Marshall v. Sec'y, Dep't of Corr., CASE NO. 8:10-cv-2366-T-23MAP

• Decision Date: 30 May 2013
• Docket Number: CASE NO. 8:10-cv-2366-T-23MAP
• Parties: JOHNNY MARSHALL, Petitioner, v. SECRETARY, Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

JOHNNY MARSHALL, Petitioner,
v.
SECRETARY, Department of Corrections, Respondent.

CASE NO. 8:10-cv-2366-T-23MAP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

ORDERED: May 30, 2013

ORDER

Marshall petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his conviction for armed robbery, for which conviction Marshall serves life imprisonment as a prison releasee re-offender. Although the initial response (Doc. 14) admits the petition's timeliness, the respondent argues in the amended response (Doc. 15) that the petition is time-barred.¹ The amended response also addresses the merits of the sole ground for relief. Numerous exhibits ("Respondent's Exhibit ___") support the amended response. Marshall disputes (Doc. 25) the respondent's timeliness argument.

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STATUTE OF LIMITATIONS

The Anti-Terrorism and Effective Death Penalty Act creates a limitation for a Section 2254 petition for the writ of habeas corpus. "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 . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, "[t]he 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).

Marshall's limitation commenced in 2000 upon the expiration of the time for filing a petition for the writ of certiorari. The parties agree that the limitation was tolled for Marshall's state Rule 3.800 motion to correct the sentence, his state petition for the writ of habeas corpus in which he alleged the ineffective assistance of appellate counsel, and his state Rule 3.850 motion for post-conviction relief in which he alleged the ineffective assistance of trial counsel. Marshall moved to recall the mandate on the denial of the latter motion and, when that was unsuccessful, he filed a second Rule 3.800 motion to correct the sentence. Marshall claims entitlement to tolling for both his motion to recall the mandate on the denial of his Rule 3.850 motion for post-conviction relief and his second Rule 3.800 motion to correct the sentence. The

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respondent contends that the limitation expired before Marshall filed his second Rule 3.800 motion to correct the sentence because he is not entitled to tolling for the motion to recall the mandate. The federal petition is timely if Marshall is entitled to tolling during the pendency of both the motion to recall the mandate and the second Rule 3.800 motion.

Section 2244(d)(2) affords tolling for "[t]he 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 . . . ." Moore v. Crosby, 321 F.3d 1277, 1381 (11th Cir. 2003), explains that "[t]he 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. A state application filed after expiration of the limitations period does not relate back so as to toll idle periods preceding the filing of the federal petition." The linchpin in this case is whether a motion to recall the mandate qualifies as an "application for State post-conviction or other collateral review" and whether Marshall's motion to recall the mandate was "properly filed."

Although the Eleventh Circuit Court of Appeals apparently has not resolved whether a motion to recall the mandate tolls the applicable limitation, Bishop v. Dormire, 526 F.3d 382, 383-84 (8th Cir. 2008), explains:

First, the district court did not toll the statute of limitations for the period during which Bishop's motion to recall the mandate was pending. We concluded in Marx v. Gammon that Marx's motion to

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recall the mandate filed in the Missouri Court of Appeals was "properly filed" in the context of AEDPA's tolling provision. 234 F.3d 356, 357 (8th Cir. 2000). Although Marx only explicitly addressed whether the motion was "properly filed," its holding that Marx's habeas petition was timely necessarily included the holding that a properly filed motion to recall the mandate tolls the AEDPA statute of limitations. Therefore, Marx also stands for the proposition that a properly filed motion to recall the mandate tolls the AEDPA statute of limitations.
Because Bishop's motion to recall the mandate was not necessary to exhaust any federally cognizable claims, the State contends that Marx is distinguishable and that the period when the motion was pending should not be tolled. Bishop's motion to recall the mandate presented claims solely concerning the effectiveness of his post-conviction appellate counsel, which are not cognizable claims in federal habeas proceedings. See Clay v. Bowersox, 367 F.3d 993, 1005 (8th Cir. 2004) ("There is no federal constitutional right to the effective assistance of post-conviction counsel."). The plain language of § 2244(d)(2), however, only requires that an application for state post-conviction or other collateral review be "properly filed" and be "with respect to the pertinent judgment or claim" in order for the time during which it is pending to be tolled. The State concedes that Bishop's motion to recall the mandate was "properly filed," as in Marx.
Despite the fact that his motion to recall the mandate raised an issue that is not cognizable in a federal habeas petition, Bishop's motion was filed "with respect to" his state habeas petition inasmuch as he sought to have the appeal reopened based on his post-conviction appellate counsel's failure to raise certain issues on appeal, all of which attacked the validity of his state conviction. To toll the statute of limitations, the pending state post-conviction or other collateral review need not raise a federally cognizable claim. See Cowherd v. Million, 380 F.3d 909, 912-13 (6th Cir. 2004) (en banc) (concluding that a state post-conviction petition need not raise a federal constitutional issue in order to toll the statute of limitations); Ford v. Moore, 296 F.3d 1035, 1040 (11th Cir. 2002) (per curiam) ("[T]he federal habeas statutory limitations period is tolled regardless of whether a properly filed state post-conviction petition or other collateral review raises a federally cognizable claim."); Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002) ("Whether the federal habeas petition contains one or more of the claims raised in the state proceeding does not matter as long as the state proceeding and the federal habeas petition attack the same judgment."); Carter v. Litscher, 275 F.3d 663, 665 (7th Cir. 2001) (holding that issues presented to state court may differ from those presented to federal court but still toll the

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statute of limitations). Because the state post-conviction or other collateral review need not even include a federally cognizable claim to toll the statute of limitations, it certainly need not be necessary to exhaust a federal claim. Therefore, Marx is not distinguishable, and the statute of limitations period should have been tolled during the pendency of Bishop's motion to recall the mandate.

See also Storey v. Roper, 603 F.3d 507, 513-14 (8th Cir. 2010), cert. denied, 131 S. Ct. 1574 (2011) (citing Bishop for the proposition that "a Missouri motion to recall the mandate is 'other collateral review' within the meaning of § 2244").

Analogous controlling precedent in this circuit addresses tolling for an application to file a belated appeal. A belated appeal tolls the federal one-year limitation but only under certain circumstances. The time that elapses before filing a petition for belated appeal is not tolled because nothing is "pending." McMillan v. Sec'y, Dept. Of Corr., 257 Fed. App'x 249, 252-53 (11th Cir. 2007) ("[W]e reject the argument that a state post-conviction motion remains "pending" after the standard time to file an appeal expires merely because a state provides a procedure for seeking an out-of-time appeal in special circumstances or because a state court ultimately grants a petition for an out-of-time appeal."). No tolling is permitted if the application for a belated appeal is filed after expiration of the federal one-year limitation, even if the state court grants the belated appeal, because elapsed time is not reinstated. Moore v. Crosby, 321 F.3d 1277, 1381 (11th Cir. 2003) ("While a 'properly filed' application for post-conviction relief tolls the statute of limitations, it does not reset or restart the statute of limitations once the limitations period has expired. In

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other words, the tolling provision does not operate to revive the one-year limitations period if such period has expired.").

Tolling is permitted if (1) the application for a belated appeal was filed before expiration of the federal limitation and (2) the application was treated by the state courts as a continuation of the motion for post-conviction relief. Williams v. Crist, 230 Fed. App'x 861 (11th Cir. 2006). The state court record shows that Marshall's motion to recall the mandate meets both...