Johnson v. Florida Department of Corrections
| Decision Date | 17 January 2008 |
| Docket Number | No. 07-12115.,No. 07-12155.,07-12115.,07-12155. |
| Citation | 513 F.3d 1328 |
| Parties | Ronnie JOHNSON, Petitioner-Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, James McDonough, Secretary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Sandra Sue Jaggard, Miami, FL, for Respondent-Appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before DUBINA, BARKETT and HULL, Circuit Judges.
Ronnie Johnson, a state prisoner under two death sentences, filed a pair of 28 U.S.C. § 2254 petitions, one attacking his first sentence, the other attacking his second. In separate orders, the district court dismissed each petition as untimely. We consolidated Johnson's appeals. After review and oral argument, we affirm.
On March 11, 1989, Johnson murdered laundromat, owner Tequila Larkins, a hired killing which he committed in return for "about $300 or $400." Nine days later, Johnson murdered grocery store owner and community anti-drug activist Lee Arthur Lawrence, this time for $1,500.1 After his conviction for the Larkins murder in Florida state court, he was sentenced to death. After his jury conviction for the Lawrence murder, he was sentenced to death for that crime. On direct appeal the Florida Supreme Court affirmed. See Johnson v. State (Johnson I), 696 So.2d 317 (Fla.1997) (Lawrence); Johnson v. State (Johnson II), 696 So.2d 326 (Fla. 1997) (Larkins). The United States Supreme Court denied certiorari review. See Johnson v. Florida, 522 U.S. 1095, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998) (mem.); Johnson v. Florida, 522 U.S. 1120, 118 S.Ct. 1062, 140 L.Ed.2d 123 (1998) (mem.).
After his direct appeals terminated in early 1998, Johnson did not collaterally attack his death sentences until early 2001. On March 1, 2001 he filed a motion for post-conviction relief pursuant to Fla. R.Crim. P. 3.850 in Johnson I, and on March 20, 2001 he filed a Rule 3.850 motion in Johnson II. The state trial court denied both Rule 3.850 motions. Johnson appealed and also filed petitions for writs of habeas corpus directly in the Florida Supreme Court. On March 31, 2005, the Florida Supreme Court affirmed the denials of Johnson's Rule 3.850 motions and denied Johnson's habeas petitions. See Johnson v. State, 903 So.2d 888 (Fla.2005) (Johnson I); Johnson v. State, 921 So.2d 490 (Fla.2005) (Johnson II). The Florida Supreme Court issued its mandates on June 13, 2005.
On December 22, 2005, Johnson filed his 28 U.S.C. § 2254 petitions in federal district court. The district court denied each as untimely under 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations. The district court granted Johnson's motions for certificates of appealability. We consolidated Johnson's appeals.
We review de novo a district court's dismissal of a § 2254 petition as untimely. Wade v. Battle, 379 F.3d 1254, 1259 n. 5 (11th Cir.2004). We review its factual determinations for clear error. Le-Croy v. Fla. Dep't of Corr., 421 F.3d 1237, 1259 (11th Cir.2005), cert. denied, 546 U.S. 1219, 126 S.Ct. 1458, 164 L.Ed.2d 140 (2006).
Under 28 U.S.C. § 2244(d)(1), Johnson's § 2254 petitions are subject to a one-year statute of limitations, which begins to run on 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
Under 28 U.S.C. § 2244(d)(2), this limitations period is statutorily tolled during the pendency of a "properly filed application for State post-conviction or other collateral review" with respect to the pertinent judgment.
Johnson's convictions and death sentences became final on January 26, 1998 and February 23, 1998, the dates on which the United States Supreme Court denied his certiorari petitions. Using the "conclusion of direct review" starting date in § 2244(d)(1)(A), Johnson's limitations periods began to run on. January 26, 1998 and February 23, 1998, and expired on January 27, 1999 and February 24, 1999. Johnson did not file his § 2254 petitions until December 22, 2005, and thus, if the § 2244(d)(1)(A) starting date applies, they were untimely filed. Moreover, Johnson's state post-conviction filings in March 2001 did not stop his AEDPA clocks because the one-year time had already expired. See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir.2004) ().
On appeal Johnson raises several arguments discussed below.
Johnson first argues that state action created impediments that prevented him from filing his § 2254 petitions, and thus his AEDPA clocks did not begin to run until the impediments were removed. See 28 U.S.C. § 2244(d)(1)(B); Arthur v. Allen, 452 F.3d 1234, 1249 (11th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2033, 167 L.Ed.2d 763 (2007). Johnson alleges three state-created impediments: (1) the "turmoil" surrounding Florida's implementation of its post-conviction representation system, which delayed the appointment of Johnson's original state post-conviction counsel until August 9, 1998; (2) the ineffective assistance of Johnson's original state post-conviction counsel in not filing Rule 3.850 motions; and (3) the State's objection, on privilege and attorney-work-product grounds, to Johnson's current counsel's request, filed in February 2000, for access to documents needed in preparing Johnson's state post-conviction filings.3
The problem for Johnson is the United States Supreme Court has held that prisoners in capital cases have no constitutional right to post-conviction counsel. See Lawrence v. Florida, ___ U.S. ___, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) ("Lawrence II"), aff'g Lawrence v. Florida, 421 F.3d 1221 (11th Cir.2005) ("Lawrence I"); Murray v. Giarratano, 492 U.S. 1, 10, 12, 109 S.Ct. 2765, 2771-72, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S.Ct. 1990, 1993-94, 95 L.Ed.2d 539 (1987). Thus, a state's delay in appointing such counsel is not a "violation of the Constitution or laws of the United States," as required by § 2244(d)(1)(B). And this Court has already held that "incompetent" performance by appointed counsel "is not the type of State impediment envisioned in § 2244(d)(1)(B)." Lawrence I, 421 F.3d at 1226.4 Later, in Gordon v. Secretary, Department of Corrections, 479 F.3d 1299, 1301 (11th Cir.2007), this Court reaffirmed that "the failure of court-appointed counsel to file more promptly [for state post-conviction relief does not qualify as] an impediment to filing created by State action, within the meaning of § 2244(d)(1)(B)."
Likewise, Johnson has not established that the State's objection to the production of certain documents constituted an illegal impediment to filing his § 2254 petitions. To delay the running of the statute of limitations, § 2244(d)(1)(B) requires state action that both "violat[ed] . . . the Constitution or laws of the United States" and "prevented [the prisoner] from filing" his federal petition. 28 U.S.C. § 2244(d)(1)(B). Johnson has pointed to no federal statute or constitutional provision that the State's objections violated. Johnson also has not demonstrated how the State's action actually prevented him from timely filing his § 2254 petitions.
In any event, the state trial court conducted an in camera review of the documents on April 28, 2000, and immediately made available to Johnson the first three categories of documents he had requested.5 As to the remaining documents, the state court ordered that the NCIC report be produced unless the State objected within five days.6 The state court refused disclosure of the grand jury memorandum or the State's Attorney notes, although the court reviewed the latter for potential Brady7 violations. The state court declined to produce the police reports at that time because the state claimed that a version of them, redacted to remove victim addresses and phone numbers, had already been produced in discovery to Johnson's trial counsel, and Johnson's current counsel had not yet obtained and reviewed the file from Johnson's trial counsel.
In fact, Johnson has never identified to this Court a single document to which he did not ultimately gain access, much less how its lack prevented him from filing either of his § 2254 petitions.8 Johnson's factual allegations fall far short of the standard required to invoke § 2244(d)(1)(B). Therefore, the state impediment provision does not apply, and the one-year statute of limitations began to run on the date Johnson's convictions became final in 1998.
Johnson next argues that the limitations period should be equitably tolled. Equitable tolling may apply "when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Arthur, 452 F.3d at 1252 (quotation marks and citation omitted); Helton v. Sec'y for the Dep't of Corr., 259 F.3d 1310, 1313 (11th Cir.2001); Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.2001).9
Johnson bears the burden of establishing equitable tolling. Outler v. United States, 485 F.3d 1273, 1280 (11th Cir.2007). To discharge his burden, he must demonstrate: "(1) that he...
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