Mendoza v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARIO MENDOZA,

Petitioner,

v. Case No. 8:17-cv-2044-T-35JSS

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________/

O R D E R

This cause is before the Court on Petitioner Mario Mendoza’s pro se petition for

the writ of habeas corpus, filed under 28 U.S.C. § 2254. (Doc. 1) Upon consideration of

the petition, the response opposing the petition as time-barred (Doc. 8), and Mendoza’s

reply (Doc. 10), and in accordance with the Rules Governing Section 2254 Cases in the

United States District Courts, it is ORDERED that the petition is DISMISSED AS TIME-

BARRED:

PROCEDURAL HISTORY

Mendoza was convicted after a jury trial of attempted second-degree murder with

a weapon and shooting at or throwing a deadly missile at, within or into a building or

vehicle. (Doc. 9-2 Ex. 5) The state trial court sentenced Mendoza to 20 years in prison.

(Doc. 9-2 Ex. 6) The state appellate court per curiam affirmed the convictions and

sentences. (Doc. 9-2 Ex. 11) The state appellate court struck Mendoza’s motion for

clarification as untimely. (Doc. 9-2 Exs. 13, 14) Mendoza filed a motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850. (Doc. 9-2 Ex.15) The state court

denied relief. (Doc. 9-2 Ex. 16) The state appellate court per curiam affirmed the order of

denial. (Doc. 9-2 Ex 22)

When Mendoza filed his federal habeas petition, the Court directed him to show

cause why the petition should not be dismissed as time barred. (Doc. 5) Although

Mendoza did not respond to the Court’s Order, the Court subsequently directed

Respondent to respond to the petition. (Doc. 6)

UNTIMELINESS OF FEDERAL HABEAS PETITION

I. AEDPA Statue of Limitations

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Mendoza’s

petition is subject to a one-year statute of limitations set out in 28 U.S.C. § 2244(d). This

period runs from “the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

However, the period is tolled for “[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[.]” 28 U.S.C. § 2244(d)(2).

The state appellate court affirmed the convictions and sentences on November 5,

2014. (Doc. 9-2 Ex. 11) Accordingly, Mendoza’s judgment became final on February 3,

2015, upon expiration of the 90-day period to petition the United States Supreme Court

for the writ of certiorari. See Bond v. Moore, 309 F.3d 770 (11th Cir. 2002); Jackson v.

Sec’y, Dep’t of Corr., 292 F.3d 1347 (11th Cir. 2002). Therefore, Mendoza had until

February 3, 2016, absent any tolling, to file his federal habeas petition.

Mendoza did not submit any properly filed tolling applications challenging his

conviction prior to the expiration of the one-year AEDPA limitations period.1 It was not

until after the expiration of the limitations period, on March 1, 2016, that Mendoza

constructively filed his Rule 3.850 motion by giving it to prison officials for mailing. (Doc.

9-2 Ex. 15) Mendoza’s Rule 3.850 motion could not have had any tolling effect and did

not revive the expired limitation period. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th

Cir. 2001) (“[A] state court petition . . . that is filed following the expiration of the federal

limitations period ‘cannot toll that period because there is no period remaining to be

tolled.’” (quoting Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000))). Accordingly,

Mendoza’s federal habeas petition, filed August 24, 2017, 568 days after his AEDPA

limitations period expired, is untimely under § 2244(d)(1)(A).

II. Equitable Tolling

Acknowledging that his petition is untimely, Mendoza asserts entitlement to

equitable tolling. AEDPA’s one-year limitations period “is subject to equitable tolling in

appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner can only

obtain equitable tolling 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.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). As this is a

1 Mendoza’s motion for clarification, filed on March 30, 2015, after his judgment became final, does not

affect the timeliness calculation. Because the state court struck the motion for clarification as untimely,

(Doc. 9-2 Ex. 14), it was not a “properly filed” tolling application. See Jones v. Sec’y, Dep’t of Corr., 906

F.3d 1339, 1350 (11th Cir. 2018) (noting that when a state court rules that a motion is untimely, “[t]hat

necessarily means that the motion wasn’t ‘properly filed,’ and thus it didn’t toll AEDPA’s one-year statute of

limitations.”).

“difficult burden” to meet, the Eleventh Circuit “has rejected most claims for equitable

tolling.” Diaz v. Sec’y for Dep’t of Corr., 362 F.3d 698, 701 (11th Cir. 2004); see also

Johnson v. United States, 340 F.3d 1219, 1226 (11th Cir. 2003) (“[E]quitable tolling

applies only in truly extraordinary circumstances.”); Steed v. Head, 219 F.3d 1298, 1300

(11th Cir. 2000) (“Equitable tolling is an extraordinary remedy which is typically applied

sparingly.”). A petitioner must show a “causal connection between the alleged

extraordinary circumstances and the late filing of the petition.” San Martin v. McNeil, 633

F.3d 1257, 1267 (11th Cir. 2011) (citing Lawrence v. Florida, 421 F.3d 1221, 1226-27

(11th Cir. 2005)).

The applicability of equitable tolling depends on a case’s particular facts and

circumstances. See Holland, 560 U.S. at 649-50 (equitable tolling decisions are made on

a case-by-case basis); Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002) (in

assessing equitable tolling, “[e]ach case turns on its own facts.”). Mendoza carries the

burden of establishing that equitable tolling is warranted. See San Martin, 633 F.3d at

1268 (“The burden of proving circumstances that justify the application of the equitable

tolling doctrine rests squarely on the petitioner. . . . Mere conclusory allegations are

insufficient to raise the issue of equitable tolling.”); Cole v. Warden, Ga. State Prison, 768

F.3d 1150, 1158 (11th Cir. 2014) (“The petitioner has the burden of establishing his

entitlement to equitable tolling; his supporting allegations must be specific and not

conclusory.”).

A. Extraordinary Circumstances

In his federal habeas petition, Mendoza states that his place of confinement was

“on a level three lock down.” (Doc. 1 at 15 n.1) Accordingly, Mendoza claims he “was

unable to gain access [to] the Law Library to complete [th]is Petition until now[.]” (Doc. 1

at 15 n.1) Mendoza does not identify the date when the lockdown was imposed, but in his

reply, Mendoza contends that the lockdown started “[w]hen the deadline to toll the AEDPA

by filing the 3.850 motion closed in” and that the lockdown existed “up through the AEDPA

deadline[.]” (Doc. 10 at 2) During the lockdown, he claims, the law library was closed and

the prison law clerks kept his paperwork. Mendoza thus claims that because of the

lockdown, he was unable to file his Rule 3.850 motion in time to toll the AEDPA limitations

period. He also contends that he filed his Rule 3.850 motion in state court when the

lockdown was lifted, shortly after the AEDPA deadline passed.2 Mendoza therefore

claims that this supports his assertion that “the lockdown itself is what impeded

Petitioner’s diligent effort to toll the AEDPA time period.” (Doc. 10 at 2)

Mendoza’s allegations concerning the lockdown and resulting lack of access to the

prison law library and separation from his legal paperwork do not establish extraordinary

circumstances. As the Court noted in its earlier Order (Doc. 5), equitable tolling is not

warranted because of a deficient prison law library or because of limited or restricted

access to a law library. See Helton v. Sec’y, Dep’t of Corr., 259 F.3d 1310, 1313-14 (11th

Cir. 2001); Miller v. Florida, 307 F. App’x 366, 367-68 (11th Cir. 2009).3 Further, prison

lockdowns and separation from legal papers do not constitute extraordinary

circumstances. See Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir. 2004) (stating

that “lockdowns and periods in which a prisoner is separated from his legal papers are

2 The AEDPA deadline was February 3, 2016. Mendoza filed his Rule 3.850 motion on March 1, 2016.

3 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive

authority.” 11th Cir. Rule 36-2.

not ‘extraordinary circumstances’ in which equitable tolling is appropriate.” (citing Akins

v. United States, 204 F.3d 1086, 1089-90 (11th Cir. 2000))); Miller, 307 F. App’x at 367-

68 (stating that lockdowns do not qualify as extraordinary circumstances warranting

equitable tolling); Paulcin v. McDonough, 259 F. App’x 211, 213 (11th Cir. 2007)

(“Paulcin’s transfer to county jail and denial of access to his legal papers and the law

library did not constitute extraordinary circumstances.”). Similarly, a petitioner’s pro se

status does not constitute an extraordinary circumstance. See Rich v. Dep’t of Corr., Fla.,

317 F. App’x 881, 883 (11th Cir. 2008) (stating that pro se status is not an extraordinary

circumstance warranting equitable tolling); Wakefield v. Railroad Retirement Bd., 131

F.3d 967, 969 (11th Cir. 1997) (“Ignorance of the law usually is not a factor that can

warrant equitable tolling.”). Accordingly, Mendoza does not show that the prison lockdown

and resulting separation from his legal papers and lack of access to the law library

amounted to an extraordinary circumstance warranting equitable tolling.4

In his reply, Mendoza also states that because he “hardly speaks any English,” he

has had to rely on an inmate Spanish translator to assist him throughout his legal

proceedings. (Doc. 10 at 1) The Eleventh Circuit has rejected the argument that a

petitioner’s “difficulties with the English language” support equitable tolling. United States

v. Montano, 398 F.3d 1276, 1280 n.5 (11th Cir. 2005); see also Zamudio v. Haskins, 775

F. App’x 614, 617 (11th Cir. 2019) (stating that “a party’s inability to read or speak English

is insufficient grounds to justify equitable tolling.”); DeLeon v. Fla. Dep’t of Corr., 470 F.

4 As addressed, Mendoza does not allege when the lockdown started. He only states that the lockdown

was implemented when the AEDPA deadline “closed in,” while conceding that “some time” had passed

before the lockdown. (Doc. 10 at 2) The Court would note that, based on these representations, it appears

a significant passage of time may have occurred prior to the lockdown. Mendoza does not allege the

existence of any extraordinary circumstances prior to the lockdown. Nor does he explain why he waited to

attempt to cure the AEDPA deadline lapse immediately upon the lifting of the “lockdown” rather than waiting

until there was an unsuccessful resolution of his 3.850 petition.

App’x 732, 734 (11th Cir. 2012) (“An inability to understand English does not constitute

extraordinary circumstances justifying equitable tolling. . . . The lack of a legal education,

the absence of legal counsel in this collateral context, and the resulting consequence of

reliance upon a bilingual inmate law clerk also do not excuse a failure to file a § 2254

petition in a timely fashion.”). Accordingly, Mendoza fails to establish an “extraordinary

circumstance” that justifies the application of equitable tolling.

B. Diligence

Mendoza has not demonstrated that he diligently pursued the timely filing of his

federal habeas petition to justify the application of equitable tolling. To pursue his rights

diligently, a petitioner is required to exercise “reasonable diligence,” not “maximum

feasible diligence.” Holland, 560 U.S. at 653; see also Smith v. Comm’r, Ala. Dep’t of

Corr., 703 F.3d 1266, 1271 (11th Cir. 2012) (the Eleventh Circuit “has noted that ‘due

diligence . . . does not require a prisoner . . . to exhaust every imaginable option, but

rather to make reasonable efforts.’” (quoting Aron v. United States, 291 F.3d 708, 712

(11th Cir. 2002))).

As addressed, a petitioner bears the burden of showing entitlement to equitable

tolling by presenting specific factual allegations. Although Mendoza makes a vague claim

that he undertook a “diligent effort” to ensure timely filing (Doc. 10 at 2), he does not

identify what reasonable efforts he made to ensure the timely filing of his § 2254 petition.

For instance, while Mendoza claims that the lockdown caused a delay in his ability to

prepare court filings, he does not explain why he did not file the § 2254 petition

immediately after the end of the lockdown and request that the petition be stayed pending

the outcome of his state proceedings. Mendoza does not state why he instead waited 568

days after the expiration of the AEDPA limitations period to file his § 2254 petition.

Mendoza has not shown that he exercised diligence in pursuing the timely filing his federal

habeas petition as he must to demonstrate entitlement to equitable tolling.

Accordingly, it is ORDERED that Mendoza’s petition (Doc. 1) is DISMISSED AS

TIME-BARRED. The CLERK is directed to enter a judgment against Mendoza and to

CLOSE this case.

CERTIFICATE OF APPEALABILITY

AND

LEAVE TO APPEAL IN FORMA PAUPERIS

IT IS FURTHER ORDERED that Mendoza is not entitled to a certificate of

appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to

appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a court must

first issue a certificate of appealability. Section 2253(c)(2) limits the issuing of a certificate

of appealability “only if the applicant has made a substantial showing of the denial of a

constitutional right.” To merit a certificate of appealability, Mendoza must show that

reasonable jurists would find debatable both (1) the merits of the underlying claims and

(2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir.

2001). Because the petition is clearly time-barred and he fails to show that reasonable

jurists would debate timeliness, Mendoza is not entitled to a certificate of appealability

and he is not entitled to appeal in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Mendoza must obtain permission from the circuit court to appeal in

forma pauperis.

DONE AND ORDERED in Tampa, Florida, on this 29th day of May, 2020.

hg , A f f)

MARYS. SCRIVEN

UNITED STATES DISTRICT JUDGE