Dowe v. Sec'y, Fla. Dep't of Corr., Case No. 3:16-cv-162-J-34PDB

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtMARCIA MORALES HOWARD United States District Judge
Decision Date19 November 2018
Docket NumberCase No. 3:16-cv-162-J-34PDB

KEEMO DOWE, Petitioner,

Case No. 3:16-cv-162-J-34PDB


November 19, 2018


I. Status

Petitioner Keemo Dowe, an inmate of the Florida penal system, initiated this action on February 15, 2016,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1; Petition). In the Petition, Dowe challenges a 2008 state court (Duval County, Florida) judgment of conviction for trafficking in 3,4-methylenedioxymethamphetamine (MDMA). Dowe raises three grounds for relief. See Doc. 1 at 3-11.2 Respondents have submitted a memorandum in opposition to the Petition. See Answer to Petition for Writ of Habeas Corpus (Resp.; Doc. 10) with exhibits (Resp. Ex.). Dowe opted not to submit a brief in reply. See Docs. 11; 12. This case is ripe for review.

II. Procedural History

On October 31, 2008, by way of amended Information, the State of Florida (State) charged Dowe with possession of more than twenty grams of cannabis (count one),

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possession of MDMA (count two), and trafficking in MDMA (count three). Resp. Ex. A at 21-22. On February 24, 2009, Dowe, with the assistance of counsel, moved to sever count one from counts two and three. Id. at 38-39. Ultimately, Dowe proceeded to a trial only on count three, Resp. Ex. B at 3, at the conclusion of which, on March 6, 2009, the jury found him guilty as charged. Resp. Ex. A at 71. On April 6, 2009, the circuit court sentenced Dowe to a term of incarceration of ten years in prison, with a three-year minimum mandatory sentence. Id. at 94-99.

On direct appeal, Dowe, with the assistance of counsel, filed an initial brief raising the following issues: the circuit court erred when it denied his motion for judgment of acquittal (issue one); and the circuit court erred by not allowing Dowe to use a peremptory strike on Mr. Matricardi (issue two). Resp. Ex. D at 14-24. The State filed an answer brief. Resp. Ex. E. On January 15, 2010, Florida's First District Court of Appeal (First DCA) per curiam affirmed Dowe's conviction and sentence without a written opinion. Resp. Ex. F. The First DCA issued its Mandate on February 2, 2010. Resp. Ex. G.

On January 10, 2011, Dowe, through counsel, filed a Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion), Resp. Ex. H at 1-11, and an Amended Motion for Postconviction Relief (Amended Rule 3.850 Motion) on July 2, 2013, id. at 12-22. Later, on June 18, 2015, Dowe filed a pro se Motion for Leave to Amend, in which he represented that his postconviction counsel had withdrawn and that Dowe wanted to amend his Amended Rule 3.850 Motion to "[reduce] the claims he had raised to just one." Id. at 23. On the same day, Dowe filed another Rule 3.850 Motion (Second Amended Rule 3.850 Motion), which raised the following ground for relief: the circuit court lacked subject matter jurisdiction. Resp. Ex. P. On November

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10, 2015, the circuit court determined Dowe had abandoned his Rule 3.850 Motion and Amended Rule 3.850 Motion and dismissed those motions. Resp. Ex. H at 26-31. In the same order, the circuit court denied Dowe's Second Amended Rule 3.850 Motion on the merits. Id. On February 10, 2016, the First DCA per curiam affirmed the circuit court's denial of Dowe's Second Amended Rule 3.850 Motion, Resp. Ex. T, and issued its Mandate on March 8, 2016. Resp. Ex. S.

On May 7, 2015, Dowe filed a petition for writ of habeas corpus with the First DCA, raising the same argument he made in his Second Amended Rule 3.850 Motion. Resp. Ex. U. The First DCA per curiam dismissed the petition on May 27, 2015, citing to Baker v. State, 878 So. 2d 1236 (Fla. 2004). Resp. Ex. V.

III. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection:

(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

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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.

(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). "[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). When a state postconviction motion is untimely under state law, it is not properly filed for purposes of section 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). The Eleventh Circuit has explained:

In short, when a state court unambiguously rules that a post-conviction petition is untimely under state law, we must respect that ruling and conclude that the petition was not "properly filed" for the purposes of § 2244(d)(2), regardless of whether the state court also reached the merits of one of the claims.

Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311, 1318 (11th Cir. 2006) (emphasis added); see also Ousley v. Sec'y Dep't of Corr., 269 F. App'x 884, 886 (11th Cir. 2008) (noting that "we have only applied [the Sweet] holding in cases where the state court made an 'unambiguous finding' that the petitioner's state post-conviction motion was untimely.").

Respondents contend the instant Petition is untimely because Dowe abandoned his two timely Rule 3.850 Motions in his June 18, 2015 Motion for Leave to Amend, and the circuit court denied as untimely his Second Amended Rule 3.850 Motion. Doc. 10 at 10-11. According to Respondents, Dowe's properly filed Rule 3.850 Motions no longer

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tolled the statute of limitations period as of June 18, 2015, when he abandoned them. Id. Additionally, Respondents assert that the Second Amended Rule 3.850 Motion was not "properly filed" for purposes of section 2244(d)(2) because the circuit ruled it was untimely. Id. Respondents maintain that without the Second Amended Rule 3.850 Motion acting as a tolling motion, the one-year limitations period for Dowe to pursue habeas relief expired prior to the filing of the instant Petition. Id.

In its order denying Dowe's Second Amended Rule 3.850 Motion, the circuit court stated the following:

This Court finds Defendant's Second Amended Motion is procedurally barred as untimely, in that he filed it more than two years after his conviction became final. See Fla. R. Crim. P. 3.850(b) (2015); Huff v. State, 569 So. 2d 1247, 1250 (Fla. 1990). However, Defendant has alleged lack of subject-matter jurisdiction in his Second Amended Motion and in his Motion for Leave to Amend. Therefore, out of an abundance of caution, this Court addresses Defendant's instant Motions. See Edwards v. State, 128 So. 3d 134, 136 (Fla. 1st DCA 2013) (citing Waggy v. State, 935 So. 2d 571, 573 (Fla. 1st DCA 2006)) (stating "[n]ormally, a claim that the trial court lacked subject matter jurisdiction can be raised at any time.").

In view of the foregoing, to the extent it appears Defendant seeks to abandon the two motions counsel previously filed, this Court finds it appropriate to grant Defendant the relief he seeks in his Motion for Leave to Amend. As such, this Court dismisses Defendant's Motion and Amended Motion, and addresses the merits of only Defendant's Second Amended Motion.

Resp. Ex. H at 28 (record citations omitted and emphasis added). The circuit court then went on to deny the claim raised in Dowe's Second Amended Rule 3.850 Motion on the merits. Id. at 28-30.

While the circuit court initially found the motion untimely, it nevertheless determined that it would address the merits because Dowe's allegation that the circuit

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court lacked subject matter jurisdiction constituted an exception to Rule 3.850's two-year time limitation. Id. at 28. As such, the Court concludes the circuit court's untimeliness ruling is ambiguous at best, and, therefore, Dowe's Second Amended Rule 3.850 Motion was properly filed for purposes of section 2244(d)(2). See Sweet, 467 F.3d at 1318; Ousley, 269 F. App'x at 886.

Having found Dowe's Second Amended Rule 3.850 Motion was properly filed, the one-year limitation period was tolled until March 8, 2016, when the First DCA issued its Mandate affirming the circuit court's order. As Dowe filed the instant Petition on February 15, 2016, prior to the First DCA issuing its Mandate, and only 269 days had passed between when Dowe's judgment became final and when he filed his first Rule 3.850 Motion, this action is timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the need for a federal evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). "In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v....

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