Williams v. Jones (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TIMOTHY WILLIAMS,

Petitioner,

v. Case No. 3:18-cv-859-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Timothy Williams, an inmate of the Florida penal system,

initiated this action, with help from counsel,1 by filing a Petition Under 28

U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Doc. 1.

He also filed a memorandum of law supporting the Petition. Doc. 2. Petitioner

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

which he is serving a twenty-five-year term of incarceration. Doc. 1.

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

1 Rachael E. Reese, Esquire, is representing Petitioner in this action.

this case with prejudice. See Doc. 10 (Resp.).2 Petitioner replied. See Doc. 13.

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

2 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, 2010, Petitioner entered an open plea of guilty to two counts

of attempted second degree murder. Resp. Ex. B. Michael Bossen, Esquire,

represented Petitioner when he entered his plea. See State v. Williams, No. 16-

2008-CF-18083 (Fla. 4th Cir. Ct.). In October 2011, on the day Petitioner was

set to be sentenced, Petitioner provided Bossen with a pro se motion to

withdraw his plea. Resp. Ex. F at 101. Bossen asked the trial court to continue

Petitioner’s sentencing hearing, so Bossen could review the pro se motion and

determine whether to adopt it. Id. The trial court granted Bossen’s request, and

after reviewing the contents of the pro se motion that included allegations that

Bossen failed to adequately engage in pretrial discovery, Bossen determined

that the motion should be filed with the trial court and moved to withdraw as

counsel. Id. at 101-02. The trial court granted Bossen’s request to withdraw and

appointed Adair Rommel, Esquire, to represent Petitioner. Williams, No. 16-

2008-CF-18083; Resp. Ex. F at 125. After her appointment, Rommel declined to

adopt the pro se motion to withdraw plea. Id. at 129. Then, on December 14,

2011, the trial court sentenced Petitioner to a twenty-five-year minimum

mandatory term of incarceration as to each count and ordered that the

sentences run concurrently. Resp. Ex. C. Petitioner did not seek a direct appeal,

and thus his judgment and sentences became final upon the expiration of the

time to file a notice of appeal, Friday, January 13, 2012. See Fla. R. App. P.

9.140(b)(3). Petitioner’s AEDPA one-year statute of limitations would have

commenced the next day, January 14, 2012. However, on December 22, 2011,

before Petitioner’s judgment and sentences became final, Rommel, on behalf of

Petitioner filed with the trial court a motion under Florida Rule of Criminal

Procedure 3.850. Resp. Ex. F at 1. Petitioner’s Rule 3.850 motion tolled the

commencement of his one-year period.

Rommel then moved to withdraw as counsel for Petitioner, and the trial

court appointed Jonathan Sacks, Esquire, as postconviction counsel. See

Williams, No. 16-2008-CF-18083. Following an evidentiary hearing, the trial

court denied Petitioner’s Rule 3.850 motion on July 24, 2012. Resp. Ex. F at 63.

Petitioner appealed, and on July 24, 2014, the First District Court of Appeal per

curiam affirmed the trial court’s denial without a written opinion. Resp. Ex. J.

The First DCA issued its mandate on August 19, 2014. Id. Petitioner’s one-year

limitations period, which remained tolled until the First DCA’s mandate, began

to run the next day, August 20, 2014.

On June 26, 2015,3 310 days into Petitioner’s statute of limitations,

Rachael Bushey, Esquire, on behalf of Petitioner, filed with the trial court a

“Successive Motion for Post Conviction Relief” under Rule 3.850. Resp. Ex. K at

3-20. However, on September 7, 2017, the trial court dismissed Petitioner’s

successive Rule 3.850 as untimely filed. Id. at 32-35. The trial court also found

Petitioner’s motion “procedurally barred as successive and constitute[d] an

abuse of process.” Id. at 35. Petitioner appealed and the First DCA affirmed the

trial court’s dismissal, issuing its mandate on April 12, 2018. Resp. Ex. O.

Because the state court dismissed Petitioner’s successive Rule 3.850 as

untimely and procedurally barred, it was not a “properly filed” pleading that

statutorily tolled his one-year limitations period. See Pace v. DiGuglielmo, 544

U.S. 408, 414 (2005) (holding that a state postconviction motion 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-33MAP, 2015 WL 1880765,

*2 (M.D. Fla. Apr. 24, 2015). As such, between August 20, 2014, and August 20,

3 Respondents erroneously state that Petitioner filed his successive Rule 3.850

motion on July 1, 2015. Resp. at 7. However, for purposes of this Order, the Court finds

that Petitioner filed his successive Rule 3.850 motion on the date adhered to the prison

stamp, which is June 26, 2015.

2015, Petitioner did not have any properly filed motions that tolled his one-year

limitations period, and therefore his one year expired on Thursday, August 20,

2015. Accordingly, the Court finds that the Petition, filed on July 10, 2018, is

untimely filed.4

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)).

4 Likewise, even assuming Petitioner’s successive Rule 3.850 motion tolled his

one-year period until the First DCA issued its April 12, 2018, mandate, his one year

would have resumed April 13, 2018, and expired 55 days later on June 7, 2018, and

the Petition would still be untimely filed.

In his Reply, Petitioner argues that the Court should consider the merits

of his Petition “because he can show cause and actual prejudice from the

default.” Doc. 13 at 2. To support that claim, Petitioner relies on the “cause and

prejudice” standard set forth in Coleman v. Thompson, 501 U.S. 722 (1991), to

argue that the Court should overlook the state court’s finding that his

successive Rule 3.850 motion was untimely. Doc. 13 at 2-4. Petitioner’s reliance

on Coleman is misplaced. The “cause and prejudice” standard Petitioner

references applies to the issue of exhaustion and cause to excuse a procedural

default premised on a state court’s independent and adequate state procedural

rule. See Coleman, 501 U.S. at 750. This “cause and prejudice” standard does

not pertain to the timeliness of a federal habeas petition. As a result, to the

extent that Petitioner relies on procedural default case law to excuse the

untimely filing of this action, such authority is inapplicable. See White v.

Martel, 601 F.3d 882, 884 (9th Cir. 2010) (finding petitioner’s reliance on

procedural default principles, attacking the adequacy of a state’s independent

procedural bar, was irrelevant to timeliness analysis); see also Lambrix v. Sec’y,

Fla. Dept. of Corr., 756 F.3d 1246, 1249 (11th Cir. 2014) (holding “cause and

prejudice” standard of Martinez5 only applies to procedural default analysis and

5 Martinez v. Ryan, 132 S. Ct. 1309 (2012).

has no application to the operation or tolling of the § 2244(d) statute of

limitations for filing a § 2254 petition).

Petitioner also appears to argue that he is entitled to equitable tolling

because his attorney at sentencing, Rommel, should have moved to withdraw

Petitioner’s plea under Florida Rule of Criminal Procedure 3.170(l) within

thirty days of Petitioner’s sentencing instead of filing a Rule 3.850 motion. Doc.

13 at 4. Notably, Petitioner asserts that had counsel filed a motion under Rule

3.170(l), any appeal taken after would have been a direct appeal of his judgment

and sentences. Id. To that end, he asserts that his judgment and sentences

would have become final ninety days after the First DCA issued its July 24,

2014, opinion, and so his AEDPA statute of limitations would begin to run on

October 22, 2014. Id. at 6-7. He then contends that the trial court would not

have dismissed his second Rule 3.850 motion as untimely, and thus that motion

would have been considered “properly filed” to toll his one-year limitations

period. Id. at 7.

Petitioner’s logic is flawed. Petitioner is correct that if his attorney had

filed a Rule 3.170(l) motion rather than a Rule 3.850 motion, the appeal

Petitioner filed following the trial court’s denial would be a direct appeal of his

judgment and sentences. But he assumes that had counsel pursued that course,

the First DCA would have per curiam affirmed his judgment and sentences

without a written opinion on the exact date it affirmed the trial court’s denial

of the initial Rule 3.850 motion. Petitioner cannot rely on such hypotheticals to

overcome the AEDPA time bar. Petitioner’s claim that a Rule 3.170(l) motion

and subsequent direct appeal would have resulted in a more favorable

calculation of his one-year period does not amount to the type of extraordinary

cicrumstance entitling him to equitable tolling.

Further, and likely of more import, “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.” Clemons v. Comm’r, Ala. Dep’t

of Corr., 967 F.3d 1231, 1242 (11th Cir. 2020) (quoting Cadet v. Fla. Dep’t of

Corr., 853 F.3d 1216, 1227 (11th Cir. 2017)). At the evidentiary hearing on

Petitioner’s initial Rule 3.850 motion, the trial court asked Rommel about her

decision to withdraw Petitioner’s pro se motion to withdraw plea pending at the

time of her appointment. Resp. Ex. F at 125-28.

THE COURT: What happened to the motion to . . . set

aside [plea]?

[ROMMEL]: You Honor, I met with Mr. Williams. I

went over the evidence as I believed it to be at the time

and just had a conversation with him as to whether or

not it would be in his interest at that point to go forward

with the plea. And the decision was, based on the

evidence at the time, that it was in his best interest to

go forward with the plea.

THE COURT: And so did you . . . after discussing it

with him and him after discussing with you, withdraw

the motion to set aside the plea?

[ROMMEL]: Yes, sir.

Id. at 128-29. Rommel also explained that when she realized that the victim’s

testimony at sentencing contradicted his prior deposition testimony, she

considered moving to withdraw Petitioner’s plea after the sentencing hearing.

Id. at 129. She testified to the following:

[ROMMEL]: I was familiar with the law on recantation

and I was aware that there are several factors that

actually make for a viable claim. I wanted to research

that before I advised [the judge that Petitioner wished

to withdraw his plea].

In addition, before I would ever advise a client to

withdraw his plea I would want to have a lengthy

discussion about the consequences. He would have been

opening himself up again to an exposure that he needed

to be aware of, the potential of going to trial.

THE COURT: What was that exposure?

[ROMMEL]: Your Honor, it was actually attempted

second degree murder . . . . It started with a 25 year

min man. It would have gone up to life, however, I

believe he was a juvenile at the time, so technically he

couldn’t have gotten life under the new case law, but he

could [get] anywhere up to life.

It was something that I would have – I would not

have felt comfortable if I had continued with that

without a conversation with him, which is what I did. I

went to the jail afterwards. And after I researched the

issue and – also, I wanted to have the opportunity to

talk to [the victim] . . . .

Id. at 129-30.

The facts here do not show that Petitioner’s attorney abandoned him

under circumstances justifying Petitioner’s delay in pursuing his federal habeas

remedies. Rather, the record evidence shows that Petitioner’s counsel

considered filing a Rule 3.170(l) motion but based on her research and

experience, she decided that it would not have been in Petitioner’s best interest.

Counsel’s conduct does not support equitable tolling. Nor does Petitioner assert

actual innocence as a gateway to avoid enforcement of the one-year limitations

period. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). Thus, 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

August, 2021.

□ Cirmotheg Corrig oN

W TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Timothy Williams, #J41879

counsel of record

6 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.

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