Colon v. Sec'y
| Decision Date | 07 September 2018 |
| Docket Number | Case No. 8:15-cv-1935-T-36AAS |
| Parties | JOSE RAYMOND COLON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Jose Raymond Colon, a Florida prisoner, filed an amended 28 U.S.C. § 2254 petition for writ of habeas corpus challenging his convictions for trafficking in illegal drugs and conspiracy to traffic in heroin, rendered in the Thirteenth Judicial Circuit for Hillsborough County. (Dkt. 9). Respondent responded, and Colon replied. (Dkts. 16 and 23). Upon consideration, the petition for writ of habeas corpus will be denied. Grounds one through five and ground eight are without merit. (Dkt. 1). Grounds six, seven, and nine through eighteen of the amended petition are untimely and without merit.
Colon and Alex Torres-Corchado were charged with trafficking in illegal drugs (28 grams or more and less than 30 kilograms) and conspiracy to traffic in heroin (28 grams or more and less than 30 kilograms). Torres-Corchado pleaded guilty and testified at Colon's jury trial. The jury found Colon guilty as charged, and the state trial court sentenced him to 30 years in prison and a 25-year mandatory prison term on each count,to run concurrently. On March 13, 2009, the state appellate court per curiam affirmed the convictions and sentences. . The state appellate court also denied Colon's June 24, 2009, petition alleging his appellate counsel rendered ineffective assistance and denied rehearing August 20, 2009. . Additionally, the state appellate court affirmed the denial of Colon's March 22, 2010, motion for postconviction relief, and issued the mandate July 10, 2015 .
Colon's charges arose from a narcotics investigation police conducted on April 5, 2005 in Tampa. In a recorded meeting at a mall parking lot, an informant introduced the undercover officer, Detective Baumann, to Torres-Corchado, whom police knew to deal in heroin. Torres-Corchado and the detective discussed a heroin transaction. The detective advised Torres-Corchado that he had $10,000 and needed approximately an hour and a half to obtain the money and return. Torres-Corchado gave the detective a sample of the heroin.
Police utilized aerial and ground surveillance to identify co-conspirators and determine where Torres-Corchado went after the initial meeting. Torres-Corchado met with Colon at his apartment, and they departed in separate vehicles, with Colon's black Mazda in the lead. Torres-Corchado testified that they drove to a storage unit where Colon retrieved a backpack containing heroin. They returned to Torres-Corchado's house where Colon weighed the heroin.
Torres-Corchado, in a phone call, advised that he wanted to change the location ofthe deal to a 7-Eleven store. Aerial surveillance had been suspended for the purpose of refueling the helicopter. After the informant and officer arrived at the designated location, Torres-Corchado advised that he was across the street. The informant met Torres-Corchado at a Kash N' Karry store parking lot, and they went to Colon's Mazda. Colon handed Torres-Corchado a plastic bag containing the heroin. Colon and Torres-Corchado insisted that the informant take the bag, but the informant declined. When Torres-Corchado and the informant walked across the street to the undercover detective's vehicle, Colon repositioned his vehicle at a gas station.
Upon entering the detective's vehicle, Torres-Corchado produced the plastic bag and stated that it contained 112 grams. The detective informed Torres-Corchado that he had the money, and Torres-Corchado delivered the bag containing the heroin. After weighing the substance and giving the signal, surveillance officers converged and arrested Torres-Corchado. Colon fled in his Mazda at a high rate of speed. Given safety concerns about a vehicle pursuit at night, police utilized aerial surveillance to track the vehicle. Police apprehended Colon after he pulled into an apartment complex and ran to another vehicle.
Pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Colon's petition is governed by a one-year statute of limitations that begins to run on the latest of four triggering events, including the date on which the challenged 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 one-year limitation period is tolled during the pendency of "a properly filed application for State post-conviction or other collateral review" of theunderlying judgment. 28 U.S.C. § 2244(d)(2).
The state appellate court affirmed Colon's convictions and sentences on March 13, 2009. For purposes of § 2244(d)(1)(A), his judgment became final on June 11, 2009, when the 90-day period for petitioning the Supreme Court for certiorari review expired. See Green v. Sec'y, Dep't of Corr., 877 F.3d 1244, 1247 (11th Cir. 2017). The federal limitations period commenced the next day and ran for twelve days until the limitations period was tolled on June 24, 2009, when Colon filed his petition alleging ineffective assistance of appellate counsel. The state petition was pending until August 20, 2009, when the state appellate court denied rehearing. . The one-year limitations period then ran for 213 days before Colon filed his March 22, 2010, motion for postconviction relief. (Dkt. 18, Resp. Ex. 5 at 46-163). The postconviction motion was pending until the July 10, 2015 mandate in his postconviction appeal issued. . At that juncture, Colon had 140 days remaining on his one-year limitations period. He timely filed the original five-ground petition on August 14, 2015. (Dkt. 1). After his one-year limitations period expired, Colon filed an amended 18-ground petition on May 4, 2016. (Dkt. 9).
Grounds one through five and eight of the amended petition are timely.
Rule 15(c) provides that an amendment relates back to a timely-filed claim when the newly-asserted claim "arose out of the conduct, transaction, or occurrence set out" in the previous filing. Fed. R. Civ. P. 15(c)(1)(B). A claim asserted after the one-year period cannot be revived simply because it arises out of the same trial, conviction, or sentence as a timely-filed claim. Mayle v. Felix, 545 U.S. 644, 662 (2005). A new claim relates back to prior claims only if they are "tied to a common core of operative facts." Id. at 664. BecauseColon's amended petition was filed after the one-year limitation period for filing a Section 2254 petition had expired, the grounds in the amended petition are timely only if they relate back to claims in his original, timely petition.
In ground one of the original petition, Colon alleged that he was convicted of conspiracy and trafficking in heroin with insufficient evidence. In grounds two through five, Colon alleged that his trial counsel rendered ineffective assistance by: not deposing Officers Hernandez and Gray (ground two); not obtaining the surveillance helicopter's flight records (ground three); not properly objecting to the helicopter pilot's authentication of the surveillance video (ground four); and encouraging Colon not to testify at trial (ground five). The parties do not dispute that grounds one through five of the amended petition relate back to the grounds in the original petition.
Contrary to Respondent's argument that the remaining grounds in the amended petition are untimely (Dkt. 16 at 9), ground eight relates back to ground two of the original petition. These two grounds share a common core of operative facts: the surveillance video that Colon reviewed before trial and Officer Gray authenticated at trial had a gap of time that was not in the video when made by Officer Hernandez.
Grounds six, seven, and nine through eighteen are untimely.
The remaining grounds do not relate back to the original timely grounds. Specifically, grounds six, seven, and nine through eighteen of the amended petition are supported by factual allegations that differ in both time and type from claims in the original petition and are untimely. Although Colon disputes that these grounds do not relate back to the original petition, he does not specify any grounds that share a common core of operative facts.
Colon has not shown entitlement to equitable tolling
A petitioner "is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). He must show a causal connection between the extraordinary circumstances and the late filing of the petition. San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011). A prisoner bears the burden of proving that he is entitled to equitable tolling. Id. at 1268.
Colon presents no argument in his amended petition or his reply to the response that he is entitled to equitable tolling. In his request to amend the original petition, Colon alleged that he miscalculated the federal limitations period. He also alleged that an inmate law clerk prepared the original petition and that after the clerk's transfer to another facility, another clerk advised that the original petition was legally and factually insufficient and did not include all exhausted grounds. (Dkt. 6 at 2-3). To the extent that Colon's motion could be construed to argue that his late filing of new claims should be excused based on (1) his lack of legal knowledge and consequent confusion about the AEDPA's filing deadline and (2) his reliance on inadequate law clerk assistance, Colon fails to demonstrate the existence of extraordinary circumstances to justify equitable tolling.
A state prisoner's ignorance of the law...
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