Torres v. Sec'y, Fla. Dep't of Corr.
| Decision Date | 29 March 2023 |
| Docket Number | 21-14331 |
| Parties | LUIS RALPHY TORRES, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:18-cv-01337-MMH-JBT Before NEWSOM, GRANT, and TJOFLAT, Circuit Judges.
Luis Ralphy Torres, a Florida prisoner proceeding pro se appeals the District Court for the Middle District of Florida's denial of his 28 U.S.C. § 2254 petition as untimely. We granted a certificate of appealability ("COA") on the issue of whether the District Court erred in determining that Torres's § 2254 petition was untimely based on its finding that his direct appeal ended 90 days after the District Court of Appeal for the First District of Florida (the "First DCA") entered its per curiam opinion affirming his conviction. Because the District Court did not address the impact, if any, of the Florida Supreme Court's sua sponte issuance of a stay in Torres's case, we vacate the District Court's order and remand to the District Court to consider this issue.
On June 11, 2010, a jury in the Circuit Court of the Fourth Judicial Circuit of Florida found Luis Ralphy Torres guilty of trafficking 28 or more, but less than 30, kilograms of oxycodone, in violation of Fla. Stat. Ann. § 893.135. He was sentenced to 30 years' imprisonment.
Torres appealed his conviction to the First DCA, challenging the constitutionality of Fla. Stat. Ann. § 891.135, as modified by § 893.101.[1] The First DCA affirmed his conviction without opinion. Torres v. State, No. 1D10-4346 2011 WL 6167488 (Fla. 1st Dist. Ct. App. Dec. 8, 2011) opinion withdrawn and superseded on clarification, 80 So.3d 416 (Fla. 1st Dist. Ct. App. 2012).
On December 20, 2011, Torres filed a Motion for Rehear-ing/Clarification. He argued that he had challenged the facial constitutionality of an applicable statute and that the First DCA "issued a per curiam affirmance without including a citation even to recent cases from [the] court rejecting the argument." Torres further argued that the constitutionality of the statute in question was currently before the Florida Supreme Court.[2] He asked the First DCA to "clarify its decision by issuing a written opinion consisting of a citation to Flagg v. State, 36 Fla. Law Weekly D2276 (Fla. 1st DCA, Oct[.] 13, 2011), so that [the] issue will be preserved."[3] On February 14, 2012, the First DCA granted Torres's motion, withdrew its December 2011 decision, and issued the following opinion: Torres v. State, 80 So.3d 416 (Fla. 1st Dist. Ct. App. 2012).
A month later, on March 12, 2012, Torres's counsel filed a Notice to Invoke Discretionary Jurisdiction of the Supreme Court of Florida because the First DCA's February 2012 opinion cited a case presently pending before the Florida Supreme Court that found a state statute constitutional. As such, Torres argued that the Supreme Court of Florida could take jurisdiction of his appeal under Fla. R. App. P. 9.030(a)(2)(A)(i).[4]
On March 13, 2012, the First DCA issued the mandate for its February 14, 2012 opinion. The same day, the Supreme Court of Florida filed an Acknowledgment of New Case stating that it had received Torres's Notice to Invoke Discretionary Jurisdiction. Three days later, on March 16, 2012, the Supreme Court of Florida issued the following sua sponte order: "the proceedings in this Court in [Torres v. State] are hereby stayed pending disposition of State v. Adkins, Case No. SC11-1878."[5] On November 9, 2012, the Supreme Court of Florida entered the following order: Torres v. State, 105 So.3d 523 (Fla. 2012).
On February 4, 2013, Torres filed a consolidated petition for certiorari in the United States Supreme Court. The U.S. Supreme Court denied this petition on April 15, 2013.
Following the conclusion of his direct appeal, on August 5, 2013, Torres initiated a state collateral proceeding by filing a pro se Fla. R. Crim. P. 3.850 motion, which he amended on June 24, 2015. On May 16, 2016, Torres, through counsel, filed a motion for permission to file a supplemental memorandum of law, which the Circuit Court for the Fourth Judicial Circuit granted. On February 5, 2018, the Circuit Court denied Torres's Rule 3.850 motion for post-conviction relief. On February 23, 2018, Torres, through counsel, appealed the denial of his Rule 3.850 motion. Torres also filed a pro se motion for reconsideration of his Rule 3.850 motion on February 26, 2018. The First DCA affirmed the denial without opinion.
On September 12, 2018, Torres filed the instant pro se § 2254 petition in the District Court for the Middle District of Florida. The State responded by moving to dismiss Torres's § 2254 motion as untimely. The State argued that Torres's judgment did not become final upon conclusion of direct review in the U.S. Supreme Court on April 15, 2013, as alleged by Torres, but rather, it became final 90 days after the First DCA entered its judgment-May 14, 2012-because the Supreme Court of Florida dismissed his case for lack of jurisdiction. Torres did not file his petition for certiorari until June 4, 2013. The State argued that because Torres's cert petition was untimely, it did not toll the Antiterrorism and Effective Death Penalty Act (the "AEDPA") statute of limitations. The State went on to claim that Torres's time under the AEDPA ran for one year until it expired on May 15, 2012, because there were no properly filed state applications for post-conviction or other collateral relief pending in the interim. Because the AEDPA statute of limitations had already expired, neither of Torres's Rule 3.850 motions could toll the statute of limitations, according to the State, because "no time remained within the limitations period to toll." Torres's § 2254 petition was therefore over three years out of time.
Torres replied that he had filed a timely notice of intent to invoke the discretionary jurisdiction of the Supreme Court of Florida. In response to his notice, the Supreme Court of Florida entered an Acknowledgement of New Case and sua sponte stayed his case pending resolution of Adkins. Torres asserts that his notice was properly filed in the Supreme Court of Florida, which entertained it instead of dismissing it as unauthorized. In a supplemental filing, Torres claimed that while Flagg v. State was not pending before the Supreme Court of Florida, Adkins, which contained the same exact subject matter, was. Both Flagg and Adkins arose from Shelton v. Sec'y, Dept. of Corr., 802 F.Supp. 1289 (M.D. Fla. 2011), which held that § 893.13 was facially unconstitutional. Torres argued that the Supreme Court of Florida "clearly recognized the linking subject matter and sua sponte stayed [his] proceedings pending disposition in State v. Adkins."
The District Court dismissed the § 2254 petition as untimely. According to the District Court, "[b]ecause the First DCA's opinion was not capable of review under Florida law, Torres'[s] judgment became final when the ninety-day period in which to file a petition for certiorari in the United States Supreme Court expired," or May 14, 2013. Order, Doc. 10 at 7-8. Torres did not file a motion that would have tolled the statute of limitations under § 2244(d)(2) until August 4, 2013, when he filed a Rule 3.850 motion. By that time, according to the District Court, the statute of limitations had already expired. Further, the District Court held that Torres failed to present an argument that equitable tolling should apply.
This Court granted a COA to determine: "Whether the district court erred in determining that Torres's § 2254 petition was untimely based on finding that his direct appeal ended 90 days after the Florida First District Court of Appeal entered its per curiam opinion affirming his conviction?"
On appeal, Torres argues that he is entitled to tolling because he properly invoked the Supreme Court of Florida's discretionary jurisdiction over his case and the Supreme Court later divested itself of that jurisdiction through a series of subsequent decisions, but through no fault of Torres's.[6] Torres further argues that the AEDPA statute of limitations was properly tolled when the Supreme Court of Florida sua sponte stayed the proceedings because the Supreme Court of Florida "exercised de facto jurisdiction" over his proceeding. Finally, Torres argues that if this Court finds that the sua sponte stay did not toll the AEDPA statute of limitations, he is entitled to equitable tolling.
The State, on the other hand, argues that the statute of limitations expired on May 14, 2013. It argues that because the Supreme Court of Florida did not have jurisdiction Torres's motion did not toll AEDPA's statute of limitations. Because the Supreme Court of Florida did not have jurisdiction, the First DCA was the state court of last resort, and it entered its judgment on February 14, 2012. This gave Torres until May 14, 2012, to petition the U.S. Supreme Court for certiorari, which he did not do within that time frame. After May 14, 2012, the AEDPA statute of limitations ran unabated until it expired. Because they were filed after the AEDPA statute of limitations expired, Torres's Rule 3.850 motions could not have tolled the statute of limitations. Finally, the State argues that Torres is not entitled to equitable tolling because (1) he raises this argument for the first time on appeal; and (2) he fails on the merits...
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