that November 15, 2006, was the date his habeas petition was filed.
Petitioner appears to claim that the one-year period should be subject to equitable tolling because (a) he had a staff infection in July and part of August 2006; (b) on approximately August 8, 2006, he was placed in segregated confinement for thirty days; and (c) he was moved to various correctional institutions during which time his legal papers were lost, misplaced, destroyed, or seized. "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 125 S.Ct. 1807, 1814 (2005). Moreover, Petitioner has the burden of showing extraordinary circumstances, and this Court must "take seriously Congress's desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." Calderon v. United States District Court, 128 F.3d 1283, 1289 (9th Cir. 1997), vacated on other grounds, 163 F. 3d 530 (9th Cir. 1998).
Petitioner's allegations simply do not rise to the level of extraordinary circumstances beyond his control which warrant equitable tolling of the one-year period set forth in 28 U.S.C. § 2244(d). "Illness-mental or physical-tolls a statute of limitations only if it actually prevents the sufferer from pursuing his legal rights during the limitations period." Price v. Lewis, 119 Fed.Appx. 725, 726 (6th Cir. 2005). Petitioner did not become ill until July of 2006, and his state post-conviction proceedings ended on June 3, 2006, approximately one month before his illness began. Thus, prior to his illness, he had sufficient time to file his petition. Furthermore, Petitioner admits that he filed prison grievances during the months of July and August. See Doc. No. 16 at 9-10. Thus, he has not shown that his illness prevented him from filing his habeas petition.
Likewise, Petitioner's allegations that he was in segregation and that his legal documents were misplaced or otherwise destroyed are unavailing. See, e.g., Akins v. United States, 204 F.3d 1086 (11th Cir.) (one-year limitations period is not equitably tolled based on prison lockdowns or misplacement of legal papers) cert. denied, 121 S. Ct. 410 (2000); see also Conerly-Rothwell v. Walter, 2006 WL 1009248, *6 (W.D. Wash. 2006) (noting that the denial of full access, "or even limited access to petitioner's legal materials is not an extraordinary situation which would prevent a petitioner from filing his or her petition within a timely manner. Petitioner was not prevented from filing a petition with the court simply declaring that his knowledge and recollection of all necessary facts or arguments may not be complete in order to meet the one-year statue [sic] of limitations."). Petitioner does not indicate the time period in which he was moved to the various correctional institutions nor does he indicate when his legal documents were allegedly misplaced or destroyed. See Doc. No. 16 at 10. Furthermore, even if Petitioner was in segregation for thirty days, his petition was over ninety days late. In sum, he has failed to demonstrate that he was unable to pursue his legal rights based on extraordinary circumstances.
Any of Petitioner's allegations that attempt to excuse his failure to file the instant petition within the one-year period of limitation and that are not specifically addressed herein have been found to be without merit.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. This case is DISMISSED WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment accordingly and is directed to close this case.
DONE AND ORDERED at Orlando, Florida.