Drew v. Department of Corrections, No. 99-4176.

• Citation: 297 F.3d 1278
• Decision Date: 18 July 2002
• Docket Number: No. 99-4176.
• Parties: Scott Leigh DREW, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Michael W. Moore, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

297 F.3d 1278

Scott Leigh DREW, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Michael W. Moore, Respondents-Appellees.

No. 99-4176.

United States Court of Appeals, Eleventh Circuit.

July 18, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas William Risavy, Miami, FL, for Petitioner-Appellant.

James J. Carney, West Palm Beach, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT and MARCUS, Circuit Judges, and O'KELLEY^*, District Judge.

MARCUS, Circuit Judge:

Petitioner Scott Leigh Drew, a Florida inmate, appeals a decision of the district court dismissing as time-barred his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Drew argues first that his petition was not time-barred under the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), 28 U.S.C. § 2241, et seq., because the statutory period should have been tolled during the pendency of his third motion for post-conviction relief in the state court. In the alternative, he asserts that any time bar should have been disregarded under the doctrine of equitable tolling. We are persuaded by neither argument and accordingly we affirm the judgment of the district court.

I.

A detailed statement of the complex procedural history of this case is essential to its resolution. On September 29, 1987, a jury in Palm Beach County convicted Drew of first degree felony murder and armed burglary stemming from the shooting death of his ex-wife six days after their divorce became final in September 1986. Following the conviction, Drew was sentenced to life imprisonment for the murder conviction as well as a concurrent term of twenty years for the burglary. Alleging that the trial court erred in excluding important psychiatric testimony, Drew appealed his conviction. The Fourth District Court of Appeal rejected his claim and affirmed the conviction on October 11, 1989. See Drew v. State, 551 So.2d 563 (Fla.Dist.Ct.App.1989).

With his direct appeal complete, Drew embarked on an effort to obtain collateral relief that has lasted for more than a decade. On March 28, 1990, he filed his first motion for post-conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure. The motion raised only one issue, namely that Drew was deprived of an impartial jury drawn from a cross-section of the community. The trial court and the Fourth District both denied relief.

After the first motion was denied, Drew filed a second motion under Rule 3.850 on October 14, 1992. This time, he raised five issues, including three claims about the use of a taped confession as well as claims of prosecutorial misconduct and ineffective assistance of counsel. The trial court immediately rejected the motion as unclear, unspecific, and convoluted, and the Fourth District affirmed again on January 6, 1993. Next, on August 6, 1993, Drew filed a state court petition for a writ of habeas corpus on the ground that his appellate counsel had performed ineffectively. The Fourth District denied the petition on September 1, 1993.

Drew then brought his post-conviction challenge to federal court for the first time, filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 16, 1994. The petition raised the five issues presented previously in the second Rule 3.850 motion, as well as the claim of ineffective assistance of appellate counsel and a new allegation that the jury before which he was tried did not represent a fair cross-section of the community. The magistrate judge recommended that the case be dismissed as unexhausted because six of the seven claims had not been adequately presented to the state court. Although the magistrate judge recognized that these claims could possibly be considered procedurally barred from federal habeas review due to Drew's failure to raise them in his first post-conviction challenge, she recommended dismissal without prejudice after the state itself suggested that such a remedy was appropriate. The magistrate judge did note, however, that the claims might in fact be time-barred: "Although a Rule 3.850 motion may now be time barred, under the unusual circumstances of this case the State courts might not apply their procedural bar." The district court adopted the magistrate judge's Report and Recommendation and dismissed Drew's petition without prejudice in an order on March 28, 1995.

What happened next is relevant to the equitable tolling claim in this case. Drew asserts that he did not receive a copy of the district court's dismissal order until February 20, 1996, almost a year after it was issued. He says that he sent various letters to the Clerk of the Court for the Southern District of Florida inquiring about the status of his petition, but that he received no response. Finally, on January 24, 1996, the Clerk's office sent Drew a docket report indicating that the petition had been dismissed in March 1995. In response, Drew states that he again sent letters to the Clerk asking for a copy of the order, but he claims that his letters were ignored. Eventually, Drew wrote directly to Judge King, the district court judge, who sent a copy of the order on February 20, 1996.

Drew alleges that he began working on a third Rule 3.850 motion as soon as he received the district court order dismissing his habeas petition and calling for state court exhaustion. After sending a draft to his aunt in Texas for typing and organization, Drew filed his third motion on April 23, 1996. The motion raised the five contentions included in the previous 3.850 motion. The state argued that the claims were procedurally barred because the motion was untimely under the two-year statute of limitations prescribed by Rule 3.850(b) and because the motion was successive under Rule 3.850(f). On August 25, 1996, the trial judge rejected the motion for the reasons set forth in the state's brief. The Fourth District affirmed the denial on July 18, 1997.

On October 9, 1997, Drew filed the instant petition, which raised the same seven claims presented in his first federal habeas effort. On December 23, 1998, the magistrate judge recommended that the petition be dismissed as untimely under the AEDPA's one-year statute of limitations. While it was clear that the petition was not filed before the April 23, 1997 deadline that applied to all individuals convicted before April 24, 1996, see Hurley v. Moore, 233 F.3d 1295, 1296 (11th Cir.2000), the court confronted the question of whether the limitations period should have been tolled for the period during which the third 3.850 motion was pending in the state court. As the federal habeas corpus statute explains, the limitations period is tolled for "[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." 28 U.S.C. § 2244(d)(2). The magistrate judge held that tolling was not in order because Drew's state court motion had not been "properly filed" since it was deemed procedurally barred as untimely and successive under Florida law. The Report and Recommendation went on to explain that, in some cases, a petitioner in Drew's situation might be entitled to equitable tolling of the statute of limitations since the first petition was expressly dismissed without prejudice with instructions to exhaust in state court. However, the magistrate judge stated that such equitable relief was not appropriate in this case since Drew had allowed more than a year to elapse after the issuance of the district court's dismissal order before he filed his third 3.850 motion. The Report and Recommendation noted that excusing Drew's delay would contravene the AEDPA's goal of "curtailing just such dilatory practices."

Drew objected to the magistrate judge's Report and Recommendation on December 31, 1998, arguing that his delay in filing the third 3.850 motion was justified because he did not receive the district court's dismissal order until February 1996. Drew also argued that the AEDPA limitations period should have been tolled because the third 3.850 motion was "properly filed" as it complied with state procedural rules governing filing. The district court adopted the magistrate judge's Report and Recommendation on January 6, 1999, dismissing the petition as untimely pursuant to 28 U.S.C. § 2244(d).

II.

Drew advances two reasons why the district court erred in dismissing his petition. Initially, he claims that the AEDPA statute of limitations should have been tolled for the time during which his third 3.850 motion was pending in the state court. In the alternative, he says that he is entitled to equitable tolling because the delay in filing resulted from state court proceedings required by the order dismissing his first habeas corpus petition without prejudice.

We review de novo a district court's decision to dismiss a petition for a writ of habeas corpus. See Delancy v. Fla. Dep't of Corr., 246 F.3d 1328, 1329 (11th Cir.2001). We also review a district court's legal decision on equitable tolling de novo. See Helton v. Sec'y for Dep't of Corr., 259 F.3d 1310, 1312 (11th Cir.2001). However, the district court's determinations of the relevant facts will be reversed only if clearly erroneous. See Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir. 2001). This standard requires us to affirm a district court's findings of fact unless "the record lacks substantial evidence" to support that determination. Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1558 (11th Cir.1995). We have squarely held that a determination regarding a party's diligence is a finding of fact that "will not be disturbed unless clearly erroneous." Walters v. City of Atlanta, 803 F.2d 1135, 1145 (11th Cir.1986). Finally, we review a trial court's decision whether to conduct an...