Tatum v. Sec'y, Case No. 8:10-cv-904-T-33TGW
| Decision Date | 15 February 2011 |
| Docket Number | Case No. 8:10-cv-904-T-33TGW |
| Parties | JEROME TATUM, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Jerome Tatum's untimely-filed pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges his conviction and sentence entered by the Twelfth Judicial Circuit, Sarasota County, Florida. A review of the record demonstrates that, for the following reasons, the petition must be denied.
A jury found Tatum guilty as charged of robbery with a deadly weapon in case no. 022056 CF. On December 3, 2002, he was sentenced to ten years incarceration, to be followed by five years probation. Tatum appealed. Appellate counsel filed an Anders brief concluding there was no meritorious basis for a claim of significant reversible error. Following submission of Tatum's pro se brief, the state district court of appeal per curiam affirmed the conviction and sentence on November 21, 2003 in case no. 2D03-228. Tatum v. State, 869 So.2d 557 (Fla. 2d DCA 2003)[table]. Tatum filed an untimely motion for rehearing, which was denied. He did not pursue certiorari review in the United States Supreme Court.
On January 27, 2004, Tatum filed a pro se petition pursuant to Rule 9.141(c), Florida Rules of Appellate Procedure alleging that his appellate counsel had rendered ineffectiveassistance. (Resp. Ex. 9). On October 6, 2004, the state district court of appeal denied the petition in case no. 2D04-451. Tatum v. State, 888 So. 2d 640 (Fla. 2d DCA 2004)[table].
Tatum then filed a pro se Rule 3.850 motion for postconviction relief dated November 20, 2004. (Resp. Ex. 19). The trial court summarily denied five grounds and a sixth ground was denied after an evidentiary hearing. Tatum appealed, and on March 3, 2006, the state district court of appeal per curiam affirmed the denial of postconviction relief in case no. 2D05-4081. Tatum v. State, 923 So. 2d 1175 (Fla. 2d DCA 2006)[table]. Following denial of rehearing, the mandate issued March 24, 2006. (Resp. Ex. 27)
Tatum improperly petitioned for further review in the Florida Supreme Court in case no. SC06-918. The Florida Supreme Court lacked jurisdiction to review the petition, and that Court dismissed Tatum's petition. Tatum v. State, 931 So. 2d 901 (Fla. 2006)[table].
Tatum filed another pro se Rule 3.850 motion dated June 5, 2006. The Rule 3.850 motion was dismissed as successive and abusive. Following dismissal of his motion for rehearing, Tatum appealed, and on November 8, 2006, the state district court of appeal per curiam affirmed the trial court's decision in case no. 2D06-3189. Tatum v. State, 944 So. 2d 994 (Fla. 2d DCA 2006)[table]. Following denial of rehearing, the mandate issued January 8, 2007.
Tatum filed a pro se motion to correct sentence dated September 6, 2006, pursuant to Fla.R.Crim.P. 3.800(a). Following denial of the motion to correct sentence, Tatum appealed, and on January 17, 2007, the state district court of appeal per curiam affirmed the denial of relief in case no. 2D06-4670. The mandate issued February 7, 2007.
Tatum filed a pro se "application" dated October 13, 2006, which was treated as a petition for writ of habeas corpus in case no. SC06-2066. After securing a response from the State and Tatum's reply, the Florida Supreme Court, on February 26, 2007, denied the petition stating:
The petition for writ of habeas corpus is hereby denied as procedurally barred. A petition for extraordinary relief is not a second appeal and cannot be used to litigate or relitigate issues which were or could have been raised on direct appeal or in prior postconviction proceedings. See Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992); Mills v. Dugger, 574 So. 2d 63, 54 (Fla. 1990).
Tatum v. McDonough, 957 So.2d 636 (Fla. 2007)[table]. Rehearing was denied May 3, 2007.1By then, Tatum had filed a pro se motion to correct illegal scoresheet error dated March 26, 2007, which was denied on April 3, 2007. The state district court of appeal affirmed the denial of relief. Tatum v. State, 963 So. 2d 239 (Fla. 2d DCA 2007)[table]. Following denial of rehearing, the mandate issued September 14, 2007. (Resp. Ex. 71).
Tatum also filed a pro se motion for reduction of sentence dated September 21, 2007. That application was denied October 4, 2007.
On October 17, 2007, Tatum filed a pro se document entitled "certified questions of law" in case no. SC07-1994. The Florida Supreme Court treated the filing as a habeas corpus petition and dismissed the petition as unauthorized. Tatum v. McDonough, 973 So. 2d 1124 (Fla. 2007)[table].
Tatum filed another pro se Rule 3.800(a) motion dated February 14, 2008, which was denied on February 26, 2008. Tatum appealed, and the state district court of appeal per curiam affirmed the denial of relief. Tatum v. State, 987 So. 2d 1221 (Fla. 2d DCA 2008)[table]. The mandate issued August 18, 2008 in case no. 2D08-1400.
On August 25, 2008, Tatum filed a pro se motion for postconviction relief to vacate a void judgment. On September 9, 2009, the state trial court dismissed the motion as untimely. The state court noted that claims raised in the motion were similar to, if not the same as, claims previously raised. Tatum appealed, and on February 3, 2010, the state district court of appeal per curiam affirmed the trial court's decision in case no. 2D08-5223. Following denial of rehearing, the mandate issued March 23, 2010. By then, Tatum's improper application for Supreme Court review had been dismissed for lack of jurisdiction in case no. SC10-470. Tatum v. State, 32 So. 3d 622 (Fla. 2010)[table].
Previously, Tatum had filed a pro se petition for writ of mandamus dated December 30, 2009, seeking an order directing the public defender's office to respond to a public records request. The petition, filed in civil case no. 2008 CA 015218 NC, was dismissed as moot. Tatum filed a pro se certiorari petition, which was treated as the notice of appeal of the dismissal of his mandamus petition. On May 6, 2009, the state district court of appeal per curiam affirmed the denial of mandamus relief in case no. 2D08-5474. Tatum v. State, 8 So.3d 365 (Fla. 2d DCA 2009)[table]. The mandate issued June 24, 2009.
Tatum also filed a pro se mandamus petition in case no. SC10-12. The Florida Supreme Court directed him to show cause why the petition should not be dismissed as moot because of the state district court of appeal's ruling in case no. 2D08-5223. Tatum did not response to the order to show cause, and the Florida Supreme Court dismissed the mandamus petition as moot on May 3, 2010 in case no. SC10-12. Tatum v. State, 36 So. 3d 85 (2010)[table].
On May 12, 2010, Tatum filed a pro se mandamus petition in case no. 2D10-2223. The petition was denied on May 27, 2010 in case no. 2D10-2223. Tatum v. State, 37 So. 3d 864 (Fla. 2d DCA 2010)[table].
Tatum's pro se 28 U.S.C. § 2254 petition for writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA established a one-year statute of limitations for federal habeas corpus actions. 28 U.S.C. § 2244(d)(1). Tatum's limitations period runs from 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). Subsection (2) of § 2244(d) provides that the "time during which a properly filed application for State postconviction 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."
Tatum's judgment became final upon expiration of the time for seeking certiorari review following the per curiam affirmance in his direct appeal. See Supreme Court Rule 13.3; Nix v. Sec'y Dep't of Corr., 393 F.3d 1235, 1236 (11th Cir. 2004); Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002). By then, he had filed his January 27, 2004, Fla. R. App. P. 9.141 petition-a properly filed application within the meaning of 2244(d)(2)-which was pending until denial of the petition on October 6, 2004.
Thereafter, a period of 44 days elapsed which was not tolled until Tatum filed his pro se Rule 3.850 motion dated November 20, 2004. The Rule 3.850 motion tolling continued until themandate issued on March 24, 2006.2 (Resp. Ex. 27) See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000)(under Florida law, appellate order is pending until mandate issues).
An additional period of 72 days elapsed which was not tolled until Tatum filed another pro se Rule 3.850 motion dated June 5, 2006. (Resp. Ex. 30). This Rule 3.850 motion, although dismissed as successive, constituted a statutory tolling motion. See Artuz v. Bennett, 531 U.S. 4, 11 (2000) (); Drew v. Sec'y Dep't of Corr., 297 F.3d 1278, 1284 (11th Cir. 2002) (). Tatum appealed the denial of relief. The state district court of appeal per curiam affirmed the denial of relief on November 8, 2006. Tatum v. State, 944 So. 2d 994 (Fla. 2d DCA 2006)[table]. The mandate issued January 8, 2007. (Resp. Ex. 39)
By then, Tatum had filed a pro se Rule 3.800(a) motion to correct illegal sentence dated September 5, 2006 (Resp. Ex. 41), which constitutes a "properly filed" motion for purposes of the AEDPA tolling statute. The trial court denied the motion and Tatum appealed. The state district court of appeal affirmed the denial of relief. Tatum v. State, 947 So. 2d 1174 (Fla. 2d DCA 2007)[table]. This properly filed motion tolled the limitations period until February 7, 2007, when the mandate issued in case no. 2D06-4670....
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