Rupp v. Sec'y, Fla. Dep't of Corr.

FLOYD THOMAS RUPP, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,AND FLORIDA ATTORNEY GENERAL, Respondents.

Case No. 3:17-cv-1101-J-32PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

January 19, 2021

ORDER

I. Status

Petitioner, Floyd Thomas Rupp, an inmate of the Florida penal system, initiated this action by filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. He is proceeding on an Amended Petition. Doc. 8. Petitioner challenges a state court (Duval County, Florida) judgment of conviction for which he is serving a life term of incarceration. Id. at 1-2. Respondents assert this action is untimely filed and request dismissal of this case with prejudice. See Doc. 22.¹ After Respondents moved to dismiss, Petitioner filed a motion to amend his Amended Petition, asserting an amendment is necessary to add a claim based on newly discoveredevidence. Doc. 25. Because Respondents raised a limitations defense, the Court deferred ruling on the motion for leave to amend and directed Petitioner to file a reply to Respondents' Motion to Dismiss. Doc. 26. Petitioner replied, see Doc. 27, and thus, the Motion to Dismiss is ripe for review.

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 Courtand 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.

(2) The 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 shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

III. Analysis

On September 3, 2013, a jury found Petitioner guilty of two counts of capital sexual battery (counts one and two), two counts of sexual battery (counts three and four), and one count of lewd and lascivious molestation (count five). Resp. Ex. A at 144-48. On October 9, 2013, the trial court adjudicated Petitioner as a sexual predator and sentenced him to a life term of incarceration on counts one, two, and five, and a thirty-year term on counts three and four. Id. at 184. Petitioner, with help from appellate counsel, sought a direct appeal, and on October 2, 2014, the First District Court of Appeal per curiam affirmed his convictions without a written opinion. Resp. Ex. F. Petitioner filed a motion for written opinion and clarification, Resp. Ex. G, which the First DCA denied onNovember 19, 2014, Resp. Ex. H. Petitioner's judgment and sentence became final 90 days later on Tuesday, February 17, 2015. See Clay v. United States, 537 U.S. 522 (2003); Close v. United States, 336 F.3d 1283, 1285 (11th Cir. 2003) ("According to rules of the Supreme Court, a petition for certiorari must be filed within 90 days of the appellate court's entry of judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days of the appellate court's denial of that motion." (citing Supreme Court Rule 13.3)). Petitioner's federal one-year statute of limitations began to run the next day, February 18, 2015, and expired one year later on February 18, 2016, without Petitioner filing a motion for postconviction relief that would toll the one-year period.

After the expiration of his federal limitations period, on July 6, 2016, Petitioner filed with the state court a Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence, Resp. Ex. J at 1-5, and on September 20, 2016, a Rule 3.850 motion, Resp. Ex. N at 1-109. Because there was no time left to toll, however, Petitioner's state court motions for postconviction relief did not toll the federal one-year limitations period. See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating where a state prisoner files postconviction motions in state court after the AEDPA limitations period has expired, those filings cannot toll the limitations period because "once a deadline has expired, there is nothing left to toll"); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (per curiam) ("Under § 2244(d)(2), even 'properly filed' state-courtpetitions must be 'pending' in order to toll the limitations period. A state-court petition like [the petitioner]'s that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled."). Thus, the Court finds that this action, filed on September 25, 2017, is untimely filed.

IV. Equitable Tolling

In his Reply, Petitioner concedes that this action is untimely, but asks the Court to overlook this procedural bar because his failure to meet the one-year deadline was "outside his control." Doc. 27 at 1. "When a prisoner files for habeas corpus relief outside the one-year limitations period, a district court may still entertain the petition if the petitioner establishes that he is entitled to equitable tolling." Damren v. Florida, 776 F.3d 816, 821 (11th Cir. 2015). The United States Supreme Court established a two-prong test for equitable tolling of the one-year limitations period, stating that a petitioner "must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing." Lawrence v. Florida, 549 U.S. 327, 336 (2007); see also Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (noting the Eleventh Circuit "held that an inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence." (citation omitted)). Equitable tolling is an extraordinary remedy that is "typically applied sparingly." Thomas v. Att'y Gen.of Fla., No. 3:03-cv-237-J-32PDB, 2018 WL 733631, at *15 (M.D. Fla. Feb. 6, 2018) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)).

Petitioner contends he is entitled to equitable tolling because Gerald S. Bettman, Esquire, the attorney who represented Petitioner during trial and his direct appeal, did not notify Petitioner that the First DCA issued its opinion affirming his judgment and conviction until after the expiration of his federal one-year limitations period. Doc. 27 at 2. According to Petitioner, while his direct appeal was pending, Mr. Bettman was also representing Petitioner in a dissolution of marriage proceeding, and throughout his representation, Petitioner "inquired about the direct appeal on numerous occasions." Id. He explains that on September 9, 2014, Mr. Bettman advised Petitioner that he would notify Petitioner when the First DCA issued its ruling. Id. Petitioner asserts, however, that when the First DCA rendered its mandate on December 5, 2014, he "was never notified by legal call from Mr. Bettman nor was [Petitioner] sent legal correspondence from Mr. Bettman or the 1st DCA notifying him that his appeal had been denied or that a mandate had been issued." Id. In support of this allegation, Petitioner attaches two prison mail logs from 2014 showing that he only received two correspondences from Mr. Bettman - one dated February 21, 2014, and a second dated August 18, 2014. Doc. 27-1 at 2-3.

According to Petitioner, he finally learned about the First DCA's decision "in late June of 2016," when Mr. Bettman contacted Petitioner regarding other legal matters. Doc. 27 at 2. During that 2016 conversation, Petitioner claims he asked Mr. Bettman about the status of his direct appeal, and "Mr. Bettman informed [Petitioner] that not only had his direct appeal been denied but that it had also been denied over a year [prior]." Id. at 2-3. Petitioner argues it was Mr. Bettman's duty to promptly inform Petitioner about the First DCA's decision and Petitioner "should not be held responsible for Mr. Bettman's incompetence as [Petitioner] had no control over Mr. Bettman['s] actions or his failure to inform [Petitioner] of [the] denial." Id. at 3. According to Petitioner, Mr. Bettman's ineffectiveness "caused [Petitioner] to procedurally default on the AEDPA one year time limit." Id. at 3. He contends that he has "prove[n] diligence in that he inquired multiple times about his appeal and after learning of this denial he promptly filed" his Rule 3.800(a) motion and Rule 3.850 motion. Id. at 5. However, according to Petitioner, due to Mr. Bettman's ineffectiveness, he did not file his postconviction motions in time to toll his federal one-year limitations period. Id.

In consideration of the limited record before the Court, on December 10, 2020, pursuant to Rule 7(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court requested Mr. Bettman to submit an affidavit regarding Petitioner's allegations. See Doc. 28. Mr. Bettman submittedhis affidavit on January 8, 2021, attesting that he does not remember when he first notified Petitioner about the First DCA's decision, but he remembers that he notified Petitioner by telephone. Doc. 29. Mr. Bettman explains that Petitioner directly contacted him by telephone and "inquired about [the] disposition []or the status of his direct appeal...