Dukes v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

ARTHUR LEE DUKES,

Petitioner,

v. Case No: 5:18-cv-375-TPB-PRL

SECRETARY, DEPARTMENT OF

CORRECTIONS and FLORIDA

ATTORNEY GENERAL,

Respondents.

___________________________________/

ORDER DISMISSING PETITION WITH PREJUDICE

I. Status

Petitioner, Arthur Lee Dukes, 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 (Marion County, Florida) judgment of conviction for which he is serving

a life term of incarceration. (Id. at 1). Respondents filed a Response, asserting this

action is untimely filed and requesting dismissal of this case with prejudice.1 (Doc.

14). Petitioner replied, arguing that he is entitled to equitable tolling. (Doc. 20).

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:

1 Attached to the Response are several exhibits. The Court cites the exhibits as “Resp. Ex.”

(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 September 13, 2012, a jury found Petitioner guilty of first-degree murder.

(Resp. Ex. B at 1110). The trial court sentenced Petitioner to a life term of

incarceration, and Petitioner, with help from appellate counsel, sought a direct

appeal. (Resp. Ex. D). On February 4, 2014, the Fifth District Court of Appeal per

curiam affirmed Petitioner’s judgment and conviction without a written opinion.

(Resp. Ex. F). Petitioner’s judgment and sentence became final ninety days later,

May 5, 2014. See Clay v. United States, 537 U.S. 522 (2003); Close v. United States,

336 F.3d 1283, 1285 (11th Cir. 2003) (“According to rules of the Supreme Court, a

petition for certiorari must be filed within 90 days of the appellate court’s entry of

judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days

of the appellate court's denial of that motion.” (citing Supreme Court Rule 13.3)).

His one-year federal habeas statute of limitations began to run the next day, May 6,

2014.

Petitioner’s one-year limitations period ran for 332 days until it was tolled on

April 3, 2015, when Petitioner filed a Florida Rule of Criminal Procedure 3.800(a)

motion. (Resp. Ex. G). The trial court denied Petitioner’s Rule 3.800(a) motion on

May 29, 2015. (Resp. Ex. H). Petitioner did not appeal the trial court’s denial, and

thus Petitioner’s one-year statute of limitations remained tolled until the time to

file a notice of appeal expired on Monday, June 29, 2015.2 Petitioner’s one-year

limitations period resumed the next day, June 30, 2015, and expired 33 days later,

on Monday, August 3, 2015,3 without Petitioner filing another motion in state court

2 The 30th day fell on Sunday, June 28, 2015, so Petitioner had until Monday, June 29, 2015, to file a

notice of appeal.

3 The 33rd day fell on a Sunday, so Petitioner had until Monday to file a federal habeas petition.

that would properly toll his one-year period. Petitioner filed the Petition two years

and eleven months later on July 17, 2018.

On January 1, 2016, 157 days after the expiration of his one-year AEDPA

statute of limitations, Petitioner filed a motion under Florida Rule of Criminal

Procedure 3.850. (Resp. Ex. I). However, because there was no time left to toll,

Petitioner’s Rule 3.850 motion did not toll his federal 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”). Thus, the Petition is untimely filed.

In his Reply, Petitioner admits that his Petition is untimely filed, but argues

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)).

According to Petitioner, he was prevented from timely filing his Petition

because he was denied access to a prison law clerk, he was transferred between

prison facilities, and he did not have access to his trial transcripts between August

2014 and August 10, 2015. See generally (Doc. 20). In support of his argument,

Petitioner attaches several grievances he filed with the Florida Department of

Corrections requesting copies of his court documents. See generally (id. at 9-13).

Upon review of the record and considering Petitioner’s extreme delay in filing

the Petition, 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)).

Further, while Petitioner presents some evidence that he sought to obtain his

legal documents from the law library, Petitioner submitted his first request on May

10, 2015, less than three months before his one-year expired. (Doc. 20 at 9). He

claims that he finally received his documents on August 10, 2015, yet after his

receipt, Petitioner waited another 150 days before he filed his Rule 3.850 motion.

Such evidence does not show the diligence necessary for equitable tolling. And

Petitioner does not 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).

As such, 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 in Chambers, in Tampa, Florida, this 12th day of

August, 2021.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

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C: Arthur Lee Dukes, #631178

Carmen F. Corrente, Esquire

4 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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