Lindsay v. Sec'y
| Decision Date | 13 August 2015 |
| Docket Number | Case No: 2:14-cv-285-FtM-38MRM |
| Parties | DAVID J. LINDSAY, Petitioner, v. SECRETARY, DOC and FLORIDA ATTORNEY GENERAL, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court upon an amended petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by David J. Lindsay ("Petitioner") who is presently confined at the South Florida Reception Center in Doral, Florida (Doc. 1, filed May 22, 2014). Petitioner, proceeding pro se, attacks the convictions and sentences entered by the Twentieth Judicial Circuit Court in Collier County, Florida for burglary with an assaultor battery and violation of a domestic violence injunction. Id. Respondents filed a response to the petition, and Petitioner filed a reply to the response (Doc. 8; Doc. 15).
Petitioner raises nine claims in his petition (Doc. 1 at 6-38). The Court cannot reach the merits of these claims because, as explained below, the pleadings, exhibits, and attachments before the Court establish that the petition should be dismissed as untimely.
On September 18, 2007, Petitioner pleaded no contest to a felony charge of burglary with an assault or battery and a misdemeanor charge of violation of a domestic violence injunction (Ex. 1).3 He was sentenced to nineteen years in prison on the burglary charge and to one year in the county jail on the injunction violation (Ex. 2). On July 8, 2009, Florida's Second District Court of Appeal per curiam affirmed the convictions and sentences (Ex. 3).
On January 28, 2010, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion") (Ex. 4). The motion was denied by the circuit court on April 4, 2011 (Ex. 5). On April 15, 2011, Petitioner filed a motion to disqualify the judge (Ex. 6). The motion was denied on April 27, 2011 (Ex. 7). On April 28, 2011, Petitioner sought rehearing of the order denying his Rule 3.850 motion (Ex. 8). On May 9, 2011 Petitioner filed a motion for rehearing of his motion to disqualify the judge, and an addendum to his motion for rehearing of the orderdenying his motion for post-conviction relief (Ex. 9; Ex. 10). The motions were denied on May 11, 2011 (Ex. 11).
On July 7, 2011, Petitioner filed a second Rule 3.850 motion (Ex. 12). The motion was dismissed as successive on August 19, 2011 (Ex. 13). On August 29, 2011, Petitioner filed a motion for rehearing of the order dismissing his second Rule 3.850 motion (Ex. 14). Petitioner also requested a ruling on his first motion for rehearing which had already been denied on May 11, 2011. Id. The circuit court denied rehearing or reconsideration of the second motion for post-conviction relief (Ex. 15).
On October 3, 2011, Petitioner filed a petition alleging ineffective assistance of appellate counsel (Ex. 33). On November 15, 2011, the petition was dismissed as untimely filed (Ex. 34).
On October 13, 2011, Petitioner filed a second motion to hear and rule on his May 5, 2011 motion for rehearing (Ex. 16). The motion was denied on October 25, 2011 (Ex. 17). On August 17, 2012, Florida's Second District Court of Appeal per curiam affirmed the denial of Petitioner's first and second Rule 3.850 motions and Petitioner's motions for rehearing (Ex. 23). Mandate issues on October 17, 2012 (Ex. 23).
On March 11, 2013, Petitioner filed a third Rule 3.850 motion for post-conviction relief (Ex. 24 at 17). The motion was dismissed as untimely and successive on April 1, 2013 (Ex. 25). On March 12, 2014, Florida's Second District Court of Appeal per curiam affirmed (Ex. 28). Mandate issued on May 22, 2014 (Ex. 32).
The instant petition was filed, pursuant to the mailbox rule, on May 14, 2014.4
Pursuant to the requirements set forth in 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to the filing of a habeas petition by a person in custody pursuant to a state court judgment. This limitation period runs from the latest of:
28 U.S.C. § 2244(d)(1). Here, Petitioner does not allege, nor does it appear from the pleadings or record, that the statutory triggers set forth in §§ 2244(d)(1)(B)-(D) apply. Therefore, the statute of limitations is measured from the remaining statutory trigger, which is the date on which Petitioner's conviction became final. 28 U.S.C. § 2244(d)(1)(A).
Florida's Second District Court of Appeal affirmed Petitioner's convictions and sentences on July 8, 2009 (Ex. 3); Lindsay v. State, 16 So. 3d 138 (Fla. 2d DCA 2009), Petitioner's judgment became final ninety days later - when the time to seek review in the United States Supreme Court expired. See Nix v. Sec'y for the Dep't of Corr, 393 F.3d 1235, 1236-37 (11th Cir. 2004); Bell v. Maryland, 378 U.S. 226, 232 (1964) (). Accordingly, Petitioner's judgment became final on October 6, 2009. Petitioner then had through October 6, 2010 to file his federal habeas petition. Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) () (citing Ferreira v. Sec'y, Dep't of Corr, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)).
Petitioner's federal habeas petition was signed on May 14, 2014. Therefore, it was filed 1316 days late unless tolling principles apply to render it timely.
"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)(2).
Petitioner filed his Rule 3.850 motion on January 28, 2010 (Ex. 5). At that point, 114 days of his AEDPA limitations period had lapsed, and Petitioner had 251 remaining days in which to file a federal habeas petition. The appellate court entered its mandate affirming the denial of Petitioner's first and second Rule 3.850 motions on October 17,2012 (Ex. 23), giving Petitioner through June 25, 2013 to timely file a federal habeas petition.
Petitioner filed a third Rule 3.850 motion on March 11, 2013 (Ex. 24 at 17). This motion was dismissed by the state court as untimely and successive on April 1, 2013 (Ex. 25). In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the United States Supreme Court recognized that a state's filing deadline is a filing condition. The Court explained:
[W]e are guided by the 'common usage' and 'common understanding' of the phrase 'properly filed.' In common understanding, a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more "properly filed" than a petition filed after a time limit that permits no exception. The purpose of AEDPA's statute of limitations confirms this commonsense reading. On petitioner's theory, a state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction petitions. This would turn § 2244(d)(2) into a de facto extension mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay.
Pace, 544 U.S. at 412 (citing Artuz v. Bennett, 531 U.S. 4, 11 (2000)). Under this reasoning, Petitioner's third Rule 3.850 motion did not operate to statutorily toll the AEDPA statute of limitation because it was not properly filed. See Sweet v. Sec'y, Dept. of Corr., 467 F.3d 1311 (11th Cir. 2006). Petitioner filed his first federal habeas petition on May 14, 2014, 574 days after the ruling on his first two Rule 3.850 motions became final. (Doc. 1). Therefore, Petitioner's federal habeas petition was filed 223 days late, and he is not entitled to statutory tolling.
Petitioner argues in his reply that on February 11, 2013, he filed a petition for a writ of mandamus in Florida's Second District Court of Appeal to compel the post-conviction court to vacate its orders denying his Rule 3.850 motions and to rule in his favor (Doc. 15 at 2). Presumably, Petitioner believes that this writ operated to toll the AEDPA statuteof limitation. Florida law is clear that mandamus relief is not available to remedy alleged errors in a criminal case where, as here, the avenues of direct appeal and motions for post-conviction relief provide an adequate remedy. See Hastings v. Krischer, 840 So. 2d 267, 271 (Fla. 4th DCA 2003). Under this reasoning, the mandamus petition was not properly filed under Florida law. However, the Court recognizes that whether an application is "properly filed" under the AEDPA is distinct from whether an application's claims are meritorious or procedurally barred. Artuz, 531 U.S. at 9; see also Harris v...
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