Gill v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 14 October 2022
• Docket Number: 3:18-cv-725-BJD-JBT
• Parties: RICARDO IGNACIO GILL, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

RICARDO IGNACIO GILL, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

No. 3:18-cv-725-BJD-JBT

United States District Court, M.D. Florida, Jacksonville Division

October 14, 2022

ORDER

BRIAN J. DAVIS United States District Judge

I. Status

Petitioner Ricardo Ignacio Gill, a Florida prisoner convicted and sentenced to death, filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Petition) (Doc. 30, 187 pages).^[1] Petitioner contends he is entitled to equitable tolling of the limitation period to file a federal habeas petition and he claims actual innocence.^[2] Id. at 15-24. The operative response is the Second Motion to Dismiss the Federal Habeas Petition as Untimely (Second Response) (Doc. 62).^[3] Respondents submit that the Petition is untimely filed, and Petitioner is not entitled to equitable tolling as he caused his own delay, he was not diligent, he was found to be competent by numerous doctors over the years, including at the time of trial and sentencing and during the state post-conviction proceeding, and there are no extraordinary circumstances. Id. at 12-16. They also contend the actual innocence exception does not apply to Petitioner. Id. at 17-18.

Petitioner filed a Response to Respondents' Second Motion to Dismiss Federal Habeas Petition as Untimely (Petitioner's Response) (Doc. 81).^[4] He seeks equitable tolling and claims it is warranted as he was diligent as could be expected from a person suffering a brain defect and there are extraordinary circumstances (congenital brain defect that renders him incompetent, he was incompetent during post-conviction proceedings, and post-conviction counsel was deficient in this regard). Id. at 6-7. In Respondents' Reply (Doc. 86), they assert Petitioner fails to rebut the presumption of correctness under 28 U.S.C. § 2254(e)(1) and he is not entitled to equitable tolling. Id. at 2. Also, Respondents address Petitioner's substantive claim of incompetency. Id. at 9 19. In Petitioner's Surreply (Doc. 90), he reiterates that the removal of counsel and dismissal of Petitioner's case were extraordinary circumstances that caused the late filing of the Petition. Surreply at 6.

As acknowledged by the parties, the Petition is untimely filed, filed well beyond the Antiterrorism and Effective Death Penalty Act (AEDPA) one-year statute of limitations. Petition at 17-18; Second Response at 2-3.

II. Timeliness

Respondents assert the Petition is untimely. Petitioner concedes that the Petition was filed beyond the AEDPA one-year statute of limitations. Under AEDPA, there is a one-year period of limitation:

(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 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).

Pursuant to AEDPA, effective April 24, 1996, Petitioner had one-year to file a timely federal petition pursuant to 28 U.S.C. § 2254. Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998) (per curiam) (one-year from date of enactment is adopted for convictions that became final prior to the effective date of AEDPA), cert. denied, 531 U.S. 840 (2000); see Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999), cert. denied, 528 U.S. 1058 (2000) (same). Review of the record shows Petitioner failed to comply with the limitation period described above.

After judgment and conviction, Petitioner appealed to the Florida Supreme Court (FSC). Ex. at 964, 966, 2227-2346. On July 9, 2009, the FSC affirmed. Id. at 2348-87. Gill v. State, 14 So.3d 946 (Fla. 2009) (per curiam). The mandate issued on July 30, 2009. Ex. at 2388. The conviction became final on October 7, 2009 (90 days after July 9, 2009) (According to rules of the Supreme Court, a petition for certiorari must be filed within 90 days of the appellate court's entry of judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days of the appellate court's denial of that motion.”).

The limitation period began running and ran for 362 days until Petitioner, through counsel, filed a Rule 3.851 motion on Monday, October 4, 2010. Ex. at 2436-73. Respondents state, “this properly filed motion acted to toll the federal limitations clock.”^[5] Second Response at 2. In an order filed July 18, 2011, the circuit court dismissed the post-conviction proceeding and discharged post-conviction counsel. Ex. at 2640-42; Rec. at 139-41. The FSC affirmed the circuit court's decision finding Petitioner competent to discharge his post-conviction counsel and waive post-conviction proceedings. Gill v. State, 107 So.3d 326, 328 (Fla. 2012); Ex. at 2832-35. The record demonstrates Petitioner filed a pro se motion for extension of time to file a motion for rehearing on October 26, 2012 pursuant to the mailbox rule. Rec. at 23-25. On November 28, 2012, the FSC denied the motion as untimely. Id. at 22. Petitioner followed up with a December 6, 2012 pro se motion for rehearing. Id. at 5-21. On January 14, 2013, the FSC struck the pro se motion for rehearing as unauthorized. Id. at 4.

In his procedural history, Petitioner states the FSC denied rehearing on Thursday, January 23, 2013. Petition at 17-18. The Petition, Second Response, and the record provided to the Court are not a model of clarity on this point. Petitioner states the FSC denied rehearing on January 23, 2013, but he also states the FSC struck Petitioner's pro se rehearing motion. Petition at 17-18; 41. Respondents state the Court struck Petitioner's pro se motion on January 14, 2013, but make no reference to a motion for rehearing denied on January 23, 2013. Second Response at 3; see Rec. at 4-21. The FSC docket for Case Number SC11-1553 does not reference an additional motion for rehearing and a rehearing denied on January 23, 2013. Therefore, the Court assumes this is simply an error which followed from Petitioner considering the published decision.^[6]

The FSC struck Petitioner's pro se motion for rehearing on Monday, January 14, 2013. Respondents submit that the clock began running on Tuesday, January 15, 2013 and expired three days later on Friday, January 18, 2013.^[7] However, with a few days remaining in the one-year period, Petitioner did not file his federal petition until Monday, November 4, 2019, years later. He readily admits his petition is several years late. Petition at 18.

Based on the history outlined above, the Petition filed on November 4, 2019 is untimely and due to be dismissed unless Petitioner can establish equitable tolling of the statute of limitations is warranted. Alternatively, Petitioner claims actual innocence. The Court will briefly address the contention of actual innocence.

Upon review, Petitioner does not demonstrate that he has new evidence establishing actual innocence. He has not pointed to any evidence demonstrating it is more likely than not that no juror, acting reasonably, would have found him guilty beyond a reasonable doubt in light of new evidence. See McQuiggan v. Perkins, 569 U.S. 383, 395 (2013) (restricting the miscarriage of justice exception to a severely confined category of cases in which new evidence shows it is more likely than not that no reasonable juror would have convicted the petitioner).

Petitioner has made no attempt to make a credible showing of actual innocence by offering new evidence that is directly probative of his innocence. Instead, he asserts he has uncovered evidence establishing he is innocent of the capital crime because he was insane at the time the crime was committed. Petition at 21. Petitioner points to his lifelong history of profound mental illness, his significant brain defect, and the overarching claim he was insane at the time the crime was committed.

Although Petitioner claims mental illness, temporal lobe impairment, and insanity at the time the crime was committed, he is required to show factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). See Rozzelle v. Sec'y Fla. Dep't of Corr., 672 F.3d 1000, 1012-13 (11th Cir. 2012) (per curiam) (finding factual innocence is required but recognizing that the circuits differ on whether a complete affirmative defense, such as insanity, shows factual or only legal innocence), cert. denied, 568 U.S. 914 (2012). To the extent this Court broadly construes the Petition as claiming legal innocence, not factual innocence, that will not win the day.

Although the question of whether the establishment of an affirmative defense would qualify under Schlup v. Delo, 513 U.S 298 (1995) has not been resolved in the Eleventh Circuit, dicta in Rozzelle suggests that the Eleventh Circuit would not extend a claim of this nature to satisfy the actual innocence...