Donovan v. Dixon

• Decision Date: 29 March 2022
• Docket Number: 3:21-cv-1027-MCR-MJF
• Parties: TIMOTHY JOHN DONOVAN, Petitioner, v. RICKY D. DIXON, Respondent.
• Court: U.S. District Court — Northern District of Florida

TIMOTHY JOHN DONOVAN, Petitioner,
v.
RICKY D. DIXON, Respondent.

No. 3:21-cv-1027-MCR-MJF

United States District Court, N.D. Florida, Pensacola Division

March 29, 2022

REPORT AND RECOMMENDATION

Michael J. Frank United States Magistrate Judge

Petitioner Timothy John Donovan has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, with a supporting memorandum. Docs. 1, 2. Respondent (“the State”) moves to dismiss the petition as untimely. Doc. 10. Donovan opposes the motion. Doc. 18. The undersigned concludes that no evidentiary hearing is required for the disposition of this matter, and that Donovan's petition should be dismissed as untimely.^[1]

I. Background and Procedural History

On May 11, 1979, Donovan, then 16-years old, murdered Theresa Kay Moore by stabbing her repeatedly and cutting her throat with a knife. Doc. 10-1, Ex. A

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(Indictment); Ex. G at 63 (Disposition Order).^[2] In Escambia County Circuit Court Case No. 1979-CF-1310, Donovan was indicted for first-degree premeditated murder. Id. The jury found Donovan guilty as charged, Ex. B, and recommended a sentence of life imprisonment. Ex. C.

On January 17, 1980, the trial court sentenced Donovan to life imprisonment without the possibility of parole for 25 years. Ex. D. The Florida First District Court of Appeal (“First DCA”) affirmed on July 9, 1981. Donovan v. State, 400 So.2d 1306 (Fla. 1st DCA 1981) (per curiam) (copy at Ex. E). Donovan did not seek further direct review. Doc. 1 at 3-4.

On May 8, 2017, Donovan filed in the state circuit court a counseled motion for resentencing and/or judicial review of his sentence. Doc. 10, Ex. G at 71-72. Donovan's motion was based on Miller v. Alabama, 567 U.S. 460 (2012); Atwell v. State, 197 So.3d 1040 (Fla. 2016); and Fla. Stat. §§ 775.082(1)(b), 921.1401 and 921.1402(2)b.^[3]

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On April 18, 2018, the State filed a response stating that Donovan was entitled to resentencing under Florida's new juvenile resentencing statutes and Florida Rule of Criminal Procedure 3.781. Ex. G at 76. Subsequently, however, on October 20, 2018, the State filed another response after issuance of the Florida Supreme Court's opinion in State v. Michel, 257 So.3d 3 (Fla. 2018). In Michel, the state supreme court held that a sentence of life with the possibility of parole after 25 years was not the equivalent of a life sentence and thus did not violate the Eighth Amendment of the United States Constitution or the holding in Miller. See Ex. G at 77-78; see also Michel, 257 So.3d at 4.

Donovan's counseled reply argued that the decision in Michel did not control and that a parole hearing was not the equivalent of a resentencing proceeding contemplated by Miller, supra, or Florida' juvenile resentencing statutes. Ex. G at 91-98.

On December 21, 2018, the state circuit court denied Donovan's motion for resentencing or judicial review. Ex. G at 102-03. The state court concluded: “[G]iven Defendant's parole eligibility and the Florida Supreme Court's holding in Michel, the Court finds defendant is not entitled to resentencing or judicial review under

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sections 921.1401 and 921.1402.” Ex. G at 102 (citing Franklin v. State, 258 So.3d 1239 (Fla. 2018)). The First DCA affirmed per curiam and without written opinion. Donovan v. State, No. 1D19-0402, 284 So.3d 976 (Fla. 1st DCA 2019) (Table) (copy at Ex. J). The mandate issued December 23, 2019. Ex. M.

On September 7, 2020, Donovan file a pro se petition for writ of habeas corpus in the Florida Supreme Court, requesting that the court order either (1) the State to release him from custody or, (2) the trial court to conduct a juvenile resentencing under Miller and Atwell. Ex. N. The Florida Supreme Court denied Donovan's petition on October 28, 2020, as procedurally barred. Ex. O.

On June 1, 2021, Donovan filed a pro se petition for writ of habeas corpus in the First DCA, alleging ineffective assistance of postconviction appellate counsel in his appeal from the circuit court's order denying his motion for resentencing. Ex. P. On September 22, 2021, the First DCA dismissed the petition. Donovan v. State, No. 1D21-1819, 324 So.3d 1284 (Fla. 1st DCA 2021) (copy at Ex. Q). The opinion stated:

DISMISSED. See Fla. R. App. P. 9.141(d)(5) Gilbert v. State, 315 So.3d 791, 791 (Fla. 1st DCA 2021) (“As Florida Rule of Appellate Procedure 9.141(d) does not provide a vehicle to challenge postconviction appellate counsel's ineffectiveness, the petition is dismissed.”).

Ex. Q.

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Donovan filed his pro se federal habeas petition on September 7, 2021. Doc. 1 at 20. Donovan's petition raises two claims: (1) his sentence violates the Due Process Clause of the Fourteenth Amendment; and (2) his sentence violates the Equal Protection Clause of the Fourteenth Amendment. Id. at 9-11; Doc. 2 at 5-9. Donovan states that he raised both claims in his counseled motion for resentencing, but the issues were not presented in his postconviction appeal because his appellate counsel was ineffective. Doc. 1 at 9-11.

The State asserts that Donovan's petition is time-barred under 28 U.S.C. § 2244(d)(1). Doc. 10. The State explains that the petition was filed more than one year after Donovan's judgment became final; more than one year after...