Butler v. Sec'y, Case No. 3:12-cv-1207-J-39JRK

• Decision Date: 12 June 2015
• Docket Number: Case No. 3:12-cv-1207-J-39JRK
• Court: U.S. District Court — Middle District of Florida
• Parties: CURTIS BUTLER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

CURTIS BUTLER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:12-cv-1207-J-39JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

June 12, 2015

ORDER

I. Status

Petitioner Curtis Butler, an inmate of the Florida penal system, initiated this action on October 30, 2012,¹ pursuant to the mailbox rule, by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1). In the Petition, Petitioner challenges a 2005 state court (Suwannee County, Florida) judgment of conviction for sale or delivery of cocaine and possession of cocaine with intent to sell or deliver. Respondents submitted a Response to Petition for Writof Habeas Corpus (Response) (Doc. 15) with exhibits (Ex.). Petitioner submitted a Traverse to Order to Show Cause to Petition for Writ of Habeas Corpus (Reply) (Doc. 18). See Order (Doc. 6). This case is ripe for review.

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations on petitions for writ of habeas corpus. Specifically, 28 U.S.C. § 2244 provides:

(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 the 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 discoveredthrough 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 subsection.

28 U.S.C. § 2244(d). Like the vast majority of federal habeas petitions, § 2244(d)(1)(A) establishes the limitations period for Petitioner's claims.

Respondents contend that Petitioner has not complied with the one-year period of limitations set forth in 28 U.S.C. § 2244(d). The following procedural history is relevant to the one-year limitations issue. Petitioner was charged by information with (1) sale or delivery of a controlled substance: cocaine, and (2) possession of a controlled substance, cocaine, with intent to sell, manufacture, or deliver. Ex. 2. A jury returned a verdict of guilty of sale or delivery of cocaine, and of possession of cocaine with intent to sell or deliver. Ex. 3 at 278; Ex. 4. On September 22, 2005, the court adjudicated Petitioner guilty, entered judgment, and sentenced Petitioner to concurrent fifteen-year sentences. Ex. 6 at 68-75. Petitioner appealed. Ex. 7. The First District Court of Appeal affirmed per curiam on January 23, 2007. Ex. 11. Petitioner moved for rehearing, and on March 5, 2007, the First District Court of Appeal denied rehearing. Ex. 12. The mandate issued on March 21, 2007. Ex. 11. His convictionbecame final on June 4, 2007² (90 days after the order denying rehearing) ("According to rules of the Supreme Court, a petition for certiorari must be filed within 90 days of the appellate court's entry of judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days of the appellate court's denial of that motion.").

Meanwhile, on May 9, 2007, pursuant to the mailbox rule, Petitioner filed a Petition for a Writ of Quo Warranto in the trial court, attacking his conviction. Ex. 13. The trial court considered the motion, and on September 28, 2007, the trial court entered an order denying the motion on its merits, which was filed by the clerk on October 1, 2007. Ex. 14. Petitioner, pursuant to the mailbox rule, on October 23, 2007, filed a timely Notice of Appeal in the circuit court. The Suwannee County Clerk of Court filed the Notice of Appeal on October 29, 2007. Apparently, Petitioner also filed Directions to Clerk, a Motion for Leave to Proceed In Forma Pauperis, and an Affidavit of Insolvency on that date.³ Ex. 1 at 7.

As noted by Respondents, at that point it was a ministerial duty of the clerk of the circuit court to forward the notice of appeal to the appellate court. Response at 9. Unfortunately, inthis instance, the clerk failed to process the appeal and forward the notice of appeal to the appellate court. Id. As a result, Respondents contend that the appeal was never actually pending because the clerk failed to transmit the notice of appeal to the appellate court. Id. at 10-13.

Respondents assert that the statute of limitations period began to run on October 31, 2007, allowing for statutory tolling under AEDPA for a thirty-day period to file a notice of appeal from the October 1, 2007 order denying the petition for writ of quo warranto. Id. at 13. Assuming that is the case, the statute of limitations period ran from November 1, 2007 and ran for 245 days, until Petitioner filed a sworn amended Rule 3.850 motion in the circuit court on July 3, 2008.⁴ Ex. 18. In an order filed November 20, 2009, the court dismissed the amended Rule 3.850 motion, but, "[a]s to grounds one through three, pursuant to Spera v. State, 971 So.2d 754 (Fla. 2007), the Defendant shall have 30 days from the rendition of this order to file an amended motion which is facially sufficient under Fla. R. Crim. Pro. 3.850 andStrickland."⁵ Ex. 19 at 5. Petitioner sought and was granted extensions of time to file a second amended Rule 3.850 motion. Ex. 20. He filed his second amended Rule 3.850 motion on April 23, 2010. Ex. 21. In an order filed January 18, 2011, the circuit court denied the motion. Ex. 22. Petitioner appealed, and the period remained tolled until the First District Court of appeal dismissed the appeal on June 2, 2011. Ex. 27. The limitations period began to run on June 3, 2011, and ran for thirty-five days, when it was again tolled on July 8, 2011 by the appellate court's action of reinstating the appeal. Ex. 28. The mandate issued on appeal on February 16, 2012.⁶ Ex. 29. During the pendency of this appeal proceeding, Petitioner filed a pro se Rule 3.850 motion onAugust 30, 2011. Ex. 33. In an order filed March 13, 2012, the circuit court denied the pro se motion. Ex. 34. Petitioner had a thirty-day time period to appeal, tolling the limitations period until Thursday, April 12, 2012. "See Fla. R.Crim. P. 3.850(g) (providing movant 30 days to timely appeal all orders denying motion for post-conviction relief)." Hollinger v. Sec'y Dep't of Corr., 334 F. App'x 302, 304 (11th Cir. 2009) (per curiam) (footnote omitted) (allowing for a thirty-day period of time to appeal the denial of a Rule 3.850 motion in calculating the tolled period of time under the AEDPA clock when the petitioner did not file an appeal).

As such, Petitioner had 85 days remaining in the limitations period. The limitations period began to run again on April 13, 2012, and expired on Monday, July 9, 2012.⁷ His Petition, filed on October 30, 2012, is due to be dismissed as untimely unless he can avail himself of one of the statutory provisions which extends or tolls the limitations period.

Assuming the Petition is untimely filed, it is due to be dismissed unless Petitioner can establish that equitable tolling of the statute of limitations is warranted. The United States Supreme Court has established a two-prong test for equitable tolling, stating that a petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinarycircumstances stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010); Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1157-58 (11th Cir. 2014), cert. denied, 135 S.Ct. 1905 (2015). As an extraordinary remedy, equitable tolling is "limited to rare and exceptional circumstances and typically applied sparingly." Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 477 (11th Cir. 2014) (internal quotation marks omitted). The burden is on Petitioner to make a showing of extraordinary circumstances that are both beyond his control and unavoidable with diligence, and this high hurdle will not be easily surmounted. Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005), cert. denied, 546 U.S. 1108 (2006); Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir. 2004) (per curiam) (citations omitted).

Here, Petitioner asserts two grounds to justify equitable tolling. First, he argues that pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012), his untimely filing is excused because of his counsel's unprofessional conduct during his state, collateral postconviction proceedings. As recently noted,

The Eleventh Circuit has expressly rejected petitioner's argument that Martinez applies to overcome the statute of limitations bar. Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014) (holding that "the Martinez rule explicitly relates to excusing a procedural default of ineffective-trial-counsel claims and does not apply to AEDPA's statute of limitations or the tolling of that period.").

Sledge v. Jones, No. 3:14-cv92/MCR/CJK, 2015 WL 521057, at *4 (N.D. Fla. Feb. 9, 2015). As a result, the holding in Martinez is inapplicable to this case and does not excuse Petitioner's untimely filing of his Petition. As succinctly explained in Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir.), cert. denied, 135 S.Ct. 106 (2014):

As our discussion shows, the Martinez rule explicitly relates to excusing a procedural default of

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