Johnson v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SAMUEL ELEASER JOHNSON, SR.,

Petitioner,

v. Case No. 3:17-cv-1139-J-32PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Samuel Eleaser Johnson, Sr., an inmate of the Florida penal

system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254

for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. Petitioner

challenges a state court (Flagler County, Florida) judgment of conviction for

which he is serving a combined thirty-five-year term of incarceration. Id. at 1.

Respondents argue that the Petition is untimely filed and request dismissal of

this case with prejudice. See Doc. 7 (Resp.).1 Petitioner filed a Reply. Doc. 10.

This case is ripe for review.

1 Attached to the Response are several exhibits. The Court cites to the

exhibits as “Resp. Ex.”

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 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.

(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 December 16, 2009, a jury found Petitioner guilty of three counts of

trafficking cocaine, one count of conspiracy to traffic cocaine, and one count of

transporting the proceeds of unlawful activity. Resp. Ex. A at 123-27. On

January 19, 2010, the trial court sentenced Petitioner to a cumulative thirty-

five-year term of incarceration followed by a thirty-year term of probation. Id.

at 141-49. Petitioner sought a direct appeal, and on February 14, 2012, the Fifth

District Court of Appeal per curiam affirmed Petitioner’s judgment of conviction

with a citation to Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA 2011).2 Resp. Ex.

I. Petitioner, through appellate counsel, then filed with the Florida Supreme

Court a notice to invoke discretionary jurisdiction arguing that because the

Fifth DCA’s affirmance of his appeal cited Flagg, a case then pending before the

Florida Supreme Court, the Florida Supreme Court had discretionary

2 In Flagg, the First DCA found that section 893.101, Florida Statutes, which

provides that knowledge of the illicit nature of a controlled substance is not an element

of a drug offense, did not convert the offense of felony drug possession into a strict

liability crime. Flagg, 74 So. 3d at 140.

jurisdiction for conflict review pursuant to Jollie v. State, 405 So. 2d 418 (Fla.

1981). Resp. Ex. K.

On November 9, 2012, the Florida Supreme Court declined to accept

jurisdiction:

Having determined that this Court is without

jurisdiction, this case is hereby dismissed. See Harrison

v. Hyster Co., 515 So. 2d 1279 (Fla. 1987); Dodi v.

Publishing Co. v. Editorial American, S.A., 385 So. 2d

1369 (Fla. 1980).

No motion for rehearing will be entertained by

the Court.

Resp. Ex. M. Respondents argue that because the Florida Supreme Court

dismissed Petitioner’s notice to invoke discretionary review, it did not toll

Petitioner’s AEDPA one-year limitations period, and thus, his judgment and

sentence became final ninety days after the Fifth DCA issued its opinion. Resp.

at 5. This Court agrees.

The Florida Supreme Court generally does not have the authority to

review cases where the district court of appeal issues a per curiam affirmance

without a written opinion. See Jenkins v. State, 385 So. 2d 1356, 1359 (Fla.

1980). However, in Jollie, the Florida Supreme Court explained that it may

exercise its discretionary review when the appellate court’s per curiam opinion

contains a citation to a case that is “pending review” before the Florida Supreme

Court. See Jollie, 405 So. 2d at 420. The court then clarified in Harrison that

“‘pending review’ refers to a case in which the petition for jurisdictional review

has been granted and the case is pending disposition on the merits.” Harrison,

515 So. 2d at 1280 (quoting Jollie, 405 So. 2d at 418). If the case cited has not

been accepted for a merits review, the rationale of Jollie does not apply and the

court cannot accept jurisdiction. Id.

Here, the Fifth DCA cited Flagg in its opinion affirming Petitioner’s

judgment of conviction. See Resp. Exs. I, K. However, the Florida Supreme

Court never reviewed Flagg on the merits and declined to accept jurisdiction in

that case on October 23, 2012, a few weeks before it denied Petitioner’s petition

for conflict review. See Flagg v. State, 104 So. 3d 1083 (Fla. 2012). Because

Flagg was not “pending review” under the purviews of Jollie, the Florida

Supreme Court did not have jurisdiction to consider Petitioner’s notice to invoke

discretionary review, and thus, it was not properly filed for purposes of tolling

his federal habeas statute of limitations. See Dickey v. Jones, No. 3:16cv657-

LC/CAS, 2017 WL 2672077, at *1 (N.D. Fla. June 21, 2017) (adopting report

and recommendation to grant the respondents’ motion to dismiss § 2254

petition as untimely because the petitioner’s attempt to invoke the Florida

Supreme Court’s discretionary jurisdiction by citing to Flagg did not toll one-

year federal habeas limitations period); Cotton v. Crews, No.

3:12cv550/MCR/CJK, 2014 WL 84084, at *1 (N.D. Fla. Jan. 9, 2014) (adopting

magistrate judge’s recommendation to dismiss federal habeas petition as

untimely because notice to invoke discretionary jurisdiction that cited to Flagg

was a nullity); William v. McNeil, No. 3:08-cv-596-J-12TEM, 2008 WL 5099694,

at *3 (M.D. Fla. Nov. 26, 2008) (dismissing § 2254 petition as untimely and

noting “the Florida Supreme Court properly determined that it did not have

jurisdiction, as the cited case had not been accepted for review.”).

Therefore, Petitioner’s judgment and sentence became final on May 14,

2012, ninety days after the Fifth DCA issued its opinion. Resp. Ex. I. His one-

year statute of limitations began to run the next day, May 15, 2012, and expired

one year later on May 15, 2013, without Petitioner filing a motion for

postconviction relief that would toll the one-year period.

Over eight months later, on February 5, 2014, Petitioner filed his first

motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Resp. Ex. N at 50. Because there was no time left to toll, however, Petitioner’s

initial Rule 3.850 motion 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) (“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 [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.”). Therefore, the Court finds the Petition, filed on October 17, 2016,

is untimely.

Because the Petition is untimely, to proceed, Petitioner must show he is

entitled to equitable tolling. “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)).

Petitioner makes numerous arguments as to why the Court should

consider his Petition despite its untimely nature. First, he avers that he timely

initiated this action because he filed his initial Rule 3.850 motion on February

5, 2013, and it properly tolled his one-year statute of limitations. Doc. 1 at 22.

However, the prison stamp on Petitioner’s initial Rule 3.850 motion clearly

shows it was filed in February 2014. Resp. Ex. N at 50.

Second, Petitioner argues that he is entitled to equitable tolling because

his appellate attorney misadvised him that his notice to invoke discretionary

jurisdiction tolled his one-year statute of limitations and that his judgment and

sentence was not final until the Florida Supreme Court declined to accept

jurisdiction. Doc. 10 at 6. He also asserts he did not receive notice of the Florida

Supreme Court’s denial until November 19, 2012, when he received a letter

from his appellate attorney. Id. at 5. As explained above, Petitioner’s one-year

limitations period was not tolled by the filing of his notice to invoke

discretionary jurisdiction. Nevertheless, even assuming Petitioner is entitled to

equitable tolling for that period, and assuming his one-year period did not begin

until November 19, 2012, when appellate counsel allegedly notified him of the

Florida Supreme Court’s dismissal, his Petition would still be untimely filed.

Indeed, his one year would have expired on November 19, 2013, and his

February 5, 2014, Rule 3.850 motion would have had no effect on his one-year

period.

Third, Petitioner argues that he is entitled to equitable tolling for an

additional ninety days after the Florida Supreme Court declined to accept

jurisdiction because his appellate attorney did not advise him that he had one

year to file a federal habeas petition once his judgment and sentence became

final. Id. at 6. However, “attorney negligence, even gross or egregious

negligence, does not by itself qualify as an ‘extraordinary circumstance’ for

purposes of equitable tolling; either abandonment of the attorney-client

relationship . . . or some other professional misconduct or some other

extraordinary circumstance is required.” Cadet v. Fla. Dep’t of Corr., 853 F.3d

1216, 1227 (11th Cir. 2017). Here, Petitioner does not allege that his appellate

attorney was retained or responsible for pursuing any proceeding other than

his direct appeal or that she was responsible for informing him of his federal

habeas statute of limitations once his direct appeal was final. He, thus, has not

shown the “extraordinary circumstance” of being abandoned by counsel and in

turn has not demonstrated that his appellate attorney’s alleged failure justifies

equitable tolling of any period after the Florida Supreme Court dismissed his

petition to invoke discretionary jurisdiction and all direct appeal proceedings

were concluded. See, e.g., Moore v. Frazier, 605 F. App’x 863, 868 (11th Cir.

2015) (holding counsel’s alleged negligent failure to inform the petitioner of the

one-year limitations period was not extraordinary circumstance warranting

equitable tolling). To the extent Petitioner argues he could not have known

about his federal deadline without his appellate attorney’s assistance, his

argument is unavailing. “[P]ro se litigants, like all others, are deemed to know

of the one-year statute of limitations.” Id. (quoting Outler v. United States, 485

F.3d 1273, 1282 n.4 (11th Cir. 2007)).

Finally, Petitioner argues he is entitled to equitable tolling from the date

he filed his initial Rule 3.850 motion on February 5, 2014, until he filed his

amended Rule 3.850 motion on March 10, 2014, even though the trial court

dismissed his initial Rule 3.850 motion because it did not comply with the oath

requirement. Doc. 10 at 7. In support of this contention, he avers that when the

trial court dismissed his initial Rule 3.850 motion, it did so without prejudice to

Petitioner filing a sufficient amended motion. Id. As such, according to

Petitioner, his amended Rule 3.850 motion correcting the procedural defect

“related back” to the filing date of his initial Rule 3.850 motion. Id.

Petitioner is correct that “the one-year limitations period [is] tolled the

day a petitioner filed a procedurally noncompliant Rule 3.850 motion if he was

permitted and did later file a compliant motion.” Bates v. Sec’y, Dep’t of Corr.,

964 F.3d 1326, 1328 (11th Cir. 2020). As previously mentioned, however,

Petitioner’s February 5, 2014, Rule 3.850 motion was filed after his one-year

deadline expired. And a “[p]etitioner may not attempt to resurrect a terminated

statute of limitations by subsequently filing documents that purport to ‘relate

back’ to previously submitted documents that were, in themselves, insufficient

to toll the statute” of limitations. Sibley, 377 F.3d at 1204. Accordingly, under

these circumstances, the Court finds Petitioner is not entitled to equitable

tolling.

Petitioner also attempts to overcome the time bar by alleging he is actual

innocent of the trafficking in cocaine offenses. Doc. 10 at 12-13. To avoid the

one-year limitations period based on actual innocence, Petitioner must “present

new reliable evidence that was not presented at trial” and “show that it is more

likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt in light of the new evidence.” Rozzelle v. Sec’y Fla.

Dep’t of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012) (quotations and citations

omitted); see Schlup v. Delo, 513 U.S. 298, 327 (1995) (finding that to make a

showing of actual innocence, a petitioner must show “that it is more likely than

not that no reasonable juror would have found [the p]etitioner guilty beyond a

reasonable doubt”).

Petitioner claims he is innocent of the trafficking in cocaine offenses

because “no cocaine or controlled substance was ever recovered from

Petitioner’s person, nor was Petitioner in constructive possession of any drugs

whatsoever” and “no element of the trafficking offense can be said to have taken

place in Flagler County.” Doc. 10 at 12. A summary of the evidence admitted at

trial is included in Petitioner’s brief on direct appeal. Resp. Ex. D. His three

trafficking convictions stem from a three-county law enforcement investigation

into an extensive drug trafficking operation involving Petitioner. Id. at 2. At

trial, the state presented testimony from a co-defendant, Adams, who explained

that on one occasion he went to Flagler county and paid Petitioner $27,000 in

exchange for a half-kilo of cocaine. Id. at 6. When Petitioner was eventually

arrested in Daytona Beach, Florida, police discovered in his van a “kilo brick

and 500 grams of powder” cocaine. Id. at 5. In his motion for judgment of

acquittal, Petitioner, through counsel, argued the state presented insufficient

evidence to support the trafficking offenses, asserting “[t]here was no seizure of

anything that resembled cocaine.” Resp. Ex. B at 403-08. His motion was

denied, and the jury found him guilty on all counts. Id. at 413, 519-20. Based on

the record, the Court finds Petitioner has failed to present “new reliable

evidence that was not presented at trial” and has failed to satisfy the actual

innocence exception to the time bar. This action is due to be dismissed.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) and this case are DISMISSED with

prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the 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 2nd day of

December, 2020.

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Samuel Eleaser Johnson, Sr., #493847

Bonnie Jean Parrish, Esq.

3 The Court should issue a certificate of appealability only if Petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(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 (2008) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1988)). Here, after consideration of the record as a whole,

the Court will deny a certificate of appealability.

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