Gaither v. Sec'y

• Decision Date: 09 July 2015
• Docket Number: Case No. 8:12-CV-889-T-27TGW
• Parties: KEVIN B. GAITHER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

KEVIN B. GAITHER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:12-CV-889-T-27TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

July 9, 2015

ORDER

Petitioner, an inmate of the Florida penal system, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Petitioner challenges his capital sexual battery conviction entered in 2006 by the Twelfth Judicial Circuit Court, Manatee County, Florida. Respondent filed a response to the petition, in which it incorporates a motion to dismiss the petition as untimely (Dkt. 14). Petitioner filed an amended reply to the response (Dkt. 21). Upon consideration, the petition is DENIED.

DISCUSSION

I. Timeliness

Respondent contends that the petition is time-barred. Petitioner disagrees, arguing that his petition was timely filed. Additionally, Petitioner argues for equitable tolling based on the state post-conviction court's delay in dismissing Petitioner's first post-conviction motion.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one year statute of limitations for seeking federal habeas corpus relief from a state-court judgment. 28 U.S.C. § 2244(d)(1). Lawrence v. Florida, 549 U.S. 327, 331 (2007). The limitation period runs from thelatest of . . . "the date on which the 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). Additionally, "[t]he 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)(2). An 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).

On October 5, 2007, the appellate court affirmed Petitioner's state court conviction (Resp. Ex. 4); Gaither v. State, 966 So. 2d 394 (Fla. 2d DCA 2007) [table]. His conviction therefore became final 90 days later, on January 3, 2008, when the time for filing a petition for writ of certiorari in the Supreme Court of the United States expired. See Sup. Ct. R. 13(3) ("[t]he time to file a petition for . . . writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate . . . ."); Chavers v. Sec'y, Fla. Dep't of Corr., 468 F.3d 1273, 1274-75 (11th Cir. 2006) (stating the 90-day period begins to run from the date of entry of judgment and not the issuance of the mandate). Petitioner therefore had one year from January 3, 2008, in which to file a timely federal habeas petition under 28 U.S.C. § 2254. His federal habeas petition was filed on April 18, 2012,¹ more than four years after his conviction became final. Accordingly, unless the limitation period was tolled by a properly filed state court post-conviction application, Petitioner's federal petition is untimely.

On February 19, 2008, 47 days after his conviction became final, Petitioner filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 (Resp. Ex. 6a), and a memorandum of law in support of the motion (Resp. Ex. 6b).² The Rule 3.850 motion included a sworn oath required by Florida law (Resp. Ex. 6a at p. 9).³ Nevertheless, the facts relied on to support the motion were set forth in the memorandum of law rather than the motion itself (Resp. Exs. 6a, 6b). And the assertions of fact in the attached memorandum of law were not made under oath (Resp. Ex. 6b). Therefore, on February 20, 2009, the state post-conviction court dismissed the motion without prejudice "to a [sic] file facially sufficient motion" within "120 days from the date of this order [.]" (Resp. Ex. 9).⁴

Respondent contends that the Rule 3.850 motion was not "properly filed," and therefore did not toll the AEDPA statute of limitations, because the motion did not comply with Florida's written oath requirement (see Dkt. 14 at pp. 4-6). The Court agrees.

"Under Florida law, a Rule 3.850 motion for post-conviction relief must. . .contain either a notarized or an unnotarized oath." Jones v. Sec'y, Florida Dep't of Corr., 499 Fed. Appx. 945, 950 (11th Cir. 2012) (unpublished) (citing Fla. R. Crim. P. 3.987(1)). See also Fla. R. Crim. P. 3.850(c). "The purpose of the oath is to prevent false factual allegations by subjecting the movant to prosecution for perjury if the factual allegations in the motion prove to be false." Stevens v. State, 947 So. 2d 1227, 1228 (Fla. 2d DCA 2007) (citing Scott v. State, 464 So. 2d 1171 (Fla. 1985)). Under Florida law, a Rule 3.850 motion is not in compliance with the requirement that the motion be under oath where the motion itself includes a sworn oath, but the facts are set forth in a memorandum that does not have a sworn oath. See Clemmons v. State, 959 So. 2d 825, 826 (Fla. 4^th DCA 2007) ("appellant's [Rule 3.850] motion did not comply with the rule requirement that the motion be under oath. . .[where] the motion itself was sworn, [but] the facts were included in amemorandum which was not sworn.") (citation omitted); Gonzalez v. State, 869 So. 2d 775 (Fla. 5th DCA 2004) (sworn Rule 3.850 motion did not contain facts; unsworn memorandum of law attached to motion which stated facts insufficient to cure motion). "[A] Rule 3.850 motion that [does] not contain the written oath required by Florida law [is] not 'properly filed' under § 2244(d)(2) and, thus, [does] not toll AEDPA's one-year limitations period." Jones, 499 Fed. Appx. at 950 (citing Hurley v. Moore, 233 F.3d 1295, 1297-98 (11th Cir. 2000)).

Although Petitioner's February 19, 2008 Rule 3.850 motion included a sworn oath, the facts in support of his claims were set forth in the memorandum, which did not include a sworn oath. The motion therefore did not comply with Rule 3.850's oath requirement. Consequently, the motion was not "properly filed" and therefore did not toll the AEDPA's limitation period.

On October 23, 2009 (245 days after the original Rule 3.850 motion was dismissed), Petitioner filed his "Amendment/Supplement to Pending Motion for Post-Conviction Relief and Motion(s) for Leave to Amend Motion for Postconviction Relief" ("second Rule 3.850 motion") (Resp. Ex. 12). However, because the federal limitation period already expired on January 8, 2009 (one year after Petitioner's conviction became final on January 8, 2008), neither his second Rule 3.850 motion, nor any of his subsequently filed motions, tolled the federal limitation period. See Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) (Rule 3.850 motion, "filed after expiration of the limitations period[,] does not relate back so as to toll idle periods preceding the filing of the federal [habeas] petition"); Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (where a Rule 3.850 motion is filed after the expiration of the federal limitation period, it does not toll the period under § 2244(d)(2) because no period remains to be tolled). Therefore, absent equitable tolling ora showing of actual innocence,⁵ Petitioner's federal habeas petition is time-barred.

Petitioner does not demonstrate that he is actually innocent of the crime for which he was convicted. He does, however, argue that he is entitled to equitable tolling (Dkt. 21 at pp. 4-6).

The limitation period under § 2244(d) is subject to equitable tolling. Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004). Section 2244 "permits equitable tolling 'when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable with diligence.'" Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam)); Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006) (petitioner must show both extraordinary circumstances and diligence). Equitable tolling applies, however, only in truly extraordinary circumstances, Jones v. United States, 304 F. 3d 1035, 1039-1040 (11^th Cir. 2002), and where the litigant satisfies his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance "stood in his way and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010).

Petitioner has not satisfied his burden of showing circumstances justifying equitable tolling. First, Petitioner makes no showing of extraordinary circumstances which prevented him from filing a timely federal habeas petition. Petitioner contends that the state post-conviction court's delay of one year before dismissing Petitioner's original Rule 3.850 motion warrants equitable tolling of the limitations period (Dkt. 21 at pp. 4-5). The delay in dismissing the motion does not itself amount to an extraordinary circumstance, especially where there is no evidence that the delay was a consequence of malfeasance on the part of the State. See Hill v. Jones, 242 Fed. Appx. 633, 637(11th Cir. 2007) (unpublished). Moreover, the delay did not prevent Petitioner from asserting his rights because he could have filed a protective federal habeas petition and requested a stay until his state remedies were exhausted. See Colbert v. Head, 146 Fed. Appx. 340, 344 n.5 (11th Cir. 2005) (unpublished) ("a 'petitioner trying in good faith to exhaust state remedies [who] may litigate in state court for years only to find out at the end that he was never 'properly filed' and thus that his federal habeas petition is time barred,' may avoid this predicament by filing a 'protective' petition in federal court. . .asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.") (quoting Pace v. Diguglielmo, 125 S.Ct. 1807, 1813 (2005)). Therefore, because Petitioner has failed to show that the State preven...