Kornagay v. Sec'y, Case No. 3:08-cv-60-TJC-JBT

• Decision Date: 30 July 2014
• Docket Number: Case No. 3:08-cv-60-TJC-JBT
• Parties: ROBERT D. KORNAGAY, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et. al., Respondent.
• Court: U.S. District Court — Middle District of Florida

ROBERT D. KORNAGAY, Petitioner, v. SECRETARY, FLORIDA DEPARTMENTOF CORRECTIONS, et. al., Respondent.

Case No. 3:08-cv-60-TJC-JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

July 30, 2014

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case by filing a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner subsequently filed an Amended Petition and Respondents filed Motion to Dismiss the Amended Petition as Untimely. (Docs. 13, 21). Petitioner filed a Reply to the Motion and argued that he was entitled to equitable tolling and raised actual innocence arguments. (Doc. 22).

Respondents filed a Response to the Reply and stated that they accepted Petitioner's explanation and did not oppose Petitioner's claim of entitlement to equitable tolling with respect to 266 days. (Doc. 26). In light of Respondents' concession, the Court found that the Motion to Dismiss the Amended Petition was moot. (Doc. 38). The Court also granted Petitioner's Motion for Leave to File a Second Amended Petition. Id. Petitioner filed the Second Amended Petition (Doc. 39), Respondents filed a Response (Doc. 41), and Petitioner filed a Reply to the Response. (Doc. 43). By Order dated April 25, 2014, the Court directed Respondents to filea Supplemental Response. (Doc. 47). Respondents have complied with the Order and the Supplement is before the Court. (Doc. 48). Thus, the Second Amended Petition is ripe for review.

II. Background and Procedural History

In 2002, Petitioner was charged with robbery with a deadly weapon and sexual battery with a weapon. (Doc. 8, Ex. B). Petitioner was tried before a jury and was found guilty on all charges. The Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida sentenced Petitioner to consecutive terms of life imprisonment. (Doc. 8, Ex. B). Petitioner filed a motion to correct a sentencing error in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). (Doc. 29, Ex. P). On June 19, 2003, Petitioner's motion was granted and his sentences were ordered to run concurrently. Id. Petitioner, through counsel, then filed his initial brief pursuant to Anders v. California, 386 U.S. 738 (1967).¹

On March 12, 2004, the First DCA per curiam affirmed Petitioner's judgment and sentence. Kornagay v. State, 869 So.2d 545 (Fla. 1st DCA 2004). On July 22, 2004, Petitioner filed a post-conviction motion pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. (Doc. 8, Ex. D). The motion was dismissed without prejudice after the state court granted Petitioner's motion for voluntary dismissal. (Doc. 8, Ex. E). Through counsel, Petitioner filed another 3.850 motion and an amended motion. (Doc. 8, Exs. F, G). The statecourt summarily denied the amended motion without conducting an evidentiary hearing. (Doc. 8, Ex. H). Petitioner appealed the denial which was dismissed for Petitioner's failure to comply with prior orders. (Doc. 8, Exs. I, J). On May 13, 2007, Petitioner filed a motion to reinstate his post-conviction appeal. (Doc. 8, Ex. K). The court of appeal subsequently granted Petitioner's motion to reinstate the appeal on June 6, 2007. (Doc. 8, Ex. L). The First DCA per curiam affirmed the summary denial of post-conviction relief. (Doc. 8, Ex. M). Mandate issued on November 7, 2007. Id.

Petitioner filed his original federal habeas Petition in this Court on January 14, 2008 under the mailbox rule.² (Doc. 1). During the pendency of his federal case, Petitioner filed another 3.850 motion on February 22, 2008. (Doc. 43, Ex. AA).³ On July 20, 2008, Petitioner filed a motion to dismiss the post-conviction motion. (Doc. 48, Ex. II). The state court granted the motion on September 16, 2008. (Doc. 48, Ex. JJ).

Petitioner filed his Amended Petition with this Court on June 2, 2008. (Doc. 13). On March 5, 2009, Petitioner filed another 3.850 motion in state court. (Doc. 29, Ex. EE). The motion was denied on May 21, 2010 and Petitioner appealed the denial. (Doc. 29, Ex. FF, GG). The First DCA affirmed the denial and mandate was issued on October 26, 2010. (Doc.29, Ex. GG). With leave of this Court, on December 20, 2010, Petitioner filed his Second Amended Petition.⁴ (Doc. 39).

III. Evidentiary Hearing

"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465 (2007). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004), an evidentiary hearing will not be conducted.

IV. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (hereinafter AEDPA), this Court's review "is 'greatly circumscribed and highly deferential to the state courts." Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002)."

Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, ⁵ a federal court may not grant habeas relief unless the state court'sdecision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," Id. § 2254(d)(2). A state court's factual findings are presumed correct unless rebutted by clear and convincing evidence.⁶Id. § 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).

AEDPA "imposes a highly deferential standard for evaluating state court rulings" and "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fair minded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, ___ U.S. ____, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer, 538 U.S. at 75 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013).

V. Timeliness: One-Year Limitation

On April 24, 1996, the President signed into law AEDPA. This law amended 28 U.S.C. § 2244 by adding the following new subsection:

(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).

With regard to the initial Response to the Second Amended Petition, Respondents contended that the Second Amended Petition was untimely and was time-barred unless each ground for relief related back to a ground presented in the timely filed original Petition. (Doc. 41). Within the analysis, Respondents asserted that the First Amended Petition was untimely filed. Id. By Order dated April 25, 2014, the Court directed Respondents to file a Supplementto the Response to address the Court's determination that there was a mathematical error in Respondents' calculation regarding the filing of the First Amended Petition. (Doc. 47).

Respondents have filed the Supplement and acknowledge that their calculation was incorrect and have provided an updated analysis. (Doc. 48). While Respondents concede that the First Amended Petition was timely filed, they still contend that the Second Amended Petition is untimely unless the claims relate back to the timely filed petitions. The time-line is as follows. Petitioner's conviction and sentence became final on June 10, 2004,⁷ 90 days after the First DCA affirmed per curiam. The...