Walsh v. Sec'y, Dep't of Corr.

• Decision Date: 09 March 2023
• Docket Number: 8:19-cv-3153-MSS-AEP
• Parties: HARRY M. WALSH, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

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HARRY M. WALSH, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

No. 8:19-cv-3153-MSS-AEP

United States District Court, M.D. Florida, Tampa Division

March 9, 2023

ORDER

MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE

Walsh petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges his state court convictions for possession of child pornography in State v. Walsh No. 12-CF-16132 (Fla. 12th Jud. Cir.) and State v Walsh, No. 12-CF-16432 (Fla. 12th Jud. Cir.). (Docs. 1 and 2) The Respondent responds that the petition is untimely (Doc. 13), and Walsh replies. (Doc. 15) After reviewing the petition, the response, the state court record (Doc. 14), and the reply, the Court construes the Respondent's response (Doc. 13) as a motion to dismiss and DENIES the construed motion to dismiss.

PROCEDURAL HISTORY

An amended information in No. 12-CF-16432 charged Walsh with ten counts of possession of child pornography. (Doc. 14-2 at 79-84) An amended information in No. 12-CF-16132 charged Walsh with seven counts of possession of child pornography. (Doc. 14-8 at 88-92) In both cases, Walsh pleaded no contest to the crimes without an agreement with the prosecutor and reserved his right to appeal an order denying his motion to suppress and an order denying his motion to dismiss. (Docs 14-3 at 191, 197-98 and 14-9 at 81, 87-88) In No. 12-CF-16432, the trial court sentenced Walsh to 220 months on one count and 180 months on the remaining nine counts, with three counts imposed consecutively and all remaining counts imposed concurrently, for an aggregate sentence of 580 months. (Docs. 14-4 at 185-88 and 14-14 at 150) In No. 12-CF-16132, the trial court sentenced Walsh to 180 months on all seven counts, with all counts imposed concurrently but imposed consecutively to the sentence in No. 12-CF-16432. (Doc. 14-10 at 184-86)

Walsh appealed the convictions and sentences. (Docs. 14-4 at 190-91 and 14-10 at 187-88) The state appellate court consolidated the two appeals and affirmed in a written opinion. (Doc. 14-14 at 89-99)^[1] The state supreme court denied Walsh review. (Doc. 14-14 at 202)

Walsh moved to correct his sentence under Rule 3.800(a), Florida Rules of Criminal Procedure (Doc. 14-14 at 260-65), and the post-conviction court denied relief. (Doc. 14-14 at 266-75) Walsh contends that he timely placed in the hands of prison officials for mailing a notice of appeal. (Doc. 14-14 at 280) However, the trial court clerk never received the notice of appeal. Almost a year later, Walsh filed in the state appellate court a document titled “Motion to Accept Appeal as Timely.” (Doc. 14-14 at 290-95) The state appellate court construed the pro se motion as a petition for a belated appeal, granted the construed petition, and directed the state court trial clerk to treat the order granting belated review as a notice of appeal. (Doc. 14-14 at 311) The state appellate court reviewed and affirmed the postconviction court's order denying relief. (Doc. 14-14 at 285) Walsh's federal petition follows.

ANALYSIS

Because Walsh filed his Section 2254 petition after the enactment of the Antiterrorism and Effective Death Penalty Act, AEDPA applies. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a one-year statute of limitation applies to a Section 2254 petition. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitation period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

In his petition, Walsh asserts that the trial court violated his Fifth Amendment right against double jeopardy by imposing the consecutive sentences and violated his Fourth Amendment right against unreasonable searches and seizures by denying his motion to suppress. (Doc. 1 at 5-10) Consequently, the limitation period began to run when direct review concluded or the time to seek direct review expired. 28 U.S.C. § 2244(d)(1)(A).

On October 5, 2016, the state supreme court denied review. (Doc 14-14 at 202) Walsh did not seek further review in the U.S. Supreme Court, and the time to seek that review expired ninety days later - January 4, 2017. Sup. Ct. R. 13(3). The limitation period started to run the next day. Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002).

The limitation period tolls while “a properly filed application for State postconviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2). The limitation period ran for 252 days until September 14, 2017, when Walsh placed in the hands of prison officials for mailing a motion to correct his sentence. (Doc. 14-14 at 260-64) The postconviction court denied the motion on September 27, 2017. (Doc. 14-14 at 266-75) Walsh contends that he placed a notice of appeal in the hands of prison officials for mailing on October 23, 2017. (Doc. 14-14 at 280-81) The clerk of the trial court never received the notice of appeal.

Almost a year later, on October 12, 2018, Walsh placed in the hands of prison officials for mailing to the state appellate court a document titled “Motion to Accept Appeal as Timely.” (Doc. 14-14 at 290-95)^[2] In the motion, he asserted that the notice of appeal was timely filed under Florida's prison mailbox rule. (Doc. 14-14 at 291) Attached to the motion is a notice of appeal signed by Walsh with a prison stamp stating that the prison received the document for mailing on October 23, 2017. (Doc. 14-14 at 294)

After the state appellate court directed Walsh to file an amended petition for a belated appeal under oath, Walsh filed a document titled “Amended Motion to Accept as Timely” and requested that the state appellate court not construe the document as a petition for a belated appeal (Doc. 14-14 at 298):

Appellant received an order from this Court directing him to file an amended petition for belated appeal. However, Appellant would be prejudiced by proceeding under a belated appeal, because it would negatively impact his ability to file a timely habeas petition under 28 U.S.C. § 2254, where belated appeals are not considered by [the] federal courts as valid reasons for equitable tolling of the one-year period of limitations.

Accordingly, based on the facts stated herein, Appellant respectfully requests this court [to] allow the instant appeal to proceed as initiated through a notice of appeal filed on October 23, 2017, and attached as Exhibit 1 of Appellant's Motion to Accept Appeal as Timely.

Counsel for the State of Florida responded that she consulted with the prosecutor's office, reviewed the prosecutor's file, and could neither confirm nor deny Walsh's allegations concerning the notice of appeal. (Doc. 14-14 at 303-09) On February 14, 2019, the state appellate court construed the pro se motion as a petition for a belated appeal and granted the construed motion as follows (Doc. 14-14 at 311):

Petitioner's “motion to accept appeal as timely” is treated as a petition for belated appeal. The petition for belated appeal of the summary denial of petitioner's post-conviction motion in the trial court is granted in circuit court case number 2012-CF-16132-NC and 2012-CF-16432-NC for review of the trial court's order of September 26, 2017.

The circuit court clerk shall treat this order as a notice of appeal, promptly certify [the] same, and return it to this court as with any notice of appeal, and a new appellate case number will be assigned to this appeal and an acknowledgment letter will issue at that time. The summary record shall be transmitted to this court when the certified copy of this order is returned by the trial court clerk.

After a new appellate case number is assigned and an acknowledgment letter has issued, this court will issue an order advising the appellant of the due date of the optional initial brief.

On October 30, 2019, the state appellate court affirmed the post-conviction court's order denying relief. (Doc. 14-14 at 285)

The Respondent asserts that the petition is untimely because Walsh failed to timely appeal the order denying his motion to correct his sentence, the limitation period started to run when the time to appeal expired, the limitation period expired before Walsh filed his construed petition for a belated appeal, and the petition for a belated appeal did not toll the limitation period. (Doc. 13 at 9)

Walsh responds that, under Florida's prison mailbox rule, the notice of appeal was timely and properly filed. (Doc. 15 at 5) He contends that a prison stamp on the notice of appeal shows that he placed the notice in the hands of prison officials for mailing on October 23, 2017. (Doc. 15 at 6) He asserts that the prison stamp proves that he complied with the state court's procedural requirements governing the time and place of filing a notice of appeal. (Doc. 15 at 6)

In a subsequent filing, the Respondent asserts that the prison stamp on the notice of appeal fails to comply with Rule 33-210.102(8)(g), Florida Administrative Code, which requires initials by both the prisoner submitting the document for mailing and the prison official receiving the document. (Doc 20 at 3-4) Walsh responds that the institution where he...