Martin v. Sec'y Walter A. Mcneil

• Decision Date: 23 February 2011
• Docket Number: No. 09–14311.,09–14311.
• Citation: 633 F.3d 1257
• Parties: Pablo SAN MARTIN, Petitioner–Appellant,v.Secretary Walter A. McNEIL, Florida Department of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

633 F.3d 1257

22 Fla. L. Weekly Fed. C 1795

Pablo SAN MARTIN, Petitioner–Appellant,

v.Secretary Walter A. McNEIL, Florida Department of Corrections, Respondent–Appellee.

No. 09–14311.

United States Court of Appeals, Eleventh Circuit.

Feb. 23, 2011.

Gustavo J. Garcia–Montes (Court–Appointed), Gustavo J. Garcia–Montes, P.A., Miami, FL, for San Martin.Sandra Sue Jaggard, Miami, FL, for Respondent–Appellee.Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.MARCUS, Circuit Judge:

Petitioner Pablo San Martin, a Florida inmate, appeals a decision of the district court dismissing as time-barred his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. San Martin was sentenced to death in state court following his convictions for one count of first-degree murder, two counts of attempted first-degree murder with a firearm, one count of attempted robbery with a firearm, two counts of grand theft, and one count of unlawful possession of a firearm while engaged in a criminal offense. In this appeal, San Martin argues that because there was a two-week delay in his receipt of actual notice of a United States Supreme Court order triggering the commencement of the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., the district court erred in not applying equitable tolling. We disagree. San Martin's petition was untimely. The district court squarely found neither diligence nor extraordinary circumstances to justify equitable tolling. Because we can discern no error, let alone clear error in these factual determinations, we affirm.

I.

The facts of the crime—an armed robbery that resulted in the murder of Raul Lopez, who had been accompanying friends during their weekly bank trip for their check-cashing business—are detailed at length in an opinion by the Florida Supreme Court, which affirmed San Martin's convictions and death sentence on direct appeal. See San Martin v. State, 705 So.2d 1337 (Fla.1997) (per curiam).¹ While the facts surrounding the murder are not relevant here, the subsequent procedural history of the case is.

Following his direct appeal, San Martin, through counsel, sought certiorari review of the Florida Supreme Court's opinion in the United States Supreme Court. The Supreme Court denied San Martin's petition for writ of certiorari on October 5, 1998, thereby concluding direct review of Petitioner's convictions and sentence. San Martin v. Florida, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998). Post-conviction counsel was appointed for San Martin on February 11, 1999.

On October 4, 1999, 363 days after the judgment became final on direct review, San Martin filed a shell motion for post-conviction relief in state court, which was permissible under Florida law at the time. In the shell motion, Petitioner admitted that he was filing the motion to toll the federal habeas statute of limitations, claimed that his counsel was overworked, listed a series of claim headings, said that his counsel was not prepared to raise the claims, and signed the attached verification.

On April 8, 2000, San Martin filed a proper motion for post-conviction relief, raising thirty claims. Among other things, he argued that: (1) his counsel had been ineffective for preventing him from testifying at the guilt and penalty phases; (2) he presented newly-discovered/ Brady² evidence in the form of an affidavit from co-defendant Abreu recanting trial testimony and indicating that San Martin had not known beforehand of any plans to kill Lopez, and that prosecutors had threatened Abreu with the death penalty if he did not testify that San Martin knew of the plans to kill Lopez; and (3) Abreu's affidavit established that San Martin was innocent of first-degree murder and the death penalty.

The state post-conviction court granted an evidentiary hearing on San Martin's claim that counsel was ineffective because he prevented Petitioner from testifying and on the newly-discovered evidence and Brady claims based on Abreu's affidavit. The court denied most of San Martin's remaining claims summarily. In rejecting the innocence claim, the court held that Abreu's affidavit did not change the fact that San Martin was guilty of felony murder, and therefore of first-degree murder, nor did it show that each of the aggravators the trial court had found in imposing the death penalty were invalid.³

Following the evidentiary hearing, the court denied San Martin's motion in full.⁴ Petitioner appealed the denial of his post-conviction motion to the Florida Supreme Court, raising various arguments—(1) the trial court erred in denying summarily twenty-seven of the claims San Martin had raised in his amended motion for post-conviction and/or collateral relief, without determining the sufficiency of the pleading on its face and without permitting an evidentiary hearing or an opportunity to make a record for review; and (2) the trial court erred in denying San Martin's newly-discovered evidence claim since the court's reading of the penalty phase testimony of co-defendant Abreu was factually wrong. On August 28, 2008, the Florida Supreme Court affirmed the trial court's denial of post-conviction relief. San Martin v. State, 995 So.2d 247 (Fla.2008) (per curiam).⁵ The mandate issued on December 3, 2008.

San Martin filed this federal petition for writ of habeas corpus in the United States District Court for the Southern District of Florida on December 18, 2008. He raised five claims.⁶ The petition made no mention of whether it was filed timely. However, complying with the district court's order for the State to respond, the State argued that the petition should be dismissed because it was time-barred. The State also argued that the claims were unexhausted, procedurally barred, insufficiently pled, and without merit.

In reply, Petitioner never admitted that his petition was untimely, nor did he request equitable tolling. Rather, he recognized that the Supreme Court had denied his certiorari petition on October 5, 1998, but claimed that “this fact was [not] recorded and notified to Petitioner until October 19th, 1998, when it was recorded for record with the clerk of Court's [sic] of the Florida Supreme Court.” He further said that he did not have counsel or “contact with the Court of appeals” until well after that date. San Martin also argued that “the time period at issue is also covered by the tolling of limitations period that affected Florida in due [sic] to hurricane Floyd, which struck on September 14th, 1999, resulting in a two day tolling of limitations.” Finally, he claimed that an affidavit by a co-defendant showed that he had a strong claim of actual innocence.

The district court ordered the parties to address the impact of Hollinger v. Sec'y Dep't of Corr., 334 Fed.Appx. 302 (11th Cir.2009) (per curiam) (unpublished), on the timeliness of the petition, “including whether an evidentiary hearing is required on the question of Petitioner's diligence.” In response, the State argued that Hollinger did not affect the timeliness of the petition, particularly since San Martin had not actually requested equitable tolling or pleaded its requirements in any way.

San Martin insisted that his petition was filed before the statute of limitations expired. He also argued that even if he needed to employ equitable tolling, he was entitled to it because of the alleged late notice of the Supreme Court's order denying certiorari and the “late” appointment of post-conviction counsel. As for diligence, he simply said that “the lower Court's delay in it's [sic] receipt of the Supreme Court's decision, together with the lower Court's delay in appointment of counsel, clearly affected the diligence with which this case was prosecuted.”

On August 13, 2009, the district court denied the habeas petition as time-barred. See Doc. 25.⁷ The court determined that the petition was untimely because under the statute of limitations, the petition was due by December 5, 2008, but was not filed until December 18, 2008. Doc. 25–6–7. The district court noted that San Martin had only mentioned equitable tolling in response to the court's order for supplemental briefing, but decided anyway to construe San Martin's statements concerning when he was notified of the Supreme Court's certiorari ruling, the “late” appointment of post-conviction counsel, and Hurricane Floyd as amounting to a request for equitable tolling. Doc. 25–7.

Addressing first the “delayed” notice of the Supreme Court's certiorari ruling, the district court found that while this kind of delay may have been an adequate ground for equitable tolling in other cases, “those cases have extreme facts and involve petitioners that exhibit much greater diligence than this Petitioner has shown.” Doc. 25–9. Comparing this case with others, the district court found that “the Petitioner showed no diligence in either ascertaining the status of the U.S. Supreme Court's order or attempting to promptly proceed with his motion for post-conviction relief.” Doc. 25–12.

In addition, the district court also found that: (1) “the Petitioner's situation was not ‘extraordinary’ ”; (2) “[t]he Petitioner submitted no evidence supporting his position that the two-week delay in receiving the U.S. Supreme Court's denial of his petition for writ of certiorari ultimately caused the late filing of the Petition”; (3) “the Petitioner does not allege that the clerk of the U.S. Supreme Court failed to send him a copy of the Court's order ... [or that] his lawyer at the U.S. Supreme Court-level did not receive a copy of the order denying the petition for writ of certiorari”; (4) while “the Petitioner argues that he did not know of the U.S. Supreme Court's order until it was docketed with the Florida Supreme Court[,] ... all along the Petitioner knew that he had...