Dotson v. Buss

• Decision Date: 21 June 2011
• Docket Number: Case No. 3:08cv489/LC/CJK
• Parties: DANIEL DOTSON, Petitioner, v. EDWIN G. BUSS, Respondent.
• Court: U.S. District Court — Northern District of Florida

DANIEL DOTSON, Petitioner, v. EDWIN G. BUSS,¹Respondent.

Case No. 3:08cv489/LC/CJK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

Dated: June 21, 2011

ORDER and

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Doc. 1). Respondent has filed a response to the petition, providing relevant portions of the state court record and asserting a statute of limitations defense, arguing alternatively that the petition is without merit. (Doc. 17). Petitioner has replied. (Docs. 24, 32). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that thepleadings and attachments before the court show that the petition is untimely and should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

On January 9, 2006, the Circuit Court of Escambia County, Florida adjudicated petitioner guilty of two counts of sexual battery on a child less than 12 years of age, and two counts of aggravated child abuse, in Case Number 05-1656. The convictions were pursuant to petitioner's counseled guilty plea. (Doc. 17, Ex. M, pp. 125-33).²Petitioner was sentenced to life imprisonment on each sexual battery count and 30 years imprisonment on each aggravated child abuse count, with all sentences running concurrently. (Id.). Judgment was rendered on January 9, 2006. (Id.). Petitioner did not directly appeal from the judgment.

On January 21, 2006, petitioner filed a motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(l). (Ex. A, pp. 1-2; see also Doc. 1, Ex. H). The motion was summarily denied by order rendered February 13, 2006. (Ex. A, p. 3; see also Doc. 1, Ex. H).³ Petitioner's motion for rehearing was denied on March 7, 2006. (Ex. A, pp. 4-6). On March 20, 2006, petitioner filed a notice of appeal with the Florida First District Court of Appeal ("First DCA"). (Doc. 24, Ex. H). The First DCA assigned case number 1D06-1618, and ordered petitioner to show cause why his appeal should not be dismissed as untimely. (Ex. D). Upon petitioner's response(Ex. E), the appeal was dismissed on September 11, 2006, for lack of jurisdiction. Dotson v. State, 937 So.2d 1188 (Fla. 1st DCA 2006) (per curiam) (copy at Ex. F). The First DCA's written opinion provided in full as follows:

Having considered the appellant's response to this Court's order of July 13, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on March 20, 2006, appealing the order on the appellant's postconviction motion, rendered on February 13, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the unauthorized motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R. App. P. 9.110(b).

Id. The mandate issued October 10, 2006. (Id.). On September 19, 2006, petitioner filed a "Notice to Invoke Discretionary Jurisdiction" in the Florida Supreme Court. (Ex. G). The parties submitted jurisdictional briefs. (Exs. H, I). Petitioner's notice was treated as a petition for review and denied on January 31, 2007, with the court stating in relevant part: "the Court having determined that it should decline to accept jurisdiction, it is ordered that the petition for review is denied." Dotson v. State, 950 So.2d 413 (Fla. 2007) (Table) (copy at Ex. J).

On February 8, 2007, petitioner filed a motion for appointment of counsel in the Florida trial court. (Ex. K, pp. 1-3). The motion was denied on February 23, 2007. (Ex. K, pp. 4-21). Petitioner filed a notice of appeal on March 1, 2007. (Ex. K, p. 22). The First DCA dismissed the appeal on June 6, 2007, for petitioner's failure to pay the filing fee or obtain an order of insolvency. (Ex. L).

On March 13, 2007, petitioner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. (Ex. M, pp. 1-8; see also Doc. 1, Ex. D). The motion was later amended (id., pp. 9-80; see also doc. 1,ex. D), and a memorandum of law added (id., pp. 81-110; see also doc. 1, ex. F). By orderrendered January 16, 2008, the motion was dismissed in part and denied in part. (Ex. M, pp. 111-165). The First DCA summarily affirmed on September 5, 2008. Dotson v. State, 989 So.2d 1186 (Fla. 1st DCA 2008) (Table) (copy at Ex. O). The mandate issued October 1, 2008. (Ex. P).

Petitioner initiated this federal habeas proceeding on October 8, 2008. (Doc. 1, p. 6).

DISCUSSION

Because petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA governs this petition. Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). Pursuant to 28 U.S.C. § 2244, a one-year period of limitation applies to the filing of a federal habeas corpus petition by a person in custody pursuant to a state court judgment. The limitation period runs 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 discovered through the exercise of due diligence.

§ 2244(d)(1). According to the tolling provision of § 2244(d), the time during which a "properly filed" application for state postconviction or other collateral review is pending shall not be counted toward the limitations period. 28 U.S.C. § 2244(d)(2).

Here, petitioner has not asserted that a State-created impediment to his filing existed, that he bases his claims on a right newly recognized by the United States Supreme Court, or that the facts supporting his claims could not have been discovered through the exercise of due diligence before his conviction became final. Accordingly, and as it turns out, conclusively, the statute of limitations must be measured from the remaining trigger, which is the date on which his conviction became final. See 28 U.S.C. § 2244(d)(1).

Because petitioner did not appeal his judgment of conviction, the judgment became final for purposes of § 2244(d)(1) on February 8, 2006, which was 30 days after rendition of the January 9, 2006 judgment. See Fla. R. App. P. 9.140(b)(3) (an appeal by a defendant in a criminal case is commenced by filing a notice of appeal "at any time between the rendition of a final judgment and 30 days following rendition of a written order imposing sentence."); see also Fla. R. App. P. 9.020(h) (defining "rendition" as the filing of the signed, written order); Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) (holding that where petitioner did not seek direct review of his judgment of conviction or sentence, his judgment of conviction (entered upon his guilty plea) became "final" for purposes of § 2244 on the date the time for seeking direct review expired), abrogated on other grounds by Wall v. Kholi, — U.S. —, 131 S. Ct. 1278, 179 L. Ed. 2d 252 (2011); Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988) (holding that if defendant does not appeal the conviction or sentence, judgmentof conviction and sentence become final when the 30-day period for filing a direct appeal expires).

At that time, petitioner's motion to withdraw plea was pending, which tolled the limitations period. Therefore, although the limitations period was triggered on February 8, 2006, it was statutorily tolled until March 15, 2006, the date the 30-day period for timely appealing the February 13, 2006 order denying plea withdrawal expired. See Fla. R. App. P. 9.110(b); cf. Cramer v. Sec'y, Dep't of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006) (holding that a postconviction application remains "pending" until the time to seek appellate review expires if a petitioner does not file a timely notice of appeal). The limitations period was not tolled during the pendency of petitioner's untimely appeal. Evans v. Chavis, 546 U.S. 189, 126 S. Ct. 846, 849, 163 L. Ed. 2d 684 (2006) (explaining that a claim is "pending" during "the period between (1) the lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.") (citation omitted); see also Artuz v. Bennett, 531 U.S. 4, 8, 11, 121 S. Ct. 361, 148 L . Ed. 2d 213 (2000) ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" including "time limits upon its delivery"); see e.g., Neal v. Sec'y, Dep't of Corr., 271 F. App'x. 893, 896 (11th Cir. 2008) (holding that state prisoner's appeal from order denying state postconviction relief did not toll limitations period for federal habeas corpus petition, given state court's determination that the appeal was untimely). This court must defer to the First DCA's ruling that the appeal was untimely. Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S. Ct. 1807, 1812, 161 L. Ed. 2d 669 (2005) ("When a postconviction petition is untimely under state law, 'that [is] the end of thematter' for purposes of § 2244(d)(2)." (citation omitted)); Stafford v. Thompson, 328 F.3d 1302, 1305 (11th Cir. 2003) (holding that "this Court must give 'due...