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”
How later courts described this case
- 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”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DUSTY SIMMONDS,
Petitioner,
v. Case No. 3:17-cv-1143-J-32JRK
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner, Dusty Simmonds, 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 (Duval County, Florida) judgment of conviction for which she is
serving a thirty-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. 10 (Resp.).1 Petitioner declined to file a reply. Doc. 12. 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 August 11, 2005, a jury found Petitioner guilty of first degree arson.2
Resp. Ex. B at 220. On September 8, 2005, the trial court adjudicated her as a
habitual felony offender and sentenced her to a thirty-year term of
incarceration. Id. at 240. On December 20, 2006, the First District Court of
Appeal per curiam affirmed Petitioner’s judgment of conviction without a
written opinion. Resp. Ex. J. Her judgment and sentence became final ninety
days later on March 20, 2007. Her federal one-year statute of limitations began
to run the next day, March 21, 2007.
Petitioner’s one-year period ran for 121 days, until it was tolled on July
20, 2007, when she filed her first motion for postconviction relief under Florida
Rule of Criminal Procedure 3.850. Resp. Ex. K at 1. Petitioner’s statute of
limitations remained tolled when the trial court denied the Rule 3.850 motion
2 The jury found her not guilty of another count of second degree arson.
Resp. Ex. A at 221.
without prejudice to her filing an amended motion on August 8, 2007, id. at 8,
and when she filed her amended Rule 3.850 motion on September 6, 2007, id.
at 13. See Bates v. Sec’y, Dep’t of Corr., 964 F.3d 1326, 1328 (11th Cir. 2020)
(holding “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”). The trial court summarily denied the amended Rule
3.850 motion on October 19, 2007, Resp. Ex. K at 25, and Petitioner timely
appealed, id. at 53; see also Simmonds v. State, No. 1D07-6597 (Fla. 1st DCA).
While Petitioner’s appeal in No. 1D07-6597 was pending, Petitioner filed
in the trial court a motion to correct illegal sentence under 3.800(a) on August
1, 2008. Resp. Ex. M at 1. The trial court denied her Rule 3.800(a) motion on
August 14, 2008, id. at 3, and Petitioner appealed, id. at 5; Simmonds v. State,
No. 1D08-4811 (Fla. 1st DCA). While Petitioner’s appeal in No. 1D08-4811 was
pending, on October 7, 2008, the First DCA issued its mandate in No. 1D07-
6597, affirming the trial court’s denial of Petitioner’s amended Rule 3.850
motion. Resp. Ex. L at 7. Thereafter, on May 15, 2009, the First DCA issued its
mandate in No. 1D08-4881, affirming the trial court’s denial of Petitioner’s Rule
3.800(a) motion. Resp. Ex. N at 6. The issuance of this second mandate un-tolled
Petitioner’s one-year limitations period, and it resumed running the next day,
May 16, 2009.
Another 115 days of un-tolled time, for a total of 236 days, went by until
Petitioner filed a state petition for writ of habeas corpus on September 8, 2009.3
Resp. Ex. O. On February 2, 2011, the trial court dismissed the petition. Resp.
Ex. P. Petitioner had thirty days, until March 4, 2011, to file a notice of appeal.
See Fla. R. Crim. P. 3.850(k). When she failed to seek an appeal, her federal
limitations period began running again the next day, March 5, 2011.
Petitioner’s one-year limitations period then ran for another 3 days, for a
total of 239 days, until Petitioner filed a Rule 3.800(c) motion on March 8, 2011.
Resp. Ex. Q. While Petitioner’s Rule 3.800(c) motion was still pending, on
September 6, 2013, Petitioner, through counsel, filed another Rule 3.850 motion
based on a claim of newly discovered evidence. Resp. Ex. S. On April 26, 2016,
the trial court dismissed with prejudice Petitioner’s Rule 3.800(c) motion. Resp.
Ex. R. Petitioner did not appeal the denial, and her time for doing so expired on
May 26, 2016.
On May 13, 2016, the trial court summarily denied Petitioner’s Rule 3.850
newly discovered evidence motion. Resp. Ex. T. Over 8 months later, on
February 9, 2017, Petitioner filed a pro se notice of appeal challenging the Rule
3 Respondents argue Petitioner’s September 8, 2009; March 8, 2011; and
September 6, 2013, state postconviction filings did not toll her federal one-year
period because they were unauthorized and/or untimely. Resp. at 6. However,
the Petition is untimely regardless of the “properly filed” status of those
motions. Thus, for purposes of this Order, the Court assumes these filings tolled
Petitioner’s federal statute of limitations.
3.850 denial. Resp. Ex. U. On February 16, 2017, the First DCA sua sponte
ordered Petitioner to show cause why her appeal should not be dismissed as
untimely. Id. And on May 3, 2017, the First DCA per curiam dismissed
Petitioner’s appeal. Id. The mandate was issued on May 31, 2017. Id.
Because Petitioner’s February 9, 2017, notice of appeal was dismissed as
untimely, it was not a “properly filed” pleading that statutorily tolled her one-
year limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005)
(holding that a state postconviction motion that is rejected by the state court as
untimely filed is not “properly filed” for purposes of § 2244(d)(2)); Cardona v.
Sec’y Dept. of Corr., No. 8:13-cv-2119-T-33-MAP, 2015 WL 1880765, *2 (M.D.
Fla. Apr. 24, 2015). As such, following the denial of her Rule 3.850 motion,
Petitioner’s one-year recommenced on June 13, 2016, when the time for filing a
timely notice of appeal expired.4 With 239 days having previously elapsed,
Petitioner’s one-year limitations period expired 126 days later, on October 17,
2016. Therefore, the Court finds that the Petition, filed on October 9, 2017, is
untimely filed. Likewise, even assuming Petitioner’s one-year period was tolled
until the First DCA issued its mandate dismissing her appeal on May 31, 2017,
her one year would have expired 126 days later on October 5, 2017, and thus,
the Petition still would be deemed untimely filed.
4 The thirtieth day fell on a Sunday, June 12, 2016, so the appeal period
continued to run until the following Monday. See Fed. R. Civ. P. 6(1)(C).
Petitioner does not argue that she is entitled equitable tolling, and she
fails to allege any factual allegations supporting due diligence or extraordinary
circumstances. See Lawrence v. Florida, 549 U.S. 327, 336 (2007); see Cadet v.
Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017). To the extent
Petitioner argues she is entitled to equitable tolling because her postconviction
attorney failed to advise her to appeal the trial court’s order denying her newly
discovered evidence claim, her subsequent actions do not demonstrate due
diligence. Indeed, she fails to explain why she waited an additional 159 days to
file the Petition once the First DCA dismissed her pro se appeal as untimely.
These circumstances do not warrant equitable tolling
Further, to the extent Petitioner relies on the newly discovered evidence
claim presented in Ground One of the Petition to support the miscarriage of
justice/actual innocence exception to the time bar, that claim is also
unpersuasive. To avoid the one-year limitations period based on actual
innocence, a 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”).
In her newly discovered evidence claim, Petitioner asserts that since her
trial, state witness Harry Walker has confessed to three people that he testified
falsely at Petitioner’s trial in exchange for a non-habitualized sentence in his
drug case. Doc. 1 at 3. Petitioner raised this exact claim in her September 6,
2013, Rule 3.850 motion, and supported the allegations with affidavits from
Marcus Brown, Glen Kilpatrick, and Danita Cherry who all asserted that
Walker admitted to them that he lied at Petitioner’s trial. Resp. Ex. S at 10.
The trial court denied the claim, finding in relevant part that this newly
discovered evidence was not of such a nature that it would probably produce an
acquittal on retrial. Id. at 12. It noted that Walker’s trial testimony only played
a minor role in Petitioner’s prosecution, explaining he merely testified he saw
Petitioner in the vicinity of the house fire and that Petitioner had made previous
comments about wanting the victims to move out of the neighborhood because
“she didn’t want her drug boys to get busted” by a potential neighborhood watch
group. Id. at 4. The trial court explained that the most incriminating testimony
came from state witness Latorya Jones who testified that when she saw one of
the homes on fire, she approached Petitioner and that Petitioner told Jones “she
had set the house on fire and she was going to stand there and watch it burn.”
Id. at 5. Based on this record, the Court finds Petitioner has failed to satisfy the
actual innocence exception to the time bar.
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.5
5 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 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983)). Here, after consideration of the record as a whole,
the Court will deny a certificate of appealability.
DONE AND ORDERED at Jacksonville, Florida, this 4th day of
December, 2020.
□□□ Limothy Corrigan
Ww TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C: Dusty Simmonds, #281545
Thomas H. Duffy, Esq.
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