Cuffy v. Inch

JOHNSON CUFFY, Petitioner, v. MARK S. INCH, Respondent.

CASE NO. 18-62463-CV-ALTMAN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

January 25, 2021

ORDER

The Petitioner, Johnson Cuffy, has brought a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his 2012 conviction and sentence. See Petition [ECF No. 1]. The Court referred the Petition to United States Magistrate Judge Lisette M. Reid, who issued a Report and Recommendation. See Report [ECF No. 61].¹ In her Report, the Magistrate Judge recommended that the Petition be dismissed as time-barred. Id. at 24. The Petitioner timely objected to certain portions of the Report. See Objections [ECF No. 62]. For the reasons set out below, the Court ADOPTS the Report in part and DENIES the Petition.

BACKGROUND

In October of 2012, a Florida jury convicted the Petitioner of eight separate felonies, which included one count of racketeering, one count of conspiracy to commit racketeering, and six counts of grand theft. See Judgment [ECF No. 19-1] at 60-71. For these crimes, the state court sentenced thePetitioner to 30 years in prison.² See Sentencing Order [ECF No. 19-1] at 76-94. The Petitioner timely appealed to the Fourth District Court of Appeal ("Fourth DCA"), see Fourth DCA Docket Sheet [ECF No. 19-1] at 101, which affirmed the conviction and sentence on February 18, 2016, see Cuffy v. State, 186 So. 3d 1037 (Fla. 4th DCA 2016).³ The Fourth DCA's mandate issued on March 18, 2016. See Direct Appeal Mandate [ECF No. 19-1] at 291. The Petitioner did not pursue his claim in either the Florida Supreme Court or the Supreme Court of the United States. See Report at 4-5.

On March 24, 2016, approximately one month after the Fourth DCA's decision, the Petitioner filed his first Rule 3.850 Motion—which he promptly amended and then supplemented. See 2016 Rule 3.850 Motion ("First Rule 3.850 Motion") [ECF No. 19-1] at 295, 308, 369. The state trial court incorporated the State's response, denied the motion as procedurally barred, and found that "all of the claims are merely rewordings of arguments that Defendant raised or should have raised on direct appeal." Order Denying First Rule 3.850 Motion [ECF No. 19-1] at 477. The Petitioner appealed, see id. at 480, and the Fourth DCA summarily affirmed, see Cuffy v. State, 230 So. 3d 858 (Fla. 4th DCA 2017). The Fourth DCA's mandate on this first 3.850 appeal issued on May 12, 2017. See 2017 Fourth DCA Mandate [ECF No. 19-1] at 510.

Twenty-five days later, on June 6, 2017, the Petitioner filed his second Rule 3.850 Motion.⁴ See 2017 Rule 3.850 Motion ("Second Rule 3.850 Motion") [ECF No. 19-1] at 535. On June 16, 2017, thestate court dismissed the motion as successive and, alternatively, denied it on the merits. See Order Denying Second Rule 3.850 Motion [ECF No. 19-1] at 546-57 ("Even if it were not procedurally barred [as successive], it is DENIED."). The Petitioner appealed on June 26, 2017, see Notice of Appeal for Second Rule 3.850 Motion [ECF No. 19-1] at 561, and the Fourth DCA summarily affirmed, see Cuffy v. State, 231 So. 3d 446 (Fla. 4th DCA 2017). The mandate in this second 3.850 appeal issued on October 6, 2017. See Second 2017 Fourth DCA Mandate [ECF No. 19-1] at 602.

On July 27, 2017—while his appeal of the second Rule 3.850 Motion was pending—the Petitioner filed a motion to disqualify Judge Ilona Holmes, the state judge who had presided over his case, alleging that "there was a deal made between Judge Levenson and Judge Holmes to control the outcome of case [sic] in favor of the state." Motion to Disqualify [ECF No. 19-1] at 563. On September 4, 2017, the Petitioner filed a motion "for a new trial and reconsideration of all previous rulings entered by disqualified Judge Holmes," claiming (incorrectly) that his Motion to Disqualify "was automatically granted by the clerk of court on August 30, 2017[.]" Motion for Reconsideration [ECF No. 19-1] at 573. In this Motion for Reconsideration, the Petitioner alleged that Judge Holmes had violated his right to a fair trial and sought "a new trial and reconsideration of all previous rulings entered by disqualified Judge Holmes." Id. at 576. The record does not say whether either motion was ever ruled on.

On June 8, 2018—245 days after the Mandate issued in his second Rule 3.850 appeal—the Petitioner filed a "Verified Motion to Vacate Judgement and Sentence under Florida Rule 3.850," essentially his third Rule 3.850 Motion. See 2018 Rule 3.850 Motion ("Third Rule 3.850 Motion") [ECF No. 19-1] at 604-05. On June 12, 2018, the state court dismissed this third Rule 3.850 Motion assuccessive, summarily denied it on the merits, and dismissed it as time-barred (in part) because the Petitioner conceded its untimeliness. See Order Dismissing Third Rule 3.850 Motion [ECF No. 19-1] at 607-08 & n.1 ("Defendant concedes that his motion is time barred and successive, motion p.1."). On September 20, 2018, the Petitioner—acting through counsel—filed a motion for reconsideration, see Motion for Reconsideration on Denial of Third Post Conviction Motion [ECF No. 19-1] at 625, which the state court denied, see Respondent's Exhibits in Support of Objections to Second Report and Recommendations [ECF No. 44-1] at 12 ("Objection Exhibits to Second Report").

In July of 2018, the Petitioner moved—again, through counsel—to reassign the case, claiming (as before) that his 2017 Motion to Disqualify had been granted. See 2018 Motion for Clerks Office for Order to Reassign Case ("Motion to Reassign") [ECF No. 19-1] at 628. The state court denied this second Motion to Reassign on August 14, 2018. See Order Denying Motion to Reassign Case [ECF No. 19-1] at 630. The Petitioner filed this action on October 8, 2018. See Petition.⁵

STANDARD OF REVIEW

When a magistrate judge's "disposition" has been properly objected to, district courts must review that disposition de novo. FED. R. CIV. P. 72(b)(3). But, when no party has timely objected, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." FED. R. CIV. P. 72 advisory committee's notes (citation omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged that Congress's intent was to require de novo review only where objections have been properly filed—and not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congressintended to require district court review of a magistrate [judge]'s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.").

"A party filing objections must specifically identify those findings objected to and the specific basis for such objections." Hidalgo Corp. v. J. Kugel Designs, Inc., 2005 WL 8155948, at *1 (S.D. Fla. Sept. 21, 2005). Therefore, the "[f]ailure to object to the magistrate [judge]'s factual findings after notice precludes a later attack on these findings." Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)).

THE LAW

"[A] person in custody pursuant to the judgment of a State court" has one year to file a § 2254 petition in federal court. 28 U.S.C. § 2244(d)(1). That one-year period "runs from the latest of" the following dates:

(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.

§ 2244(d)(1)(A)-(D).

Of course, "[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" is not "counted toward any period of limitation under this subsection." § 2244(d)(2). In addition to this "statutory tolling," a petitioner may qualify for "equitable tolling" if he can show "'(1) that he has been pursuinghis rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 549 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

ANALYSIS

This case is complicated. The confusion stems, in no small part, from the Magistrate Judge's Report—which, though deeply flawed, somehow spit out the right answer. The Report's primary flaw is that it ignored the Petitioner's central timing contention: that either his Motion to Disqualify or his Motion for Reconsideration (or both) tolled his one-year statute of limitations under § 2244(d)(2)—what we call statutory tolling. See Pet. at 5; Report at 11. Instead, the Magistrate Judge determined that the Petitioner doesn't qualify for equitable tolling. See Report at 20 ("As a result of Petitioner's failure to properly and diligently pursue his rights, he has failed to demonstrate that he qualifies for the equitable tolling of the limitations period."). The Magistrate Judge was right on this one. In fact, in his Objections, the Petitioner wisely doesn't dispute the point. See generally Obj.⁶ Instead, he hammers the Report for failing to address his position on statutory tolling. See id. at 1. Unfortunately for the Petitioner, while he's right to lambast the Report's failings, his Petition is still time-barred under § 2244(d)(2).

I. The Petition is Untimely

Here's why. In ordinary circumstances, the Petitioner would have had one...