Banks v. Sec'y
| Decision Date | 26 April 2016 |
| Docket Number | Case No. 8:16-cv-154-T-33TGW |
| Parties | CLINTON BANKS, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Clinton Banks, a state of Florida inmate proceeding pro se, filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 6) and memorandum of law (Doc. 7). Banks' convictions were entered by the Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. Respondent filed a response (Doc. 9), which incorporates a motion to dismiss the petition as time-barred. Banks filed a reply (Doc. 12). Upon review, the petition must be dismissed as time-barred.
A jury convicted Banks of three counts of kidnapping with a firearm and three counts of robbery with a firearm. (Doc. 11, Ex. 1.) He was sentenced to an overall term of 40 years in prison. (Id.) The state appellate court per curiam affirmed the convictions and sentences. (Doc. 11, Ex. 2.) It also denied Banks' motion for rehearing. (Id.)
Banks filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which the state court denied after an evidentiary hearing. (Doc. 11, Ex. 4.) The state court denied Banks' motion for rehearing. (Doc. 11, Ex. 5.) Banks' postconviction appeal was dismissed as untimely. (Doc. 11, Ex. 7, July 31, 2014 Order.) Banks subsequently filed numerous petitions for writs of mandamus, certiorari, and habeas corpus in the state courts.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year period of limitation for filing a § 2254 federal habeas petition. This period runs from the later of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The limitation 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).
In direct appeal proceedings, the Second District Court of Appeal denied Banks' motion for rehearing on June 23, 2010. (Doc. 11, Ex. 2.) Banks' judgment became final 90 days later, on September 21, 2010, when the time for filing a petition for writ of certiorari in the United States Supreme Court expired. Clay v. United States, 537 U.S. 522, 527 (2003); Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002).
Banks had already filed his postconviction motion by that date. (Doc. 11, Ex. 3.) After denying the postconviction motion, the state court denied Banks' motion for rehearing on May 22, 2014. (Doc. 11, Exs. 3, 5.) This order informed Banks that he had 30 days to file an appeal. (Doc. 11, Ex. 5.) Banks' period to file an appeal of the postconviction court's order expired on June 23, 2014. When his AEDPA limitation period began to run the nextday, Banks had one year to file his federal habeas petition absent any tolling motions.1
The state appellate court determined that Banks' June 26, 2014 notice of postconviction appeal was untimely. (Doc. 11, Ex. 7, July 31, 2014 Order.)2 Therefore, the limitation period was not tolled because the notice of appeal was not properly filed in accordance with state procedural requirements. An application is properly filed Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted). See also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) ( ).
Banks' September 2, 2014 petition for writ of mandamus filed in the Florida Supreme Court (Doc. 11, Ex. 8) was not a tolling application. See Wall v. Kholi, 562 U.S. 545, 553 (2011) (). In this mandamus petition, Banks asked the Florida Supreme Court to require"the district court to correct its ruling on the notice of appeal" that was dismissed as untimely. (Doc. 11, Ex. 8, p. 1.) Accordingly, the petition did not involve a "collateral review" of the judgment.
Banks' petition for writ of certiorari filed in the Florida Supreme Court on December 17, 2014 was treated as a mandamus petition and denied as repetitive on April 21, 2015. (Doc. 11, Ex. 12.) Banks requested that the Florida Supreme Court direct the Second District Court of Appeal to reinstate his appeal. (Id.) As with Banks' initial mandamus petition, this was not a tolling application because it sought to compel judicial action rather than to obtain collateral review of the judgment.3
Banks states that he filed "a judicial notice" in the Florida Supreme Court on December 17, 2014. (Doc. 6, p. 15.) This is not contained in the record before the Court; however, Banks states that it was stricken as untimely. (Id.) Therefore, this untimely filing was not a tolling application. See Artuz, 531 U.S. at 8; Pace, 544 U.S. at 417.
The federal habeas petition indicates that Banks filed a petition for writ of habeas corpus in the Circuit Court for the Fifth Judicial Circuit on January 28, 2015, which was denied on February 17, 2015. (Doc. 6, pp. 3, 15.) Although Banks' convictions and sentences were entered by the Circuit Court for the Thirteenth Judicial Circuit, he is incarcerated within the territorial jurisdiction of the Fifth Judicial Circuit. Neither the habeas petition filed in the Circuit Court for the Fifth Judicial Circuit nor the order denying it arecontained in the record. However, there is no indication that this was a tolling application because any habeas petition filed in the Fifth Judicial Circuit could not have properly raised claims involving collateral review of the judgment. See Valdez-Garcia v. State, 965 So.2d 318, 319-22 (Fla. 2d DCA 2007) ().
Banks next filed a petition for writ of habeas corpus in the Florida Supreme Court on April 6, 2015. Citing Baker v. State, 878 So.2d 1236 (Fla. 2004), the Florida Supreme Court dismissed Banks' habeas petition because relief was not authorized. (Doc. 11, Ex. 13.) In Baker, the Florida Supreme Court announced that it would dismiss as unauthorized any habeas petition that sought relief appropriate under Florida Rule of Criminal Procedure 3.850 but (1) was untimely under Rule 3.850, (2) raised claims that could have been raised at trial or on direct appeal, or (3) was a successive motion not permitted under Rule 3.850. 878 So.2d at 1245-46. The Florida Supreme Court then struck Banks' motion for rehearing as unauthorized. (Doc. 11, Ex. 13.) Accordingly, neither Banks' habeas petition nor his petition for rehearing was "properly filed" to constitute a tolling application.
Banks did not file any tolling application in state court on or before June 24, 2015. Therefore, the AEDPA limitation period expired before Banks filed his habeas petition on January 18, 2016.4 Banks has not argued or demonstrated that his untimely petition maybe considered on the basis of equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010) (). Nor does he present proof of his actual innocence that would permit review of his habeas petition. See McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1928 (2013) ().
Finally, even if Banks' petition was timely filed, he would not be entitled to relief because he has not raised any claims cognizable in a federal habeas proceeding. In Ground One, Banks claims that the Second District Court of Appeal erred in finding his postconviction appeal untimely, resulting in a due process violation. In Grounds Two and Three, Banks argues that his due process rights were violated by the Fifth District Court of Appeal's failure to address the merits of his claims concerning the trial court's jurisdiction. In Ground Four, Banks asserts that he was denied due process when the Second District Court of Appeal entered a per curiam affirmance of his judgment and sentence without addressing his claims on the merits.
A state prisoner may only obtain federal habeas relief if he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). See Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Banks challenges the manner in which state courts processed his appeals. Whether the state appellate courts properly appliedstate procedural rules or reviewed the merits of Banks' claims presents no federal issue, as this question does not raise a constitutional challenge to the validity of Banks' convictions.
Thus, Banks has not presented a cognizable claim for federal habeas review. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (). Banks' assertion of a Fourteenth Amendment violation does not...
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