# Ratley v. Secretary, Florida Department of Corrections

> District Court, M.D. Florida · November 7, 2019

URL: https://www.frixlaw.com/law-library/cases/10104004

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 7, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104004

## How later opinions describe it (automated extraction)

- stating equitable tolling "is a remedy that must be used sparingly"

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MICHAEL STEVEN RATLEY,

Petitioner,

vs. Case No. 3:17-cv-923-J-39PDB

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,

Respondents.

ORDER
I. INTRODUCTION
Petitioner Michael Steven Ratley initiated this case by
filing a Petition for Writ of Habeas Corpus (Doc. 1). He is
proceeding pro se. Through an Amended Petition for Writ of Habeas
Corpus (Petition) (Doc. 5) pursuant to 28 U.S.C. § 2254, he
challenges his state court (Nassau County) conviction for first
degree murder. He is serving a sentence of life in prison. Id.
at 1. Respondents filed an Answer (Motion to Dismiss) (Response)
(Doc. 21).1 Thereafter, Petitioner filed a Reply Brief (Reply)

1 The Court hereinafter refers to the Exhibits (Doc. 21) as "Ex."
Where provided, the page numbers referenced in this opinion are
the Bates stamp numbers at the bottom of each page of the exhibit.
Otherwise, the page number on the document will be referenced.
(Doc. 23). Under Conclusion/Relief Sought, Petitioner contends
his constitutional rights to a fair trial, due process of law, and
the effective assistance of counsel were violated, and he asserts
he is unconstitutionally incarcerated. Petition at 25.2 He seeks
reversal of the conviction, a new trial with effective counsel,
and an unbiased judge to preside over the new proceeding. Id.
II. EVIDENTIARY HEARING
It is Petitioner’s burden to establish a need for an

evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr.,
647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears
the burden of establishing the need for an evidentiary hearing
with more than speculative and inconcrete claims of need), cert.
denied, 565 U.S. 1120 (2012). The Court finds no need for an
evidentiary hearing as the pertinent facts are fully developed in
this record or the record otherwise precludes habeas relief. The
Court can "adequately assess [Petitioner's] claim[s] without
further factual development," Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).
Therefore, Petitioner is not entitled to an evidentiary hearing.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

2 With respect to the Petition, Response, and Reply, the Court will
refer to the page numbers assigned by the electronic filing system.
2
III. CLAIMS OF PETITION
Petitioner raises five grounds in the Petition: (1) whether
Petitioner’s rights to due process of law and a fair trial were
violated by the trial court’s abuse of discretion when it denied
Petitioner’s motion in limine and later admitted evidence of
Petitioner’s theft of prescription drugs which occurred five weeks
prior to the murder and was made a feature of Petitioner’s trial
by the prosecution; (2) whether Petitioner’s constitutional rights

to due process of law and a fair trial were violated by the trial
court’s abuse of discretion by admitting the state’s DNA chart
into evidence while excluding the defense’s DNA chart; (3) whether
Petitioner’s constitutional rights to the effective assistance of
counsel and his right to a fair trial were violated when, after
having been apprised of statements which indicated that the trial
judge had prejudged the facts and the culpability of Petitioner in
this case, defense counsel failed to move for immediate
disqualification and recusal of that judge – who had presided over
the child custody hearing and was also presiding over Petitioner’s
criminal murder trial; (4) whether Petitioner’s constitutional
rights to the effective assistance of counsel and a fair trial

were violated by trial counsel’s failure to call Rena Kirkland as
a witness at trial; and (5) whether Petitioner’s constitutional
rights to the effective assistance of counsel and a fair trial
3
were violated when trial counsel failed to move the trial court to
replace the bailiff, David King, for Petitioner’s trial and/or
failed to move for a mistrial when the bailiff testified on behalf
of the state. Petition at 5, 9, 11, 14, 17.
IV. TIMELINESS
Respondents assert the Petition is untimely. Response at 1.

Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), there is a one-year period of limitation:
(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 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.

4
(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).
Respondents, in their Response, contend Petitioner has
failed to comply with the limitation period described above. To
properly address this contention, the Court provides an
abbreviated procedural history. After judgment and conviction,
Petitioner appealed. Ex. O; Ex. P; Ex. Q. His retained counsel,
William Mallory Kent raised three issues.3 Ex. O at i. The First
District Court of Appeal (1st DCA), on August 9, 2010, per curiam
affirmed. Ex. R. The mandate issued on August 25, 2010. Id.
On Tuesday, January 18, 2011, the United States Supreme Court
denied a petition for a writ of certiorari, rendering the
conviction final.4 Ex. S. The limitation period began running
the following day, Wednesday, January 19, 2011. Mr. Kent, on
November 9, 2011, remitted the $5,000.00 to Petitioner’s family

3 Petitioner’s family paid Mr. Kent $25,000.00, a flat rate appeal
fee. Petitioner’s Exhibit I (Doc. 23-2).

4 Petitioner’s family paid Mr. Kent $5,000.00, a flat rate fee for
a certiorari petition and a Rule 3.850 motion. Petitioner’s
Exhibit J (Doc. 23-3).

5
and told them to seek other counsel.5 Ex. K. On November 9, 2011,
seventy days remained in the one-year limitation period.
Although no documentation is provided with respect to the
exact date of the hiring of attorney James T. Miller, the record
shows Petitioner’s parents hired Mr. Miller on or before January
11, 2012, as he filed a Motion to Correct Illegal Sentence on

January 11, 2012, tolling the limitation period (seven days
remained in the limitation period when Mr. Miller filed the Rule
3.800(a) motion). Ex. T a 1-3. The trial court denied the motion
January 13, 2012. Id. at 4. Petitioner, through counsel,
appealed. Id. at 5. The 1st DCA affirmed per curiam on August
6, 2012. Ex. U. Petitioner moved for rehearing, and the 1st DCA
denied rehearing on September 20, 2012. Id. The mandate issued
Tuesday, October 9, 2012. Id. The one-year limitation period
expired on Tuesday, October 16, 2012.

5 Apparently after Petitioner wrote Mr. Kent a letter complaining
about Mr. Kent’s representation, Mr. Kent elected to return the
money for filing a Rule 3.850 motion on Petitioner’s behalf.
Petitioner’s Exhibit H (Doc. 23-1). In the Petition, Petitioner
states that when his parents pressed Mr. Kent about filing the
motion for which he had been retained, Mr. Kent told Petitioner’s
parents he would refund the money and they could find another
lawyer. Petition at 23.

6
Mr. Miller filed a timely Rule 3.850 motion on January 16,
2013.6 Ex. V at 1-25. See Ex. X at 2. Mr. Miller passed away.7
The trial court appointed the Public Defender to represent
Petitioner, and Chris A. Clayton, an Assistant Public Defender,
represented Petitioner in the post-conviction proceeding. Ex. V
at 30-33. The trial court denied the motion. Id. at 28, 34-35.

Petitioner filed an appeal brief pro se. Ex. W. The 1st DCA, on
October 16, 2014, affirmed grounds two to four, but reversed and
remanded for an evidentiary hearing on ground one. Ex. X.
On November 4, 2014, Mr. Clyde M. Taylor, private counsel,
filed a notice of appearance in the trial court. Ex. V at 37. He
filed a Motion to Disqualify Judge, id. at 38-42, which the trial
court granted. Id. at 43. After an evidentiary hearing, the
trial court denied the remaining ground of the post-conviction
motion. Id. at 44-54. Through his counsel, Petitioner appealed.
Ex. Y; Ex. Z. The 1st DCA, on October 10, 2016, affirmed per
curiam. Ex. AA at 1. Petitioner filed a pro se motion for

rehearing. Id. at 2-8. The 1st DCA denied rehearing. Id. at 9.
The mandate issued November 29, 2016. Id. at 11.

6 Florida law provides, with limited exceptions, that a defendant
must file his motion for post-conviction relief in a non-capital
case within two years of the date on which the judgment and
sentence became final. Rule 3.850(b), Fla. R. Crim. P.

7 The date of Mr. Miller’s death is not provided in the record.

7
Based on the history outlined above, the federal petition
filed in 2017 is untimely and due to be dismissed unless Petitioner
can establish that equitable tolling of the statute of limitations
is warranted. Petitioner asserts he is entitled to equitable
tolling of the limitation period. Petition at 23-24. He alleges
Mr. Kent’s conduct was egregious because he abandoned Petitioner

after being retained and trusted to timely file a Rule 3.850
motion. Id. at 24-25. Petitioner complains Mr. Kent wasted all
but seven days of the one-year period. Id. at 25. Further,
Petitioner contends he exercised due diligence by trying to
determine the status of the appeal of the denial of the Rule 3.850
motion and through his attempts to obtain the documents necessary
to timely file his federal petition upon the conclusion of the
appeal of the denial of the Rule 3.850 motion. Id.
Legal precedent demonstrates the AEDPA one-year limitation
period is subject to equitable tolling. Holland v. Florida, 560
U.S. 631, 651-52 (2010). The two-pronged test for equitable

tolling requires a petitioner to demonstrate "(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way and prevented timely filing."
Holland, 560 U.S. at 649 (quotation marks omitted); see Downs v.
McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (stating equitable
tolling "is a remedy that must be used sparingly"); see also Brown

8
v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (per curiam)
(noting the Eleventh Circuit "has held that an inmate bears a
strong burden to show specific facts to support his claim of
extraordinary circumstances and due diligence") (citation
omitted).
Clearly, Petitioner bears the burden to show extraordinary

circumstances that are both beyond his control and unavoidable
with diligence, and this high hurdle is not easily surmounted.
Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005), cert. denied,
546 U.S. 1108 (2006); Wade v. Battle, 379 F.3d 1254, 1265 (11th
Cir. 2004) (per curiam) (citations omitted). It is a petitioner's
burden of persuasion, and this Petitioner has not met the strong
burden. See Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198,
1209 (11th Cir. 2014), cert. denied, 135 S. Ct. 1171 (2015).
Initially, the Court notes Petitioner’s family hired Mr. Kent
to file a certiorari petition and a Rule 3.850 motion, as reflected
in the September 10, 2010 invoice.8 Petitioner’s Exhibit J (Doc.

23-3). No mention is made of hiring Mr. Kent to file a federal
petition for writ of habeas corpus. Also, the record does not
establish there was any modification of the agreement or an

8 The record for review is limited in this regard, but it is
Petitioner’s burden, and the Court will proceed with its
determination based on the record before it.

9
additional agreement for representation in federal court. The
record demonstrates Mr. Kent returned the $5,000.00 payment and
advised Petitioner’s family to proceed with a different attorney.
The record shows seventy days remained in the one-year federal
limitation period at the time Mr. Kent returned the money to
Petitioner’s family.

Furthermore, the record demonstrates there was more than
enough time to file a Rule 3.850 motion within the two-year period
for filing. See Rule 3.850 (b). Saavedra v. State, 59 So.3d 191,
192 (Fla. 3d DCA 2011) (“The two-year time limitation for filing
motions for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850 does not begin to run until appellate
proceedings have conclude and the court issues a mandate or thirty
days after the judgment and sentence become final if no direct
appeal is filed.”). The Supreme Court denied the petition for
writ of certiorari on January 18, 2011. Thus, Mr. Miller’s January
16, 2013 filing of the Rule 3.850 motion is within the two-year

period. The record not only demonstrates the timely filing of the
Rule 3.850 motion, but a merit-based ruling by the trial court.
Petitioner has not shown that he, or his family, hired Mr.
Kent, Mr. Miller, or any other attorney to file a federal petition
for writ of habeas corpus. The family hired Mr. Kent to file a
Rule 3.850 motion, Mr. Kent returned the money to Petitioner’s

10
family, and Petitioner’s family hired Mr. Miller to file the Rule
3.850 motion. The record demonstrates Mr. Miller followed through
with his obligation to file a timely Rule 3.850 motion.9
Petitioner has not shown that he pursued his rights with
reasonable diligence. For instance, Petitioner has not shown that
he diligently inquired of Mr. Kent or Mr. Miller the effect that

a later filing would have on a federal habeas petition. Etterer
v. Boyd, No. 3:14cv1139-WKW-SRW, 2017 WL 9512457, at *3 (M.D. Ala.
Feb. 3, 2017), report and recommendation adopted by 2017 WL 1383462
(M.D. Ala. Apr. 12, 2017). The mere hiring of a post-conviction
attorney is simply not enough. Id. (citation omitted).
Upon review, there is no evidence of conduct amounting to
abandonment in this case. Mr. Kent entered into an agreement to
file a Rule 3.850 motion, but he returned the funds which allowed
Petitioner’s family to obtain alternative counsel. Petitioner’s

9 Petitioner's Rule 3.850 motion, filed January 16, 2013, did not
toll the federal one-year limitation period because it had already
expired on October 16, 2012. See Webster v. Moore, 199 F.3d 1256,
1259 (11th Cir.) (per curiam), cert. denied, 531 U.S. 991 (2000)
("Under ' 2244(d)(2), even 'properly filed' state court petitions
must be 'pending' in order to toll the limitations period. A
state court petition like [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."). Indeed,
"once a deadline has expired, there is nothing left to toll. A
state court filing after the federal habeas filing deadline does
not revive it." Sibley v. Culliver, 377 F.3d 1196, 1204 (11th
Cir. 2004).

11
family hired Mr. Miller. Thereafter, Mr. Miller apparently agreed
to file a Rule 3.850 motion, and he timely did so. Finally, even
if gross negligence qualifies as an extraordinary circumstance,
Petitioner has not shown gross negligence on the part of his
attorneys. Rutland v. Williams, No. 5:16-CV-182, 2017 WL 2615745,
at *1 n.1 (M.D. Ga. June 16, 2017).

Of import, Petitioner has not established that he pursued his
federal rights diligently. As such, Petitioner's equitable
tolling argument fails on the first prong of Holland. Petitioner
has presented no evidence that he wrote Mr. Miller and told him of
the importance of the filing of a federal habeas petition in a
timely fashion. Counsel's simple unawareness of the federal
filing deadline does not constitute an extraordinary circumstance.
In this case, Petitioner’s family hired counsel to file a Rule
3.850 motion, and counsel were focused on the two-year period to
file a Rule 3.850 motion under Florida law. See Fino v. United
States, No. 15-CR-60304-BLOOM, 2018 WL 5885545, at *4 (S.D. Fla.

July 24, 2018) (noting, "apparent unawareness of the [federal]
filing deadline date suggested simple negligence"), report and
recommendation adopted in part by 2018 WL 4214369 (S.D. Fla. Sept.
5, 2018) (adopted, except with respect to the starting date used
by the magistrate judge in calculating the applicable one-year

12
statute of limitation, which did not alter the ultimate conclusion
of the court).
Petitioner has failed to show Mr. Kent or Mr. Miller engaged
in any serious attorney misconduct qualifying as an extraordinary
circumstance; Petitioner has not shown bad faith, dishonesty,
divided loyalty or mental impairment on the part of his counsel.

Cadet, 853 F.3d at 1236. Indeed, Mr. Miller timely filed the Rule
3.850 motion and the trial court ruled on the merits of the motion.
Finally, the record "does not suggest abandonment or any other
form of serious misconduct rising to the level of an 'extraordinary
circumstance.'" Robinson v. Jones, No. 1:17cv198-MW-CJK, 2018 WL
6920351, at *4 (N.D. Fla. Nov. 6, 2018), report and recommendation
adopted by 2019 WL 77508 (N.D. Fla. Jan. 2, 2019), appeal filed by
Robinson v. State Attorney for Fla., No. 19-10428 (11th Cir. Feb.
1, 2019).
Based on the record before the Court, Petitioner has not
presented any justifiable reason why the dictates of the one-year

limitation period should not be imposed upon him. The Court finds
Petitioner has not shown he is entitled to extraordinary relief.
Equitable tolling is a remedy that should be used sparingly, and
Petitioner has failed to show he exercised due diligence.10

10 Petitioner’s contention that he exercised due diligence by
trying to determine the status of the appeal of the denial of the

13
Petitioner has failed to show an extraordinary circumstance, and
he has not met the burden of showing that equitable tolling is
warranted. After due consideration, the Court finds he has failed
to demonstrate he is entitled to equitable tolling. Therefore,
the Court will dismiss the case with prejudice pursuant to 28
U.S.C. § 2244(d).

Petitioner does not claim actual innocence in the Petition,
nor has he demonstrated that he has new evidence establishing
actual innocence. 11 “Assuming without deciding, that a

Rule 3.850 motion and through his attempts to obtain documents
from Mr. Taylor to timely file his federal petition is unavailing.
Petition at 24. Petitioner’s efforts to obtain information and
documents in 2016 and 2017 do not satisfy the requirement that he
pursued his rights diligently. The one-year limitation period
expired long before the filing of the Rule 3.850 motion in 2013.

11 In his Reply, Petitioner simply states that “[t]his case is
entirely circumstantial with substantial evidence supporting
Petitioner’s actual innocence.” Reply at 1. To invoke the
fundamental miscarriage of justice exception, a petitioner must
present new evidence that was not available at the time of trial,
and it must be “new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence-that was not presented at trial.” Schlup v.
Delo, 513 U.S. 298, 324 (1985). Petitioner has not attempted to
make a credible showing of actual innocence with new evidence that
was not available at the time of his trial. See McQuiggin v.
Perkins, 569 U.S. 383, 392-93 (2013). Notably, the McQuiggin
exception is applicable only if a petitioner presents evidence of
innocence so strong it convinces the court that “no reasonable
juror would vote to find him guilty.” Creel v. Daniels, No. 5-
16-cv-00803-LSC-JEO, 2018 WL 2187797, at *4 (N.D. Ala. April 12,
2018), report and recommendation adopted by 2018 WL 2184543 (N.D.
Ala. May 11, 2018). As Petitioner has failed to come forward with
any new reliable evidence of innocence, he has not met the

14
petitioner’s actual innocence might support equitable tolling of
the limitation period, notwithstanding, petitioner has failed to
make a substantial showing of actual innocence.” Rodriguez v.
United States, No. 03-CR-20759-COOKE, 2017 WL 8233889, at *7 (S.D.
Fla. March 16, 2017), report and recommendation adopted by 2018 WL
1367443 (S.D. Fla. Mar. 16, 2018), appeal filed by No. 18-12090

(11th Cir. May 16, 2018).
Based on the record before the Court, Petitioner has not
presented any justifiable reason why the dictates of the one-year
imitation period should not be imposed upon him. He has failed
to demonstrate he is entitled to equitable tolling. He does not
claim actual innocence in the Petition and he has not made a
credible showing of actual innocence by failing to offer new
evidence that is directly probative of his innocence. Therefore,
this Court will dismiss the Petition and the case with prejudice
pursuant to 28 U.S.C. ' 2244(d).
Accordingly, it is now

ORDERED AND ADJUDGED:
1. The Amended Petition for Writ of Habeas Corpus (Doc. 5)
and the case are DISMISSED with prejudice.

difficult standard set forth in Schlup and its progeny.

15
2. The Clerk shall enter judgment dismissing the Amended
Petition with prejudice and dismissing the case with prejudice.
3. The Clerk shall close the case.
4, If Petitioner appeals the dismissal of the Amended
Petition for Writ of Habeas Corpus (Doc. 5), the Court denies a
certificate of appealability.!* Because this Court has determined
that a certificate of appealability is not warranted, the Clerk
shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case.
Such termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of
November, 2019.

4 7? De
af J. DAVIS
United States District Judge

12 This Court should issue a certificate of appealability only if
a petitioner makes "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253 (2). To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were ‘adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)). Upon due consideration, this Court will
deny a certificate of appealability.

16

sa 11/7
c:
Michael Steven Ratley
Counsel of Record

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104004. Public record. Not legal advice.