Opinion
Case No. 05-20286-Civ-SEITZ.
August 12, 2005
Roman Villacres, South Bay, FL, Pro Se.
REPORT OF MAGISTRATE JUDGE
Roman Villacres, a state prisoner confined at South Bay Correctional Institution at South Bay, Florida, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, attacking his conviction entered upon a negotiated plea of guilty in Case No. 91-17825 in the Circuit Court of the Eleventh Judicial Circuit of Florida at Miami-Dade County.
This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b) (1) (B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
For its consideration of the petition with supporting memorandum of law, the Court has the petitioner's response to an order regarding the limitations period, and the respondent's response to an order to show cause with multiple exhibits.
Villacres raises the sole claim that his plea of guilty entered on June 18, 1991, was involuntary because he was not advised of the deportation consequences of his plea and resultant conviction.
The procedural history of this case is as follows. Villacres was charged by information filed on June 6, 1991, with sexual battery on a person less than twelve years of age. (DE# 10; App. A). Pursuant to a plea agreement entered into with the state, on June 18, 1991, Villacres entered a plea of guilty to the reduced charge of familial/custodial sexual battery. (DE# 10; App. B, C). On the same date, he was sentenced to a ten-year term of probation with special terms and conditions of probation. Id. The court ruled that there was a possibility of termination of the term of probation after five years if Villacres successfully completed the mentally disordered sexual offender treatment program and alcohol program. Id. Villacres did not take a direct appeal from his conviction or sentence. (Petition at ¶ 8.) (DE# 1). Villacres subsequently violated the terms and conditions of his probation and, after revocation proceedings conducted on November 15, 1994, during which Villacres admitted violating the charged probation violation, Villacres' probation was revoked and he was sentenced to a ten-year term of probation, which term commenced on that date. (DE# 10; App. B). Villacres was again required to successfully complete the mentally disordered sexual offender treatment program. Subsequent to his conviction, removal proceedings were instituted against Villacres by the then Immigration and Naturalization Service, currently the Bureau of Immigration and Customs Enforcement, after which Villacres was deported to his native country of Ecuador on April 16, 1998. (DE# 10; App. D, E, F).
Villacres had entered the United States as a visitor in Miami on or about December 12, 1983. (Notice of Intent to Issue a Final Administrative Removal Order) (DE# 10; App. D). Villacres' status expired six months later and he was never admitted as a permanent resident. Id. Due to the subject conviction, deportation proceedings were instituted, resulting in a Final Administrative Removal Order. (Final Administrative Removal Order) (DE# 10; App. E). In the deportation proceedings, Villacres admitted the allegations and charge in the Notice of Intent, admitted that he was deportable, and waived his right to contest the charges. (DE# 10; App. F). Pursuant to his wishes, Villacres was deported to Ecuador on April 16, 1998, having waived the fourteen-day execution period. Id.
Sometime on or after April 16, 1998, Villacres returned to the United States. (Notice of Intent/Decision to Reinstate Prior Order dated January 22, 2002). (DE# 10; App. G). On May 8, 2001, a second affidavit of violation of probation was filed, apparently for committing a new offense in the State of New York, which was subsequently amended on January 11, 2002. (DE# 10; App. B). During the revocation proceedings, the then United States Immigration and Naturalization Service served Villacres with a Notice of Intent/Decision to Reinstate Prior Order on January 22, 2002, stating that Villacres was removable as an alien who had entered the United States after having been previously removed and that he should again be removed pursuant to the earlier entered order. (DE# 10; App. G).
On April 5, 2002, represented by retained counsel, Villacres filed in the state trial court a motion to vacate judgment and sentence pursuant to Fla.R.Crim.P. 3.850 based upon the Florida Supreme Court decision in Peart v. State, 756 So.2d 42 (2000) (holding that a trial court's failure to inform a defendant of the immigration consequences of his plea is a cognizable claim for postconviction relief). (DE# 10; App. H). Villacres alleged that his plea of guilty had been unlawfully entered in that he had not been informed at the time of the entry of his plea that he was subject to deportation if not a United States citizen. (DE# 10; App. H). After an evidentiary hearing conducted on July 19, 2002, and extensive argument by counsel, Villacres' motion for postconviction relief was denied by the trial court upon a finding that there were other grounds supporting Villacres' deportation. (Transcript of Hearing; Order Denying Defendant's Motion) (DE# 10; App. K, L). Since Villacres had not established prejudice, the trial court ruled that he was not entitled to postconviction relief based upon applicable Florida law, such as,Prieto v. State, 824 So.2d 924 (Fla. 3 DCA 2002). Villacres filed a motion for rehearing, and an evidentiary hearing was conducted on the motion. (Transcript of Evidentiary Hearing conducted on October 11, 2002) (DE# 10; App. N). The motion was denied on March 5, 2003, nunc pro tunc to October 11, 2002. (DE# 10; App. P). On October 18, 2002, after probation revocation proceedings, Villacres was found guilty of the charged violation, his term of probation was revoked, and he was sentenced to a term of imprisonment of ten years. (DE# 10; App. 0).
Villacres prosecuted an appeal from the denial of his Rule 3.850 motion. (DE# 10; App. Q). On October 22, 2003, the Florida Third District Court of Appeal per curiam affirmed without written opinion the trial court's ruling; Villacres v. State, 857 So.2d 889 (Fla. 3 DCA 2003) (table), and the mandate issued on November 7, 2003. (DE# 10; App. R). Villacres' motions for rehearing were denied on January 14, 2004. See http://www.3dca.flcourts.org. Villacres apparently next filed a motion to correct an illegal sentence on September 22, 2004, alleging that he had not received all credit for time served for which he was entitled. (Response to Petition for Writ of Habeas Corpus at 8) (DE# 10). The trial court granted the motion on November 2, 2004, and Villacres was awarded an additional 67 days credit towards his sentence. Id.
Villacres next came to this Court, filing on January 26, 2005, the instant federal habeas corpus petition pursuant to 28 U.S.C. § 2254. In response to the order to show cause, the respondent solely asserts that this petition should be dismissed as untimely filed. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed for the first time a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A). Prisoners who are attacking a conviction or sentence that became final prior to the enactment of the AEDPA must be accorded a reasonable time after the AEDPA's effective date within which to file petitions for habeas relief pursuant to section 2254.Cf Wilcox v. Florida Dep't of Corrections, 158 F.3d 1209 (11 Cir. 1998);Goodman v. United States, 151 F.3d 1335 (11 Cir. 1998). In this context one year has been held to be a reasonable time, and therefore petitioners attacking convictions or sentences that became final before the AEDPA's effective date will be accorded the one-year post-AEDPA period, commencing on the Act's effective date, within which to file for section 2254 relief. Id.
The Eleventh Circuit recognizes the "mailbox" rule in connection with the filing of a prisoner's petition for writ of habeas corpus. Adams v. U.S., 173 F.3d 1339 (11 Cir. 1999) (prisoner's pleading is deemed filed when executed and delivered to prison authorities for mailing). (Petition at 7) (DE# 1).
The statute provides that the limitations 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 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 factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244 (d) (1).
Although the Act did not contain an effective date provision for the foregoing amendment, it is presumed to have become effective on April 24, 1996, the date the law was enacted.Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (citations omitted) (absent a clear direction by the Congress to the contrary, a law takes effect on the date of its enactment).See also Hatch v. Oklahoma, 92 F.3d 1012, 1014 n. 2, citing Bradshaw v. Story, 86 F.3d 164, 166 (10 Cir. 1996).
The one-year reasonableness period following the effective date of the AEDPA is subject to the AEDPA's express tolling provision for time spent pursuing state post-conviction relief or other collateral review. 28 U.S.C. § 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4 (2000). See also Fields v. Johnson, 159 F.3d 914 (5 Cir. 1998). Moreover, the limitations period is also subject to equitable tolling in "rare and exceptional cases." See Helton v. Secretary for Dept. of Corrections, 259 F.3d 1310, 1312 (11 Cir. 2001) (stating that "[e]quitable tolling can be applied to prevent the application of the AEDPA's statutory deadline when `extraordinary circumstances' have worked to prevent an otherwise diligent petitioner from timely filing his petition."), cert. denied, 535 U.S. 1080 (2002); Sandvik v. United States, 177 F.3d 1269, 1271 (11 Cir. 1999). See also Davis v. Johnson, 158 F.3d 806 (5 Cir. 1998), cert. denied, 526 U.S. 1074 (1999).
A properly-filed application is now defined as one whose "delivery and acceptance are in compliance with the applicable laws and rules governing filings," which generally govern such matters as the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. Artuz v. Bennett, 531 U.S. 4 (2000) (overruling Weekley v. Moore, 204 F.3d 1083 (11 Cir. 2000)).
The judgment of conviction and sentence in the instant case became final at the latest on July 18, 1991, the expiration of the thirty-day appeal period from the judgment.See Fla.R.App.P. 9.110(b); Demps v. State, 696 So. 2d 1296, 1297, n. 1 (Fla. 3 Dist. 1997); Ramos v. State, 658 So.2d 169 (Fla. 3 Dist. 1995);Caracciolo v. State, 564 So.2d 1163 (Fla. 4 Dist. 1990); Gust v. State, 535 So. 2d 642 (Fla. 1 Dist. 1988). Because the 1991 conviction at issue was entered prior to the effective date of the Act, Villacres had until the close of April 24, 1997, to file a timely § 2254 petition challenging its constitutionality. This federal petition for writ of habeas corpus was, however, not filed until January 26, 2005, well-beyond one year after the grace-period had expired regarding the conviction. Accordingly, the petition is time-barred pursuant to 28 U.S.C. § 2244(d) (1) (A) unless the appropriate limitations period was extended by properly filed applications for state post-conviction or other collateral review proceedings. 28 U.S.C. § 2244(d)(2).
Since Villacres challenges only the original judgment of conviction, not the subsequent probation revocations and resultant sentences, the dates of the later proceedings are irrelevant here regarding when the judgment and conviction became final for limitations purposes. See Sykosky v. Crosby, 2005 WL 1334600, *2 (N.D.Fla. 2005); Yekimoff v. New York State Div. of Parole, 2004 WL 1542256, *2-3 (S.D.N.Y. 2004). But see Walker v. Crosby, 341 F.3d 1240 (11 Cir. 2003) (holding that the statute of limitations for habeas application that contained claims challenging the resentencing judgment as well as claims challenging the original judgment of conviction begins to run on the date the resentencing judgment became final and not on date that original judgment became final); Hepburn v. Moore, 215 F.3d 1208 (11 Cir. 2000) (holding that, in certain cases, the limitations period should run from the date a petitioner's re-sentencing order becomes final).
As indicated above, Villacres pursued postconviction relief, by filing a motion pursuant to Fla.R.Crim.P. 3.850, an appeal from the denial, and a motion to correct illegal sentence. Villacres is, however, not entitled to tolling time for the state postconviction proceedings, because they were instituted after the grace period had already expired. See 28 U.S.C. § 2244(d).See also Tinker v. Moore, 255 F.3d 1331, 1332 (11 Cir. 2001) (holding that a state petition filed after expiration of the federal limitations period cannot toll the period, because there is no period remaining to be tolled); Webster v. Moore, 199 F.3d 1256, 1258-60 (11 Cir.) (holding that even properly filed state court petitions must be pending in order to toll the limitations period), cert. denied, 531 U.S. 991 (2000). Accordingly, as correctly asserted by the respondent, the instant petition is untimely and is barred by the applicable limitations period.
An order was entered requiring the petitioner to state whether one or more of the statutory factors justify consideration of this petition for writ of habeas corpus. (DE# 6). The petitioner was notified that failure to demonstrate the existence of at least one of the four factors would probably result in dismissal of the petition. Id. Although Villacres has filed a response to this Court's order, he has presented no valid justification for his failure to timely file his federal habeas corpus petition attacking the instant conviction. See Response to Limitations Order. (DE# 79). Villacres essentially contends in his response that the petition was not filed earlier because the claim was not discovered until the Florida Supreme Court decided Peart v. State, 756 So.2d 42, 44 (Fla. 2000) on April 13, 2000. He apparently contends that he is entitled to statutory and/or equitable tolling time during his state postconviction proceeding, where he challenged his conviction pursuant to the state case, so that his federal habeas corpus petition, filed within one from the date he was denied postconviction relief, should not be deemed time-barred. Villacres' assertion is unavailing.
In Florida, effective January 1, 1989, Fla.R.Crim.P. 3.172(c) (6) requires the trial court to inform a defendant of the possible immigration consequences of a guilty plea. The Florida Supreme Court held in Peart v. State, 756 So.2d 42 (Fla. 2000), that a defendant may obtain postconviction relief if he or she was not advised of the immigration consequences of a plea and was prejudiced by the lack of advice since the failure to so advise violates Fla.R.Crim.P. 3.172(c) (8).
Villacres is improperly attempting to extend the one year limitation period based upon the date of a state appellate case which established new state law. Title 28 U.S.C. Section 2244 (d) (1) (C) provides for the timely filing of a petition for writ of habeas corpus within one year of the date on which the Supreme Court newly recognizes a right which is retroactively applicable to cases on collateral review. In this case, for the statute of limitations to run from a time other than the date the judgment became final, the claim of this federal petition must be based upon a constitutional right newly recognized by the Supreme Court that has been made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2244(d) (1) (C). Villacres can make no such claim. Further, Villacres' Rule 3.850 motion was filed more than one-year after the decision was issued in Peart (i.e., 722 days). The fact that Villacres' Rule 3.850 motion may have been timely filed in the Florida court pursuant to the Peart decision has no bearing on this case.See generally Bingham v. Anderson, 21 F.Supp.2d 639, 640-41 (S.D.Miss. 1998) (holding that Mississippi three year statute of limitations to file motions for post conviction relief did not have the effect of amending the AEDPA so that one desiring to seek federal habeas corpus review can do so if he files a motion for post conviction relief before a Mississippi court within three years and then files in federal court within one year thereafter plus a period of time equal to the time for which the motion for post conviction relief was pending). Accordingly, Villacres is not entitled to statutory tolling pursuant to 28 U.S.C. § 2244(d) (1) (C) and/or (d) (1) (D) for the time his Rule 3.850 motion was pending.
As noted by the respondent, even if the Peart decision triggered the running of the statute of limitations, Villacres filed the instant petition 357 days beyond the one-year limitations period.
The Florida Supreme Court held in Peart that defendants who gained knowledge of the threat of deportation prior to the filing date of the decision had two years from the decision to file a rule 3.850 motion alleging their claims for relief. All defendants who subsequently discovered threats of deportation had two years from the date of such discovery to file their claims for relief. Peart v. State, 756 So.2d 42, 46 (Fla. 2000).
Under § 2244 (d) (1) (D), the time begins to run when petitioner knows, or through due diligence, could have discovered, the important facts for his or her claims, not when petitioner recognizes the facts' legal significance. Owens v. Boyd, 235 F.3d 356, 359 (7 Cir. 2000).
Also, equitable tolling would not be appropriate in circumstances such as those present in this case where the petitioner was clearly not diligent in pursuing his claim. The Eleventh Circuit has characterized the equitable-tolling standard as a two-part test, stating that "equitable tolling is available only if a petitioner establishes both extraordinary circumstances and due diligence." Diaz v. Secretary for Dept. of Corr., 362 F.3d 698, 702 (11 Cir. 2004) (emphasis supplied). The record indicates that Villacres has not pursued his attack on his guilty plea with reasonable diligence and alacrity. For example, Villacres filed his Rule 3.850 motion 722 days after the Peart decision had issued, which was 1465 days after he became aware of his imminent deportation (i.e., April 1, 1998). Further, Villacres did not institute the instant federal habeas corpus proceedings until approximately one year after the Rule 3.850 proceedings had been concluded in the state courts, where the identical issue presented here was raised. Villacres is clearly not entitled to the benefit of equitable tolling. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (holding that principles of equitable tolling do not extend to what is best a garden variety claim of excusable neglect); Fisher v. Johnson, 174 F.3d 710 (5 Cir. 1999) (noting that "equity is not intended for those who sleep on their rights"). Finally, the record does not indicate that Villacres was in any way impeded by any unconstitutional State action in pursuing state postconviction relief or filing this federal petition for writ of habeas corpus and Villacres' status as an unskilled layperson does not excuse the delay.
It is well settled that ignorance of the law and lack of legal assistance, even for an incarcerated prisoner, generally do not excuse prompt filing. See, e.g., Fisher v. Johnson, 174 F.3d 710, 714 (5 Cir. 1999) (noting that "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing"), cert. denied, 531 U.S. 1164 (2001);Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5 Cir. 1991) (holding equitable tolling of limitations period within the Age Discrimination in Employment Act was not warranted by plaintiff's unfamiliarity with legal process, his lack of representation, or his ignorance of his legal rights). See also United States v. Flores, 981 F.2d 231, 236 (5 Cir. 1993) (neither an inmate's pro se status, illiteracy, deafness, or lack of legal training amounts to factors external to the inmate to excuse an abuse of the writ); Worthen v. Kaiser, 952 F.2d 1266, 1268-68 (10 Cir. 1992) (petitioner's failure to discover the legal significance of the operative facts does not constitute cause).
In conclusion, Villacres has not demonstrated that he is entitled to equitable or statutory tolling. The time-bar is ultimately the result of Villacres' failure to properly and timely prosecute state postconviction proceedings and then this federal habeas corpus petition. He has, therefore, presented no valid justification supported by the record for his failure to timely file his federal habeas corpus petition attacking the instant conviction. This petition for writ of habeas corpus filed on January 26, 2005, is untimely and the claim raised is time-barred pursuant to 28 U.S.C. § 2244 (d) (1)-(2), and should not be considered on the merits.
Even if the petition was not time-barred, and the claim was reviewed on the merits, Villacres would not be entitled to habeas corpus relief. Although it is desirable that counsel or the court advise defendants of the collateral consequences of pleading guilty, it is well settled that a failure to advise a defendant of the deportation consequences of a guilty plea does not render the guilty plea involuntary under Federal Constitutional law.SeeUnited States v. Lejarde-Rada, 319 F.3d 1288 (11 Cir. 2003) (holding that a district court need not explain the possible collateral consequences of a guilty plea); United States v. Campbell, 778 F.2d 764, 768 (11 Cir. 1985) (stating that "deportation is a collateral consequence of a guilty plea, and therefore under Fed.R.Cr.P. 11, need not be explained to the defendant in order to ensure that the plea was voluntary."),quoting, United States v. Russell, 686 F.2d 35, 38 (D.C. Cir. 1982); accord, United States v. Castro, 26 F.3d 557 (5 Cir. 1994); United States v. Campbell, 778 F.2d 764 (11 Cir. 1985). Consequently, the state court's denial of the claim is in accordance with federal constitutional principles and should not be disturbed here.See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362 (2000).
In fact, the Florida Supreme Court explicitly recognized such in Peart, stating as follows:
[W]e note that in applying the instant limitation period, Florida law provides defendants greater protection regarding this kind of error than that provided under federal law. See United States v. Morse, 36 F.3d 1070, 1071 (11th Cir. 1994) (holding that advising a defendant of the possibility of deportation is not a requirement under federal law since deportation is only a collateral, versus a direct, consequence of a plea); United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990) (same). Peart v. State, 756 So.2d 42, 46 n. 4 (Fla. 2000).
The petitioner raised the same claim of this federal petition in his Rule 3.850 motion, which was denied on the merits following an evidentiary hearing. The trial court found that, even if not appropriately advised of the deportation consequences of his plea, Villacres suffered no prejudice as a result in that there was another independent basis for deportation. The trial court ruling was affirmed on appeal. See Villacres v. State, 857 So.2d 889 (Fla. 3 DCA 2003) (table). Villacres was appropriately denied relief. See Prieto v. State, 824 So.2d 924 (Fla. 3 DCA 2002) (holding that defendant not entitled to vacate plea agreement on ground that he was prejudiced by not being advised of potential immigration consequences of his guilty plea in that defendant had unrelated prior conviction which also formed basis for deportation proceedings).
It is therefore recommended that this petition for writ of habeas corpus be dismissed as untimely filed pursuant to 28 U.S.C. § 2244(d)(l)-(2) and, in the alternative, denied.
Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.