Dennis v. Dixon

1

TRE-VON D. DENNIS, Petitioner, v. RICKY D. DIXON, ^[1]Respondent.

No. 4:21cv231-WS-HTC

United States District Court, N.D. Florida, Tallahassee Division

January 6, 2022

ORDER AND REPORT AND RECOMMENDATION

HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

Petitioner Tre-Von D. Dennis, proceeding pro se and in forma pauperis, filed a habeas petition under 28 U.S.C § 2254 (ECF Doc. 1), seeking to vacate a judgment and sentence imposed by the Second Judicial Circuit in and for Leon County, after a jury found Petitioner guilty of premediated murder and premediated attempted murder during a drive-by shooting. ECF Doc. 10-1 at 31. The Court directed Respondent to respond to the petition and the Respondent filed a motion to dismiss the petition as untimely. ECF Doc 10. The Petitioner filed a response in opposition ECF Doc. 12, and subsequently filed an “amended petition, ” ECF Doc. 13, without first seeking leave to amend.

The matter was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). For the reasons set forth below, the undersigned directs the clerk to strike the Amended Petition and respectfully recommends the Motion to Dismiss be GRANTED and the Petition be DISMISSED as untimely.

I. THE PETITION WAS NOT FILED WITHIN THE ONE-YEAR FEDERAL TIME LIMIT

Under the Antiterrorism and Effective Death Penalty Act Of 1996 (“AEDPA”), a § 2254 petition must be filed within one year of certain “trigger dates.” 28 U.S.C. § 2244(d)(1). Here, the applicable trigger date is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). Additionally, the limitations period is tolled for the time during which a “properly filed” application for postconviction relief or other collateral review is pending in state court. 28 U.S.C. § 2244(d)(2).

Petitioner filed a direct appeal of his judgment and sentence but did not seek United States Supreme Court certiorari review. ECF Doc. 1 at 3. Thus, Petitioner's conviction became final ninety (90) days after the First District Court of Appeal (“First DCA”) issued its opinion affirming the judgment on January 9, 2017. ECF Doc. 10-5 at 4; First DCA Case No. 1D15-4547); see Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002) (holding a state prisoner's conviction becomes final when the U.S. Supreme Court denies certiorari, issues a decision on the merits, or when the 90-day period to file a petition for certiorari expires). Therefore, the judgment became final on April 10, 2017 (the Monday after April 9, 2017).

No application for postconviction relief was pending until Petitioner filed a 3.850 motion on March 16, 2018, ECF Doc. 10-7 at 5. By the time of that filing, 340 days ran on the AEDPA one-year clock. That motion was continuously pending until the June 9, 2020, mandate of the First DCA affirming the denial of the 3.850 motion. ECF Doc. 10-11. Therefore, Petitioner had until July 6, 2020, (the Monday after the July 4 expiration date) to file a federal habeas petition. Petitioner did not file the instant petition until May 28, 2021, more than 326 days later.

II. PETITIONER IS NOT ENTITLED TO EQUITABLE TOLLING

Petitioner does not dispute the petition is untimely. Instead, he argues he is entitled to equitable tolling on the following grounds: (1) he could not prepare his 3.850 motion because he could not get the appellate record on appeal from his direct appeal counsel until after he was forced to file a writ of mandamus; (2) he could not file a federal petition after affirmance of the denial of his 3.850 motion on June 9, 2020 because he did not receive a letter from counsel informing him of the affirmance and therefore did not learn of the affirmance until October 8, 2020; and (3) the prison housing Petitioner had limited law library access as a consequence of the coronavirus pandemic and Petitioner relied upon inmate law clerks. The undersigned agrees with the Secretary that equitable tolling is not applicable.

The United States Supreme Court has held that the AEDPA's statutory limitations period may be tolled for equitable reasons. Holland v. Florida (Holland II), 560 U.S. 631, 645 (2010). However, “equitable tolling is an extraordinary remedy ‘limited to rare and exceptional circumstances and typically applied sparingly.'” Cadet v. Florida Department of Corrections, 853 F.3d 1216, 1221 (11th Cir. 2017) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)). 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.” Holland II, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The diligence and extraordinary circumstances requirements “are separate elements, both of which must be met before there can be any equitable tolling.” Cadet, 853 F.3d at 1225.

In determining whether a petitioner has pursued his or her rights diligently, “[t]he diligence required . . . is reasonable diligence, not maximum feasible diligence.” Id. at 1221 (quoting Holland II, 560 U.S. at 653, 130 S.Ct. 2549); accord Smith v. Comm'r, Ala. Dep't of Corr., 703 F.3d 1266, 1271 (11th Cir. 2012) (“[D]ue diligence . . . does not require a prisoner . . . to exhaust every imaginable option, but rather to make reasonable efforts.” (alterations in original) (quoting Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002))). “[T]he due diligence inquiry is an individualized one that must take into account the conditions of confinement and the reality of the prison system.” Smith, 703 F.3d at 1271 (alteration in original) (quoting Aron, 291 F.3d at 712).

As to establishing an extraordinary circumstance, Petitioner must show a causal connection between the alleged circumstance and the late filing, San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011), and the extraordinary circumstance must be “unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999) (per curiam). While the due diligence prong covers those affairs within the litigant's control, “the extraordinary-circumstances prong, by contrast, is meant to cover matters outside its control.” Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257 (2016) (“the second prong of the equitable tolling test is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond its control.”).

For the reasons which follow, Petitioner does not meet these standards for any of the three periods of tolling he seeks.

A. Period During Which He Sought Record on Appeal from Direct Appeal Appellate Counsel

Petitioner argues that, despite numerous requests, he did not receive the appellate record on appeal from his counsel until after he was forced to file a writ of mandamus. ECF Doc. 1 at 13-14; ECF Doc. 12 at 2-4. As a result, he claims he was prevented from filing his initial 3.850 motion sooner. Id. The undersigned finds the Petitioner's inability to obtain the appellate record from his counsel does not constitute extraordinary circumstances necessary to warrant equitable tolling.

First, the Eleventh Circuit has held that “periods in which a prisoner is separated from his legal papers are not ‘extraordinary circumstances' in which equitable tolling is appropriate.” See Akins v. United States, 204 F.3d 1086, 1089- 90 (11th Cir. 2000); see also Dodd v. United States, 365 F.3d 1273, 1282-83 (11th Cir. 2004) (holding equitable tolling not appropriate where petitioner was transferred to a different facility and detained there for over ten months without access to his legal papers, stating “Akins suggests that lockdowns and periods in which a prisoner is separated from his legal papers are not ‘extraordinary circumstances' in which equitable tolling is appropriate.”); Paulcin v. McDonough, 259 Fed.Appx. 211, 213 (11th Cir. 2007) (holding lack of access to law library and legal papers for as much as ten months of one-year limitation period was not extraordinary, and petitioner failed to allege how lack of access thwarted his efforts to file a timely petition).

Second, as the Secretary points out, even without the appellate record, Petitioner could have filed a 3.850 motion well before March 2018, and before over 300 days had expired on the AEDPA clock. Florida Rule of Criminal Procedure 3.850 does not require movants to file supporting documentation to the motion; it merely requires the movant to explain “the nature of the relief sought; and . . . a brief statement of the facts and other conditions relied on in support of the motion.” Fla. R. Crim. P. 3.850(c). Indeed, “a 3.850 movant has the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court has not yet ruled on the merits of the motion.” Hyacinthe v. State, 940 So.2d 1280, 1281 (Fla. Dist. Ct. App. 2006).

Petitioner admits in a letter to counsel dated March 17, 2017, that he was aware of “postconviction time limitations requirements, both State and Federal” and that he was aware counsel was not going to print out the record and send it to him. ECF Doc. 12-1 at 14. Nonetheless, instead of filing a 3.850 motion sooner in time, Petitioner waited until 340 days had passed on the AEDPA clock to do so. Given such a delay, Petitioner has shown neither due diligence nor extraordinary circumstances.

Third Petitioner still had twenty-five (25) days after the First DCA issued its mandamus affirming the denial of the 3.850 motion to file the motion and undisputedly had the appellate record at that time. Petitioner, however,...