Walden v. Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TRAVIS WALDEN,

Petitioner,

v. Case No. 3:18-cv-1022-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Travis Walden, an inmate of the Florida penal system,

initiated this action in the Northern District of Florida 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. Then, the Honorable Gary R. Jones, United States Magistrate Judge,

transferred the case to this Court. See Doc. 4. Petitioner challenges a state court

(Duval County, Florida) judgment of conviction for which he is serving a life

term of incarceration. Doc. 1 at 1. Respondents argue that the Petition is

untimely filed and request dismissal of this case with prejudice. See Doc. 16

(Resp.).1 Petitioner replied. See Doc. 18. This case is ripe for review.

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

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

“Resp. Ex.”

(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 June 3, 2011, a jury found Petitioner guilty of two counts of sexual

battery upon a person less than twelve years old. Resp. Ex. A at 174-75. On July

26, 2011, the trial court sentenced Petitioner to a life term of incarceration as

to each count. Resp. Ex. B at 210-14. On December 17, 2012, the First District

Court of Appeal per curiam affirmed Petitioner’s judgment and sentences

without a written opinion. Resp. Ex. J. Petitioner’s judgment and sentences

became final ninety days later on March 18, 2013.2 Petitioner’s federal one-year

statute of limitations began to run the next day, March 19, 2013. His one-year

limitations period then expired on Wednesday, March 19, 2014, without

2 The ninetieth day fell on a Sunday, thus Petitioner had until Monday, March

18, 2013, to file a petition for writ of certiorari seeking review in the United States

Supreme Court.

Petitioner filing any state postconviction motions that would toll the one-year

period.

After the expiration of his statute of limitations, Petitioner filed with the

trial court his first motion for postconviction relief under Florida Rule of

Criminal Procedure 3.850 on December 11, 2014. Resp. Ex. K. Because there

was no time left to toll, however, Petitioner’s motion for postconviction relief did

not toll the federal one-year limitations period. See Sibley v. Culliver, 377 F.3d

1196, 1204 (11th Cir. 2004) (stating that 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.”). As such, the Petition, filed on August 13, 2018, is untimely filed.

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)).

In his Reply, Petitioner argues that he is entitled to equitable tolling

because he was placed in close management when he entered FDOC custody

and he has been denied adequate access to the law library and law clerks. Doc.

18 at 2-3. He also argues that he has been undergoing mental health treatment,

“being heavily sedated with medications from August 11, 2011 and is currently

under the same treatment,” and thus he has been forced to rely on law clerks to

file postconviction motions. Id.

This Court finds Petitioner’s argument about his lack of legal resources

to be unavailing. See Miller v. Florida, 307 F. App’x 366, 368 (11th Cir. 2009)

(affirming a district court’s dismissal of a habeas petition as untimely;

“restricted access to a law library, lock-downs, and solitary confinement,” as

well as “lack of legal training” and “inability to obtain appointed counsel”

seldom qualify as circumstances warranting equitable tolling); Paulcin v.

McDonough, 259 F. App’x 211, 213 (11th Cir. 2007) (finding that an inmate’s

“transfer to county jail and denial of access to his legal papers and the law

library did not constitute extraordinary circumstances”); Rivers v. United

States, 416 F.3d 1319, 1323 (11th Cir. 2005); Perry v. Sec’y, Dep’t of Corr., No.

6:14-cv-262-Orl-31TBS, 2016 WL 345526, at *3 (M.D. Fla. Jan. 28, 2016)

(unpublished) (acknowledging that “[f]actors such as a lack of access to a law

library, lack of legal papers, ignorance of the law, lack of education, and pro se

status are not considered extraordinary circumstances that would excuse an

untimely habeas petition” (citations omitted)).

The Court also finds Petitioner’s generalized allegations about his mental

health treatment to be insufficient to show the necessary extraordinary

circumstances warranting equitable tolling. See Lawrence v. Florida, 421 F.3d

1221, 1226-27 (11th Cir. 2005) (finding that the petitioner’s alleged low IQ and

conclusory claim that he suffered from mental impairments his entire life,

without more, failed to establish a causal connection between his alleged mental

incapacity and his ability to timely file petition). “[M]ental impairment is not

per se a reason to toll a statute of limitations.” Hunter v. Ferrell, 587, F.3d 1304,

1308 (11th Cir. 2009) (citation omitted). Rather, the standard is rigorous: “To

be entitled to equitable tolling on the basis of mental illness, a petitioner must

show more than that it is difficult for him to understand and act upon his legal

rights; rather, he must show that he was incapable of preparing and filing a

federal habeas petition . . . any earlier than he did.” Hay v. Sec’y, DOC, No.

3:15-cv-619-J-39PDB, 2017 WL 3387385, at *4 (M.D. Fla. Aug. 7, 2017)

(internal quotation and citation omitted). The record demonstrates that

Petitioner filed a Rule 3.850 motion with the trial court eight months after his

federal statute of limitations expired, and at the trial court’s direction, filed two

amended Rule 3.850 motions afterward. See Resp. Exs. K-P. The Court is not

convinced that Petitioner’s alleged mental impairment prevented him from

filing his state collateral motions before March 2014, but he somehow obtained

the ability to file them in December 2014. Under these circumstances, the Court

finds that Petitioner is not entitled to equitable tolling.

To the extent Petitioner claims actual innocence, he also fails to meet his

burden. “[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar . . . or, as in

this case, expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S.

Ct. 1924, 1928 (2013). 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”).

Petitioner has not offered any new reliable evidence that was unavailable

at the time of his trial. He has not produced exculpatory evidence, trustworthy

eyewitness accounts, or critical physical evidence not previously available.

Indeed, he has failed to point to any evidence to show it is more likely than not

that no juror, acting reasonably, would have found him guilty beyond a

reasonable doubt because of new evidence.

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 15th day of July,

2021.

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Travis Walden, #J44814

Jennifer J. Moore, 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.

§ 2258(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. 4738, 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 (1983)). Here, after consideration of the record as a whole,

the Court will deny a certificate of appealability.