“[28 U.S.C] § 2244(d) is subject to equitable tolling in 4 to appeal in forma pauperis. ORDERED in Tampa, Florida, on September 14, 2020. WILLIAM F. UNITED STATES DISTRICT JUDGE SA: sfc Copies to: Antwaun Brown, pro se Counsel of Record appropriate cases.”’
How later courts described this case
- “[28 U.S.C] § 2244(d) is subject to equitable tolling in 4 to appeal in forma pauperis. ORDERED in Tampa, Florida, on September 14, 2020. WILLIAM F. UNITED STATES DISTRICT JUDGE SA: sfc Copies to: Antwaun Brown, pro se Counsel of Record appropriate cases.”’
- dismissal of habeas petition as time barred is procedural
- actual innocence can overcome the statute of limitations in AEDPA
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANTWAUN BROWN,
Petitioner,
v. Case No. 8:20-cv-890-T-02SPF
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________/
ORDER
Mr. Brown, a Florida inmate, filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (Doc. 1). Respondent moves to dismiss the petition as time-barred (Doc. 7).
Although afforded the opportunity, Mr. Brown failed to respond to the motion. Upon
consideration, the motion to dismiss will be granted.
Procedural Background
On February 23, 2015, Mr. Brown pleaded no contest to three counts of sexual battery
(Respondent’s Ex. 7). He was sentenced to 15 years in prison (Respondent’s Ex. 8). His
convictions and sentences were affirmed on appeal on February 3, 2017 (Respondent’s Ex. 14).
On May 12, 2017, Mr. Brown filed a Motion for Post-Conviction Relief under Rule.
3.850, Florida Rules of Criminal Procedure (Respondent’s Ex. 16). After the motion was stricken
(Respondent’s Ex. 18), Mr. Brown filed an amended Rule 3.850 motion (Respondent’s Ex. 21).
The amended motion was denied on January 16, 2018 (Respondent’s Ex. 22). The denial of the
motion was affirmed on appeal (Respondent’s Ex. 26), and the appellate court mandate issued on
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October 5, 2018 (Respondent’s Ex. 27).
On December 17, 2018, Mr. Brown filed a second Rule 3.850 motion (Respondent’s Ex.
31). That Rule 3.850 motion was denied on April 4, 2019 (Respondent’s Ex. 33). Mr. Brown did
not appeal the denial of the second Rule 3.850 motion. He filed his federal habeas petition on
April 22, 2020 (Doc. 1).
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a
one-year statute of limitations in which a state prisoner may file a federal habeas petition. 28
U.S.C. § 2244(d)(1). Lawrence v. Florida, 549 U.S. 327, 331 (2007). The limitations 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). Additionally,
“[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 shall not be counted toward
any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondent moves to
dismiss the amended petition as time-barred under § 2244(d), arguing that more than one year
passed after Mr. Brown’s judgment became final.
Because Mr. Brown’s convictions were affirmed on appeal on February 3, 2017, his
judgment became final 90 days later, on May 4, 2017, when the time for filing a petition for writ
of certiorari in the Supreme Court of the United States expired. See Sup.Ct. R. 13(3) (“[t]he time
to file a petition for. . .writ of certiorari runs from the date of entry of the judgment or order
sought to be reviewed, and not from the issuance date of the mandate. . . .”); Chavers v. Sec’y,
Fla. Dep’t of Corr., 468 F.3d 1273, 1274–75 (11th Cir.2006) (stating the 90–day period begins
2
to run from the date of entry of judgment and not the issuance of the mandate). Mr. Brown
therefore had until May 4, 2018, in which to file a timely federal habeas petition under § 2254.
His initial federal habeas petition was filed on April 22, 2020, nearly two years after his
convictions became final. Accordingly, unless the limitations period was tolled for a sufficient
period of time by properly filed state court post-conviction applications, his petition is untimely.
After seven days of the AEDPA’s limitations period expired, Mr. Brown’s Rule 3.850
state post-conviction motion, filed on May 12, 2017, tolled the AEDPA’s limitations period
through October 5, 2018, when the appellate court issued its mandate affirming the denial of the
Rule 3.850 motion. See Bismark v. Sec’y, Dep’t of Corr., 171 F. App’x 278, 280 (11th Cir.
2006). Another seventy-three days of the AEDPA’s limitations period elapsed before Mr. Brown
filed his second Rule 3.850 motion on December 17, 2018. That motion, however, did not toll
the limitations period because it was not properly filed since the state post-conviction court
denied the motion, among other reasons, “for [Mr. Brown’s] failure to include the certification
required under Rule 3.850(n)(2)[.]” (Respondent’s Ex. 33, p. 3). See Downing v. Florida, 2017
U.S. Dist. LEXIS 181143, at *10 (N.D. Fla. Sep. 20, 2017) (Rule 3.850 motion dismissed for
failing to meet certification requirements of Rule 3.850(n)(2) was not “properly filed” and
therefore did not toll the AEDPA’s limitations period). Therefore, the limitations period elapsed
on September 30, 2019.1
Mr. Brown has not alleged or established that any equitable tolling of the limitations
period is warranted; nor has he alleged or shown that he can prove actual innocence in order to
1 Respondent correctly argues that even if the second Rule 3.850 motion had tolled the AEDPA’s limitations
period, the limitations period would have elapsed on February 17, 2020, before Mr. Brown filed his federal habeas
petition in April 2020 (see Doc. 7, p. 4).
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overcome the time bar.2 Accordingly, Mr. Brown’s federal habeas petition is time-barred.
Respondent’s construed motion to dismiss (Doc. 7) is therefore GRANTED. Mr.
Brown’s petition for a writ of habeas corpus (Doc. 1) is DISMISSED as time-barred. The Clerk
shall enter judgment against Mr. Brown and close this case.
Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal
Denied
A petitioner does not have absolute entitlement to appeal the denial of his habeas
petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability. Id. A certificate of appealability will issue only if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Generally, a
petitioner must demonstrate that reasonable jurists would find this court’s assessment of the
constitutional claims debatable or wrong. Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quotation omitted), 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)).
Where, as here, claims have been rejected on procedural grounds, the petitioner must
show that “jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.; Webster v. Moore, 199 F.3d 1256, 1257 n.
2 (11th Cir. 2000) (dismissal of habeas petition as time barred is procedural). Mr. Brown cannot
make that showing. And since he is not entitled to a certificate of appealability, he is not entitled
2 See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (actual innocence can overcome the statute of limitations in
AEDPA); Holland v. Florida, 560 U.S. 631, 645 (2010) (“[28 U.S.C] § 2244(d) is subject to equitable tolling in
4
to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 14, 2020.
WILLIAM F.
UNITED STATES DISTRICT JUDGE
SA: sfc
Copies to:
Antwaun Brown, pro se
Counsel of Record
appropriate cases.”’).