Honester v. Sec'y, Fla. Dep't of Corr.
Decision Date | 19 May 2021 |
Docket Number | Case No. 3:18-cv-1449-HES-JRK |
Parties | LAUNDREL LAMAR HONESTER, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents. |
Court | U.S. District Court — Middle District of Florida |
Petitioner Laundrel Lamar Honester, proceeding pro se, initiated this case by filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody (Petition) (Doc. 1). He challenges his state court (Duval County) conviction for robbery. Id. at 1. He raises two grounds in the Petition: (1) ineffective assistance of counsel for failure to investigate Petitioner's medical history and present evidence that Petitioner wore contact lenses, whereas the perpetrator depicted in the video wore glasses, and (2) ineffective assistance of counsel for failure to object to the jurors being permitted to take the state's laptop computer into the deliberation room to view the video because the jurors may have looked at other materials that the jury should not have seen. Id. at 5-7.
Respondents filed a Motion to Dismiss Petition for Writ of Habeas Corpus (Response) (Doc. 7), asserting the federal petition is untimely filed and due to be dismissed.1 Petitioner filed a Notice/Reply (Doc. 10), stating he did not have any new evidence in his case.
Respondents assert the Petition is untimely. Response at 5. Upon review, the Petition was filed beyond the Antiterrorism and Effective Death Penalty Act (AEDPA) one-year statute of limitations.
Under AEDPA, there is a one-year period of limitation:
28 U.S.C. § 2241(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) (, )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 First District Court of Appeal (1st DCA). Ex. A at 80-81, Ex. D, Ex. E. On March 10, 2014,the 1st DCA affirmed per curiam. Ex. F; Honester v. State, 134 So. 3d 953 (Fla. 1st DCA 2014). The mandate issued March 26, 2014. Ex. F.
The conviction became final on Monday, June 9, 2014 (the 90th day after March 10, 2014 fell on Sunday, June 8, 2014, and Petitioner had until Monday, June 9, 2014 to file) (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.").2 The limitation period began running on Tuesday, June 10, 2014, and ran for a period of 365 days, unabated, until the one-year limitation period expired on Wednesday, June 10, 2015.
Petitioner filed a pro se Rule 3.850 motion on June 23, 2015, after the expiration of the one-year limitation period. Ex. I at 1-19. The trial court, in its order filed March 2, 2018, denied the motion. Id. at 20-56. Petitioner appealed. Id. at 57-59. On October 16, 2018, the 1st DCA affirmed, and the mandate issued on November 13, 2018. Ex. J; Honester v. State, 255 So. 3d.269 (Fla. 1st DCA 2018) (per curiam). The Rule 3.850 motion did not serve to toll the limitation period under AEDPA. See Tinker v. Moore, 255 F.3d 1331, 1334-35 (11th Cir. 2001) (, )cert. denied, 534 U.S. 1144 (2002); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (per curiam) () , cert. denied, 531 U.S. 991 (2000).
Petitioner did not file his federal Petition (Doc. 1) until November 30, 2018, pursuant to the mailbox rule, well past the expiration of the one-year limitations period. Based on the history outlined above, the federal Petition filed in 2018 is untimely and due to be dismissed unless Petitioner can establish equitable tolling of the statute of limitations is warranted. Damren v. Fla., 776 F.3d 816, 821 (11th Cir. 2015) (per curiam), cert. denied, 137 S. Ct. 830 (2017). In order to be entitled to equitable tolling a petitioner is required to demonstrate two criteria: (1) the diligent pursuit of his rights and (2) some extraordinary circumstance that stood in his way and that prevented timelyfiling. Agnew v. Fla., No. 16-14451-CIV, 2017 WL 962489, at *5 (S.D. Fla. Feb. 1, 2017), report and recommendation adopted by 2017 WL 962486 (S.D. Fla. Feb. 22, 2017). Equitable tolling is an extraordinary remedy, employed in "rare and exceptional circumstances and typically applied sparingly." Cadet v. Fla. Dep't of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quotations and citation omitted), cert. denied, 138 S. Ct. 1042 (2018).
As such, a petitioner must make a showing of extraordinary circumstances that "are both beyond his control and unavoidable even with diligence," a hurdle not easily surmounted. Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir. 2005) (quotations and citation omitted), cert. denied, 546 U.S. 1108 (2006). The petitioner carries the burden of persuasion, and, in this instance, Petitioner has not met this high hurdle. Indeed, he has not pled "enough facts that, if true, would justify an evidentiary hearing on the issue." Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1209 (11th Cir. 2014) (quoting Hutchinson v. Fla., 677 F.3d 1097. 1099 (11th Cir. 2012)), cert. denied, 571 U.S. 1125 (2015).
Based on the record before the Court, Petitioner has not presented any justifiable reason why the dictates of the one-year limitation period should not be imposed upon him. The only explanation provided by Petitioner is his statement, contained in the Petition, concerning timeliness: "(Don't apply)"and "N/A." Petition at 13. This Court must apply the one-year statute of limitations; AEDPA is clearly applicable to Petitioner's case as his conviction became final after April 24, 1996, the effective date of AEDPA. Smith v. Jones, 256 F.3d 1135, 1143 (11th Cir. 2001) (, )cert. denied, 534 U.S. 1136 (2002). The record demonstrates Petitioner had ample time to exhaust state remedies and prepare and file a federal petition. Petitioner has not shown extraordinary circumstances stood in his way and prevented him from timely filing the Petition. Furthermore, he has not shown he exercised due diligence. Petitioner fails to demonstrate he is entitled to equitable tolling.
Also, Petitioner does not assert or demonstrate that he has new evidence establishing actual innocence. See Reply. Indeed, Petitioner does not point 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) ( ).
Focusing its inquiry on the circumstances surrounding Petitioner s late filing of the Petition, this pro se Petitioner is not excused from complying with the time constraints for filing a federal petition. Petitioner has not presented any justifiable reason why the dictates of the one-year limitation period should not be imposed upon him. He has failed to demonstrate he is entitled to equitable tolling. He does not claim actual innocence and he has made no attempt to make a credible showing of actual innocence by offering new evidence that is directly probative of his innocence. Therefore, the Court will dismiss the Petition and the case with prejudice pursuant to 28 U.S.C. § 2244(d).
1. The Petition for Writ of Habeas Corpus (Doc. 1) and the case are DISMISSED with...
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