Everett v. Sec'y

Decision Date07 January 2019
Docket NumberCase No: 3:13-cv-916-J-32PDB
CourtU.S. District Court — Middle District of Florida
I. Status

Petitioner Michael Everett, an inmate of the Florida penal system, initiated this action 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). Everett is proceeding on an Amended Petition (Amended Petition; Doc. 30), filed on August 22, 2016. Everett challenges his 2008 state court (Flagler County) judgment of conviction for first degree felony murder and burglary of a dwelling. The circuit court sentenced Everett to incarceration for a term of life as to the felony murder charge and fifteen years in prison as to the burglary of a dwelling charge.

The Amended Petition raises twenty grounds for relief. See Doc. 30 at 11-97. Respondents filed a Response to the Petition, see Response to Petition (Doc. 12; Resp.) with exhibits (Resp. Ex.), and a Response to the Amended Petition,1 see Response toAmended Petition (Doc. 38; Supp. Resp.) with exhibits (Resp. Ex.). Everett filed a Reply to each Response, one through counsel on July 9, 2015 and the other pro se on March 27, 2017. See Reply to Response to Petition for Writ of Habeas Corpus (Doc. 27; Reply); and Reply to Respondent's Response to Amended Petition for Writ of Habeas Corpus (Doc. 41; Supplemental Reply). This case is ripe for review.

II. Relevant Procedural History

On April 17, 2008, a jury found Everett guilty of first degree felony murder (count one) and burglary of a dwelling with a battery while armed with a dangerous weapon (count two). Resp. Ex. B at 597. On the same day, the circuit court sentenced Everett to incarceration for a term of life as to both counts. Resp. Exs. A; B at 604. The Fifth District Court of Appeal (Fifth DCA) per curiam affirmed Everett's convictions and sentences on April 7, 2009, without a written opinion. Resp. Ex. D.

On April 21, 2010, Everett, through counsel, filed a Motion to Temporarily Hold Proceedings in Abeyance Pending Filing of Supplemental/Amended Motion for Postconviction Relief (Motion to Stay). Resp. Ex. F.2 On the same day, Everett also filed a Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure3.850. Doc. 27-1. The circuit court granted the Motion to Stay on May 11, 2010. Resp. Ex. F. On May 31, 2011, Everett filed an Amended Rule 3.850 Motion. Resp. Ex. G. After an evidentiary hearing, the circuit court denied Everett's Amended Rule 3.850 Motion on December 20, 2011. Resp. Exs. H; I. The Fifth DCA affirmed the circuit court's denial of Everett's Amended Rule 3.850 Motion on February 22, 2013, with a written opinion. Resp. Ex. K. The Fifth DCA issued its Mandate on May 16, 2013. Id.

On April 27, 2011, Everett filed a pro se Petition Alleging Ineffective Assistance of Counsel with the Fifth DCA. Resp. Ex. L. On October 28, 2011, the Fifth DCA issued an opinion granting the petition in part, finding Everett was improperly convicted of first degree burglary after being charged only with second degree burglary. Resp. Ex. N. On January 17, 2012, the circuit court resentenced Everett on count two to incarceration for a term of fifteen years. Resp. Ex. O. On or about January 27, 2012, Everett filed a Motion for Rehearing, seeking appointment of counsel and to be present during the resentencing. Doc. 17. On or about February 23, 2012, the circuit court granted the Motion for Rehearing, vacated the fifteen-year sentence it imposed on January 17, 2012, and ordered a resentencing hearing. Id.

Prior to his resentencing hearing and after the Fifth DCA affirmed the circuit court's denial of his Amended Rule 3.850 Motion, Everett filed the instant Petition on July 23, 2013. Doc. 1. Ultimately thereafter, on March 24, 2014, the circuit court resentenced Everett on count two, imposing a fifteen-year sentence. Resp. Ex. O. The Fifth DCA affirmed his resentencing on May 22, 2015, with a written opinion, and issued the Mandate on June 15, 2015. Resp. Ex. V. On June 1, 2015, Everett filed another Motion for Postconviction Relief pursuant to Rule 3.850 (Second Rule 3.850 Motion). Resp. Ex. W. On August 18, 2015, the circuit court denied the Second Rule 3.850 Motion. Resp. Ex. X. However, Everett moved for rehearing, arguing he filed an Amended Motion for Postconviction Relief pursuant to Rule 3.850 (Amended Second Rule 3.850 Motion) on August 14, 2015 that had been lost in the mail. Resp. Ex. Y. After granting the motion for rehearing, the circuit court denied the Amended Second Rule 3.850 Motion. Resp. Ex. Z. The Fifth DCA per curiam affirmed, without a written opinion, the circuit court's denial of Everett's Amended Second Rule 3.850 Motion on March 8, 2016, and issued its Mandate on April 27, 2016. Resp. Ex. BB.

On July 1, 2016, Everett initiated a new federal case by filing a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in Case Number 3:16-CV-877-J-32MCR, which attacked the same convictions as the instant Petition. See Doc. 28. The Court sua sponte ordered Everett to explain how he intended to proceed. Id. Ultimately, Everett decided to close his 2016 case and amend his Petition by filing the instant Amended Petition, which the Court allowed over Respondents' objections. Docs. 29; 30; 32; 33-1; 34; 35.

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 incustody 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 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). For purposes of section 2244(d)(1)(A), the final judgment means both the conviction and sentence. Burton v. Stewart, 549 U.S. 147, 156 (2007). Therefore, if a resentencing occurs, then a new judgment has been entered, which restarts the AEDPA statute of limitations. See Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (holding that "where . . . there is a 'new judgment intervening between the two habeas petitions,' an application challenging the resulting new judgment isnot 'second or successive' at all.") (citations omitted); Insignares v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1281 (11th Cir. 2014) (holding that "when a habeas petition is the first to challenge a new judgment [following a resentencing], it is not 'second or successive,' regardless of whether its claims challenge the sentence or the underlying conviction."); Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286, 1293 (11th Cir. 2007) (holding that habeas petition challenging underlying convictions filed by state prisoner more than five years after he was convicted of crime, but only 57 days after the corrected sentence imposed on resentencing became final, was timely filed).

Respondents argue that both the Petition and Amended Petition are untimely. Doc. 12 at 9-13; Doc. 38 at 8-9. While acknowledging the circuit court resentenced Everett on count two, Respondents contend this would only make claims directed specifically at count two timely. Doc. 12 at 11-12. In support of this argument, Respondents rely on Zack v. Tucker, 704 F.3d 917, 926 (11th Cir. 2013) for the proposition that the one-year limitations period of section 2244(d) applies on a claim-by-claim basis. Id. at 12.

Respondents' reliance on Zack is misplaced. In Zack, the Eleventh Circuit held "that the statute of limitations in AEDPA applies on a claim-by-claim basis in a multiple trigger date case." Id. (emphasis added). However, the instant case is not a multiple trigger date case; instead, it is a single trigger date case based on section 2244(d)(1)(A). Where section 2244(d)(1)(A) is the only applicable trigger date for the statute of limitations, it is applied to a petition as a whole. See Thompson v. Fla. Dep't of Corr., 606 F. App'x 495, 505-06 (11th Cir. 2015) (reversing district court'sdetermination that Thompson's petition was untimely and distinguishing case from Zach because Thompson's case was a single trigger case involving a new judgment entered after a resentencing); see also Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005) (noting that section 2244(d)(1) "provides one means of calculating the limitation with regard to the 'application' as a whole, § 2244(d)(1)(A), but three others that require claim-by-claim consideration.").

Moreover, the Eleventh Circuit has previously explained that:

Florida agrees that—to the extent Rocha challenges his conviction and sentence for Count II—Rocha's section 2254 petition is not second or successive. Florida contends, however, that because Rocha's conviction and sentence for Count I remain undisturbed, Rocha's petition is second or successive to the extent it challenges his Count I conviction or sentence. We disagree.
In Magwood, the Supreme Court

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