Green v. Tucker, Case No. 2:12-cv-17-FtM-99SPC
| Decision Date | 29 January 2013 |
| Docket Number | Case No. 2:12-cv-17-FtM-99SPC |
| Parties | MONTRELL GREEN, Petitioner, v. KENNETH S. TUCKER, Secretary Department of Corrections, FLORIDA ATTORNEY GENERAL, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Montrell Green ("Petitioner" or "Green"), initiated this action by filing a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #1, "Petition") on October 11, 2011.1 Pursuant to the Court's Order to respond and show cause whythe Petition should not be granted (Doc. #9), Respondent filed a Limited Response on March 27, 2012, incorporating a motion to dismiss the Petition on the grounds that the Petition is time barred pursuant to 28 U.S.C. § 2244(d).2 See Respondent's Motionto Dismiss Petition as Time-Barred, Limited Response, Memorandum of Law (Doc. #6, Response) at 1. Respondent submits exhibits (Exhs. 1-22) in support of the Response. See Appendix of Exhibits (Doc. #10) . Petitioner filed a reply to the Response (Doc. #13, Reply). This matter is ripe for review.
Green challenges his 2006 judgment of conviction for robbery, carjacking, kidnapping and armed robbery entered by the Twentieth Circuit Court, Lee County, Florida (case number 04-001062-CF). Green was sentenced to 15 years in prison on the robbery charge, and concurrent sentences of 20 years on each of the carjacking and armed robbery charges, followed by 25 years on the kidnapping charge. Exh. 3 at 4-11. Green's sentences and conviction were per curaim affirmed on direct appeal on April 20, 2007. Exh. 7. Consequently, Green's state conviction became final on Thursday, July 19, 2007. See 28 U.S.C. § 2244 (d)(1)(A) and Rule of the Supreme Court of the United States, Rule 13.3 ().3 This was after the April 24, 1996, effective date of the AEDPA. Thus, Petitioner's one-year time period for filing a federal habeaschallenging his conviction expired on Friday, July 19, 2008.4 Consequently, the Petition filed in this Court would be untimely, unless Petitioner availed himself of one of the statutory provisions which extends or tolls the time period.
Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled during the time that "a properly filed application for state postconviction or other collateral review with respect to the pertinent judgment or claim is pending." Here, 241 days of the federal limitations period elapsed before Petitioner filed his first state post-conviction motion - - a motion pursuant to Florida Rule of Criminal Procedure 3.850 filed on March 16, 2008. Exh. 8. On December 12, 2008, the post-conviction trial court struck the motion. Exh. 12. Petitioner did not appeal or seek reconsideration of the adverse ruling. Consequently, Respondent contends that the order was final on January 13, 2009. Response at 6.
Affording Petitioner the benefit of the 30 days to appeal, another 70 days of untolled time elapsed before Green filed a state petition for writ of habeas corpus alleging ineffective assistance of appellate counsel on March 24, 2009, applying the mailbox rule. Exh. 21. Thereafter, Petitioner filed his second Rule 3.850 motionon April 5, 2009.5 Exh. 13. On June 10, 2009, the state district court denied Petitioner's state petition. Exh. 22. On May 5, 2011, the post-conviction court denied Petitioner's second Rule 3.850 motion. Exh. 17. Green filed a motion for a rehearing on May 31, 2011, which was dismissed by the post-conviction trial court as untimely.6 Exh. 18. On June 27, 2011, Green filed a notice of appeal. Exh. 19. The appellate court dismissed the appeal as untimely.7 Exh. 20.
Petitioner garners tolling from the date he filed his habeas (March 27, 2009) until thirty days after the date the post-conviction denied his second Rule 3.850 motion (June 6, 2011).8 Green does not garner any tolling from the filing of his motion forrehearing or his notice of appeal. Evans v. Chavis, 546 U.S. 189, 191 (2006) .
Petitioner, however, contends that he should be afforded tolling from March 16, 2008, the date he filed his first Rule 3.850 motion, until May 5, 2011, when the post-conviction court denied his second Rule 3.850 motion. Reply at 3. In support, Petitioner argues that the post-conviction court's December 12, 2008 order was not a final order and was not appealable. Reply at 3. In essence, Petitioner is seeking tolling between the date he filed his first Rule 3.850 (March 16, 2008) and the date he filed his second Rule 3.850 motion (April 5, 2009).9
The test of finality, as articulated by Florida case law, is "whether the order in question constitutes the end of the judicial labor in the case, and nothing further remains to be done by the court to fully effectuate a termination of the cause as between the parties directly affected." S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974). Here, the post-conviction court struck Petitioner's original and two amended Rule 3.850 motions onDecember 11, 2008, finding the original Rule 3.850 motion "for the most part, legally insufficient." Exh. 12 at 2, ¶4. The post-conviction court did not specifically direct Green to file an amended motion or set a specific time-frame in which he was required to file a legally sufficient motion. Id. at 2. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007)( that court should strike insufficient motion with leave to amend within "reasonable period" and opining that reasonable time period is "normally . . . between ten and thirty days" and stating "[w]e do not envision that window of opportunity would exceed thirty days and may be less."). Instead, the state court ordered that Green "may file one, and only one, legally and facially sufficient 3.850 motion, which includes all of Defendant's allegation and is within the rule's two-year time limitation." Id. (emphasis added). Petitioner was not specifically ordered to amend and was not provided a definitive time period in which he was required to amend. Consequently, under Florida law, it is unclear whether the post-conviction court's December 11, 2008 order was an appealable order. See Howard v. State, 976 So.2d 635, 636 (Fla. 5th DCA 2008); Smith v. State, 100 So. 3d 201, 202 (Fla. 2d DCA 2012).
Irrespective of whether the December 12, 2008 order was a final order and subject to appeal is not relevant to whether Petitioner had a post-conviction motion pending for AEDPA purposes. More specifically, Petitioner is only entitled to tolling when "aproperly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. . . ." 28 U.S.C. § 2244(d)(2) (emphasis added). When Petitioner filed his first Rule 3.850 motion on March 16, 2008 the motion was "properly filed" and "pending" for AEDPA purposes. However, when the post-conviction court struck the motion on December 11, 2008, the first Rule 3.850 motion was no longer pending. Smith v. Buss, 2011 WL 818157 * 6 (N.D. Fla. 2011) (); Fisher v. Tucker, 2012 WL 1903047 *3 (N.D. Fla. 2012) ()(citing Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003)( "The statutory tolling provision does not encompass a period of time in which a state prisoner does not have a ^properly filed' post-conviction application actually pending in state court.")). See also Carev v. Saffold, 536 U.S. 214, 219-20 (2002)( post-conviction motion is only pending "as long as the ordinary state collateral review process is 'in continuance' i.e., 'until the completion of that process."). Thus, Petitioner is not entitled to equitable tolling for the period of time between the filing of his first Rule 3.850 motion and the filing of his second Rule 3.850 motion.
Consequently, June 6, 2011 (thirty days from the date the post-conviction court denied the second Rule 3.850 motion) is the operative date for purposes of restarting the AEDPA clock. Petitioner permitted an additional 127 days of untolled time to elapse before he filed the instant Petition on October 10, 2011. Thus, affording Petitioner the tolling to which he is entitled for his properly filed post-conviction motions, the Petition was filed 438 days (241+70+127) after his conviction became final. Even if the Court afforded Petitioner the benefit of tolling from March 16, 2008 (the date of his first Rule 3.850 motion) to June 6, 2011 (30 days after the denial of his second Rule 3.850 motion) the Petition was still filed 368 days (241+127) after his conviction became final. Thus, under either scenario, the one year time period had elapsed. Thus, the Petition is time-barred.
The Supreme Court recognizes that AEDPA's statutory limitations period set forth in "§ 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, ____ U.S. ____, 130 S. Ct. 2549, 2560 (2010). However, a petitioner is entitled to equitable tolling only if he can demonstrate that: (1) he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Id. at 2562 (internal quotations and citations omitted). "The diligence required for equitable tolling purposes is 'reasonable diligence,' not maximum feasible diligence." Id. at 2565. Further, to demonstrate the"extraordinary circumstance" prong, a petitioner "must show a causal connection between the alleged extraordinary circumstances and the...
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