Townsend v. Crews
| Decision Date | 10 November 2014 |
| Docket Number | CASE NO. 14-24126-Civ-MORENO |
| Parties | WILLIAM ALEXANDER TOWNSEND, Petitioner, v. MICHAEL D. CREWS, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
William Alexander Townsend, a state prisoner currently confined at Union Correctional Institution, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254, challenging the constitutionality of his conviction and sentence, entered following a jury trial in Miami-Dade County Circuit Court, case number F97-007241.
This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
No order to show cause has been issued because, on the face of the petition, it is evident petitioner is entitled to no relief. See Rule 4, Rules Governing Section 2254 Proceedings ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.").
The undersigned has reviewed the habeas petition (DE#1), theon-line dockets for the Miami-Dade County Circuit Court, the Third District Court of Appeal, and the Florida Supreme Court.1
Petitioner was charged with and convicted of first degree premeditated murder. (DE#1;Miami-Dade County Docket). He was adjudicated guilty and sentenced to life in prison. (Id.). His judgment and sentence were entered on November 17, 1999. (Id.).
Petitioner appealed his conviction and sentence to the Third District Court of Appeal, case no. 3D99-3125. Following briefing by both parties, the District Court, on June 27, 2001, per curiam and without a written opinion, affirmed petitioner's conviction and sentence.(Third District Court Docket); see also Townsend v. State, 790 So.2d 426 (Fla. 3d DCA 2001)(Table).
In the instant case, petitioner's conviction and sentence became final on September 25, 2001, which is the ninety days within which petitioner could have sought certiorari review in the United States Supreme Court following the Third District's affirmance on direct appeal. See Gonzalez, 132 S.Ct. at 653-54; see also Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002) (). Accordingly, petitioner could have sought review in the United States Supreme Court without first petitioning the Florida Supreme Court for review and his conviction and sentence therefore became final when the ninety-day limit forseeking such review expired.
Petitioner therefore had until September 25, 2002, to file a timely federal petition unless he availed himself of state post-conviction motions which would toll the time period. See 28 U.S.C. §2244(d)(2)(tolling the limitation period 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"); Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278 (2011).2 The AEDPA clock resumes running when the state's highest court issues its mandate disposing of the motion for post-conviction relief. Lawrence v. Florida, 549 U.S. 327, 331-32, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007).
The federal limitations ran unchecked for 632 days, from the time his conviction became final on September 25, 2001, until June 19, 2003, when he returned to the trial court filing a motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.850. (See Miami-Dade County Docket). The motion was denied and petitioner appealed. Townsend v. State, 856 So.2d 1007 (Fla. 3d DCA 2003)(Table). On October 8, 2003, the district court, per curiam and without written opinion, affirmed the denial of his Rule 3.850 motion. Id. The mandate issued on October 24, 2003.
After conclusion of numerous state court proceedings not relevant to the federal limitations here, the petitioner next came to this Court, filing this federal habeas petition on October 30, 2014. (DE#1).
Review of the petition and the on-line dockets reveals that this petition should be dismissed as time-barred for the reasons indicated immediately below. Since petitioner filed his federal habeas petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. See Wilcox v. Fla.Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998)(per curiam). The AEDPA imposed for the first time a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners.3 See 28 U.S.C. §2244(d)(1)("A 1-year period of limitation shall apply to an application for a writ of habeas corpus . . . .").
As will be recalled, petitioner's judgment became final at the latest on September 25, 2001. Thus, the petitioner had one year from the time his conviction became final, or no later than September 25, 2002, within which to timely file this federal habeas petition. This federal petition for writ of habeas corpus challenging the instant conviction was not filed until October 30,2014, well beyond one-year after the date on which the judgment became final. The petition is, therefore, time-barred, pursuant to 28 U.S.C. §2244(d)(1)(A), unless the appropriate limitations period was extended by properly filed applications for state post-conviction or other collateral review proceedings. 28 U.S.C. §2244(d)(2).
As indicated above, petitioner pursued collateral relief in the state trial court. However, he did not institute post-conviction proceedings until June 19, 2003, after the applicable limitation period had already expired on September 25, 2002. Consequently, he is not entitled to tolling credit for the time his post-conviction proceedings remained pending. Once the limitation period expires, it cannot be reinitiated. See 28 U.S.C. §2244(d)(2). It is now well-settled that a state petition filed after expiration of the federal limitations period cannot toll the period, because there is no period remaining to be tolled. See also Tinker v. Moore, 255 F.3d 1331, 1332 (11th Cir. 2001)( that a state petition filed after expiration of the federal limitations period cannot toll the period, because there is no period remaining to be tolled); Webster v. Moore, 199 F.3d 1256, 1258-60 (11th Cir.)( that even properly filed state court petitions must be pending in order to toll the limitations period), cert. denied, 531 U.S. 991 (2000).See also Hollinger v. Sec'y, Dep't of Corr', 334 Fed.Appx. 302, 304-305, 2009 WL 1833746, *2 (11th Cir. 2009), citing, Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003)(concluding that Rule 3.850 motion, "filed after expiration of the limitations period[,] does not relate back so as to toll idle periods preceding the filing of the federal [habeas] petition"); Rich v. Sec'y, Dep't of Corr's, 317 Fed.Appx. 881 (11th Cir. 2008)(table); Scarlett v. Sec'y, Dep't of Corr's, 404 Fed.Appx. 394 (11th Cir. 2010). Consequently, the filing of the motion, after theone-year federal limitations period expired, did nothing to toll the limitations period, and this federal petition is thus time-barred.
Notwithstanding, both the United States Supreme Court and Eleventh Circuit Court of Appeals have held that equitable tolling can be applied to prevent the application of the AEDPA's statutory deadline when extraordinary circumstances have worked to prevent an otherwise diligent petitioner from timely filing his petition. Holland v. Florida, 560 U.S. 631, 648, 130 S.Ct. 2549, 2562 (2010)("We have previously made clear that a 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.")(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); San Martin v. McNeil,4 633 F.3d 1257, 1267 (11th Cir. 2011); Chavez v. Secretary, Dept. of Corrections, 2011 WL 2990060, at *7 (11th 2011).
"The diligence required for equitable tolling purposes is 'reasonable diligence,' not 'maximum feasible diligence.'" Holland v. Florida, 560 U.S. at 652, 130 S.Ct. at 2565 (quoting Lonchar v. Thomas, 517 U.S. 314, 326 (1996)). "As for the 'extraordinary circumstances' prong . . . a defendant [must] show a causal connection between the alleged extraordinary circumstances and the late filing of the petition." San Martin v. McNeil, 633 F.3d at 1267.
In Holland, the Supreme Court reiterated that it had previously found that "'a garden variety claim of excusable neglect,' such as a simple 'miscalculation' that leads a lawyer to miss a filing deadline, does not warrant equitable tolling." Holland, 560 U.S. at 651, 130 S.Ct. at 2564 (citations omitted)(quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The Holland Court noted that when facts of the case warrant it, equitable tolling can be applied in the "absence of an allegation and proof of bad faith, dishonesty, divided loyalty, [or] mental impairment." Holland, 560 U.S. at 642-43, 130 S.Ct. at 2559-60. The court further explained that "professional conduct that fails to [rise to that level] could nonetheless amount to egregious behavior that warrants equitable tolling." Holland, 560 U.S. at 650-51, 130 S.Ct. at 2563-64.
In setting aside a court's finding that no diligence had been demonstrated, the Supreme Court found that Holland's counsel had not only failed to file Holland's federal petition on time, but also failed to inform Holland in a timely manner about the crucial fact that the Florida Supreme Court had decided his case. Holland, 560 U.S. at 651, 130 S.Ct. at 2564. The Supreme Court further found that counsel failed to communicate with his client over a period of years,...
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