Bolin v. Sec'y, Dep't of Corr.

• Decision Date: 01 July 2013
• Docket Number: Case No. 8:10-cv-1571-T-27EAJ
• Parties: OSCAR RAY BOLIN, JR., Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

OSCAR RAY BOLIN, JR., Petitioner,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:10-cv-1571-T-27EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

DONE AND ORDERED: July 1, 2013

ORDER

Before the Court is Oscar Ray Bolin, Jr.'s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). The petition raises two claims of ineffective assistance of counsel. Respondent has responded in opposition (Dkt. 13), and Bolin, through counsel, filed a reply (Dkt. 19). At the direction of the Court, the parties filed supplemental briefing on whether the Petition is time-barred. Upon consideration, Bolin's petition for federal habeas relief (Dkt. 1) is DENIED.

Background

Bolin was convicted and sentenced to death for the murder of Teri Lynn Matthews. His conviction was affirmed by the Florida Supreme Court. Bolin v. State, 869 So.2d 1196 (Fla. 2004), cert. denied, 543 U.S. 882 (2004).¹ He sought post conviction relief in a Florida Rule 3.851 motion, asserting seven grounds. After conducting an evidentiary hearing, the state trialcourt denied the motion. The Florida Supreme Court affirmed. Bolin v. State, 41 So.3d 151 (Fla. 2010).

Timeliness

Under the AEDPA, a federal habeas petition must be filed within one year from when a state court conviction becomes final.² 28 U.S.C. § 2244(d)(1)(A) Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998). The limitation period is tolled while a "properly filed" application for state post conviction relief is pending. 28 U.S.C. § 2244(d)(2). A "properly filed" application complies with "the applicable laws and rules governing filings:"

"[A]n application is ' properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, 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, 8 (2000).

Bolin's conviction became final for purposes of the AEDPA on October 4, 2004, when the Supreme Court denied certiorari. Washington v. United States, 243 F.3d 1299, 1300 (11th Cir. 2001). His one year limitation period would therefore expire on October 4, 2005.

On October 3, 3005, one day before the AEDPA limitations period expired, Bolin filed, through counsel, a Florida Rule 3.851 motion seeking post conviction relief. Bolin contends that this filing tolled the AEDPA limitation period.

A properly filed Rule 3.581 motion would have tolled the AEDPA one year limitation period. 28 U.S. C. § 2244(d)(2). However, Respondent moved to strike Bolin's initial Rule 3.851 motion because it did not contain a legally sufficient oath (Dkt. 15; Ex. C1 at 110). Bolin's Rule3.851 motion was denied by the state court without prejudice because it included "an invalid oath, qualified with the language 'to the best of his knowledge.'" (Dkt. 15; Ex C 1, p. 112). The state court deemed the motion "legally insufficient." (Id.). On January 5,2006, Bolin re-filed his Rule 3.851 motion with the required oath (Dkt. 15, Ex. C5). By that time, however, more than one year had passed since his conviction became final, specifically, 459 days.

Ultimately, Petitioner's Rule 3.851 motion was denied and the Florida Supreme Court affirmed. Bolin v. State, 41 So.3d 151 (Fla. 2010). That court's mandate issued on July 30, 2010. Bolin had already filed his federal habeas petition on July 16, 2010 (Dkt. 1). The issue is whether Bolin's initial Rule 3.851 motion was "properly filed" for tolling purposes under 28 U.S.C. § 2244(d)(2). Where a motion is not "properly filed," there is no tolling of the limitation period. Sibley v. Culliver, 377 F.3d 1196, 1202 (11th Cir. 2004).

A Florida Rule 3.851 motion for post conviction relief is required to be made under oath. Fla. R. Crim. P. Rule 3.851(e)(1) ("The motion shall be under oath . . ."); Chavez v. Sec. Fla. Dep't of Corr., 647 F.3d 1057, 1064 (11th Cir. 2011), cert. denied, 132 S.Ct. 1018 (2012). Where, as here, a Florida post conviction motion does not include the required oath and as a result is denied by the state court, the motion is not "properly filed" under the AEDPA. Hurley v. Moore, 233 F.3d 1295, 1298 (11th Cir. 2000) (Florida Rule 3.850 motion which did not comply with oath requirement did not toll AEDPA limitation period), cert. denied, 532 U.S. 1013 (2001), cert. denied, 532 U.S. 1013 (2001).³ Bolin's initial Rule 3.851 motion was therefore not "properly filed."

Nor did the filing of Bolin's second Rule 3.851 motion, which corrected the "invalid oath," relate back to his initial Rule 3.851 motion. Sibley v. Culliver, 377 F.3d at 1204.

Petitioner may not attempt to resurrect a terminated statute of limitations by subsequently filing documents that purport to "relate back" to previously submitted documents that were, in themselves, insufficient to toll the statute.

Sibley v. Culliver, 377 F.3d at 1204, citing Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003); Jones v. Secretary, Florida Dept. of Corrections, 499 Fed.Appx. 945, 951 (11th Cir. 2012). Accordingly, since Bolin's initial motion was not "properly filed," it could not toll the AEDPA limitation period. In other words, once his limitation expired, "there was nothing left to toll." Sibley v. Culliver, 377 F.3d at 1204.

The only way for Bolin to avoid the time bar under § 2254(d)(1) is to demonstrate that equitable tolling applies. Sibley v. Culliver, 377 F.3d at 1204 (limitations period under § 2244(d), "like most other nonjurisdictional limitations periods-is also subject to equitable tolling.").⁴ Rather than attempting to demonstrate that equitable tolling applies, however, Bolin contends that his corrected Rule 3.851 motion relates back under Florida law and therefore should be considered to have been filed prior to the expiration of the one year AEDPA limitation period. (Dkt. 30, p. 6)("Because the motion was timely filed, it is not necessary to address equitable tolling."). Specifically, relying on a 2005 Florida Supreme Court decision, Bolin contends that he "is entitled to have the January 18, 2006 motion relate back to the original filing date of October 3, 2005" and "[t]he original motion was filed within the one year AEDPA requirement." Id., at p.5.

Bolin's reliance on Bryant v. State, 901 So.2d 810 (Fla. 2005) is misplaced. Although the Florida Supreme Court in Bryant observed in dicta that an amended Rule 3.851 motion would have related back to an original filing which had been stricken because of deficiencies, that is a matter of Florida law and procedure. Whether Bolin's corrected Rule 3.851 motion relates back to his initial motion for purposes of the AEDPA "rest[s] on the nature of the federal limitations period and federal law." Jones v. Secretary, Florida Dept. of Corrections, 499 Fed. Appx. at 945, 952 (11th Cir. 2012). As noted, precedent in this Circuit compels a conclusion that Bolin's corrected Rule 3.851 motion did not, as a matter of federal law and application of the AEDPA, relate back to his improperly filed initial Rule 3.851 motion and accordingly, Bolin's federal habeas petition is time barred.⁵

It appears that Respondent inadvertently miscalculated the time limitation when it responded to Bolin's federal petition. However, because Bolin offers no basis on which to apply equitable tolling, he could not have been significantly prejudiced by the delayed focus on the AEDPA limitations issue. Nothing he could have done would change the fact that the AEDPA limitation period expired before he had a "properly filed" Rule 3.851 motion pending in state court. In the interest of justice, however, the merits of Bolin's federal habeas petition will be addressed. See Day v. McDonough 547 U.S. at 210.

Facts Underlying Conviction

In affirming Petitioner's conviction on direct appeal, the Florida Supreme Courtsummarized the facts underlying Bolin's conviction:

Mathews' body was discovered on December 5, 1986, near the side of a road in rural Pasco County. The body was found wrapped in a sheet imprinted with a St. Joseph's Hospital logo. The body had multiple head injuries, was shoeless, and was wet, although it had not rained recently. The victim's car keys were found close to the body. Evidence collected from the scene included nylon pantyhose and a pair of white pants. There was a single set of truck tire tracks leading to the body. The victim's car was found the next day by Mathews' boyfriend, Gary McClelland, who was worried about her disappearance and attempted to trace her steps after she left work the previous day. The victim's red Honda was found parked at the Land O' Lakes Post Office, with its headlights still on. The victim's mail was found scattered on the ground, and her purse was found undisturbed on the seat inside her car.

Bolin's half-brother, Phillip, testified that he was awakened by Bolin on the night of December 4, 1986. Bolin appeared to be nervous and told Phillip that he needed Phillip's help. The two walked outside, and then Phillip heard a moaning sound, which he thought could have been a wounded dog. Instead, he saw a sheet-wrapped body, and Bolin told him that the girl was shot near the Land O' Lakes Post Office. Bolin then walked over and straddled the body with his feet, raised a wooden stick with a metal end, and hit the body several times. Phillip said that he turned away because he was scared to watch, but compared the sound to hitting a pillow with a stick. Bolin next turned on a water hose and sprayed the body. Bolin demanded that Phillip help him load the body onto the back of a black Ford tow truck, and Phillip helped by picking up the body by the ankles. Phillip testified that he noticed there were no shoes on the body and that the girl was wearing pantyhose. Phillip refused Bolin's offer of money to go with him to dispose of the body, so Bolin went alone and returned twenty to thirty minutes later. He continued

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