The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DAVID VAHLKAMP,
Petitioner,
v. Case No: 2:20-cv-265-JES-NPM
SECRETARY, DOC,
Respondent.
ORDER
Before the Court is Petitioner David Vahlkamp’s Petition
Under 28 U.S.C. § 2254 by a Person in State Custody Pursuant to a
State Court Judgment (Doc. 1). Vahlkamp challenges his 2004
first-degree murder conviction and resulting sentence of life
imprisonment. Respondent moves to dismiss the Petition as
untimely.
28 U.S.C. § 2244, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), sets a one-year period
of limitations to the filing of a habeas petition by a person in
state custody. This limitation period runs 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.
28 U.S.C. § 2244(d)(1). Vahlkamp does not allege, nor does it
appear from the pleadings or the record, that the statutory
triggers in subsections (B)-(D) apply. Thus, the limitations
period began to run on the date Vahlkamp’s conviction became final.
28 U.S.C. § 2244(d)(1)(A). The limitation period is tolled for
“[t]he 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[.]” 28 U.S.C. §
2244(d)(2).
After a jury found Vahlkamp guilty, the trial court sentenced
him on April 12, 2004. (Doc. #9-2 at 24). Vahlkamp appealed, and
the Second District Court of Appeal of Florida (2nd DCA) affirmed.
(Id. at 131). The 2nd DCA denied Vahlkamp’s motion for rehearing
on March 1, 2006. (Id. at 136). Vahlkamp’s conviction became
final 90 days later, when the time to petition the United States
Supreme Court for certiorari expired. See Moore v. Sec’y, Fla.
Dep’t of Corr., 762 F. App’x 610, 617 (11th Cir. 2019). The one-
year limitations period ran untolled from May 30, 2006, to May 30,
2007.
Vahlkamp states he hired attorney Charles Murray in April or
May 2006 to file a state postconviction motion. Vahlkamp’s
appellate counsel had advised that he must file a state
postconviction motion within one year to preserve his federal
habeas rights, and Vahlkamp passed that advise along to Murray.
But Murray did not meet the deadline; he filed a motion under
Florida Rule of Criminal Procedure 3.850 on February 27, 2008,
well after the limitation period had run. (Doc. #9-2 at 138).
The postconviction court struck the motion because it did not
contain the required oath. (Id. at 163). Murray filed an amended
motion on November 6, 2008. (Id. at 166). He blamed the delay
on a combination of “misunderstanding, secretarial mistake
and…computer and docketing problems.” (Id. at 197). The
postconviction court denied the amended motion on May 24, 2010.
(Id. at 226-27). Vahlkamp did not timely appeal.
On May 23, 2012—through new counsel—Vahlkamp moved for a
belated appeal. (Id. at 232). The 2nd DCA granted the motion.
(Id. at 245). On December 19, 2012, it affirmed denial of
Vahlkamp’s 3.850 motion. (Id. at 273). Mandate issued on January
30, 2013. (Id. at 282). Also, on May 23, 2012, Vahlkamp requested
leave to file an amended Rule 3.850 motion. (Id. at 284). The
postconviction court allowed the amendment but ultimately denied
the amended motion. (Id. at 441). Vahlkamp appealed, and the 2nd
DCA affirmed and issued its mandate on April 29, 2020. (Id. at
518, 528). None of Vahlkamp’s state postconviction motions tolled
the AEDPA limitation period because it had already expired. See
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000).
Vahlkamp concedes his Petition is untimely but asserts
Murray’s conduct entitles him to equitable tolling. A federal
habeas petitioner “is entitled to equitable tolling only if he
shows (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks and citation omitted). “[E]quitable
tolling is an extraordinary remedy limited to rare and exceptional
circumstances and typically applied sparingly.” Cadet v. Fla.
Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017).
Attorney negligence, even gross negligence, is not “enough to
meet the extraordinary circumstance requirement for equitable
tolling in a habeas case.” Id. at 1236. A petitioner must show
something more, like abandonment, bad faith, dishonesty, divided
loyalty, or mental impairment. Id. Vahlkamp claims Murray
abandoned him, and Respondent disagrees. It is a close call.
Murray’s “negligence in missing the filing deadline does not mean
that he abandoned or effectively abandoned” Vahlkamp. Id. at
1234. And Murray did eventually file the Rule 3.850 motion. On
the other hand, Vahlkamp claims Murray failed to communicate with
him prior to the AEDPA deadline, did not inform him when the
postconviction court denied the motion, and did not file an appeal.
The Court need not decide whether Murray’s failures amount to
“extraordinary circumstances” for equitable tolling purposes
because Vahlkamp fails to establish the other requirement for
equitable tolling: reasonable diligence. While a petitioner need
not exercise “maximum feasible diligence,” he must make some
independent effort. Melson v. Comm’r, Ala. Dep’t of Corr., 713
F.3d 1086, 1089 (11th Cir. 2013). Even accepting as true every
claim made in Vahlkamp’s Petition, Reply (Doc. #12), and supporting
affidavit (Doc. #13-1), Vahlkamp took no independent action to
preserve his rights after retaining Murray and informing him of
the AEDPA deadline.1
Vahlkamp claims there was “nothing else [he] could do.”
(Doc. #12 at 4). But that is not true. A petitioner can exercise
reasonable diligence by actively communicating with his counsel to
ensure his rights are preserved. See Thomas v. Attorney Gen., 992
F.3d 1162, 1179-80 (11th Cir. 2021); see also Brown v. Sec’y, Dep’t
of Corr., 750 F. App’x 915, 938 (11th Cir. 2018). While Vahlkamp
faults Murray for not communicating with him, Vahlkamp does not
1 It is unclear whether Vahlkamp correctly informed Murray
about the AEDPA deadline. His Petition, Reply, and Affidavit
consistently and incorrectly state the one-year limitations period
expired on May 30, 2006. Whether Vahlkamp knew his AEDPA clock ran
in May 2007 or incorrectly believed it ran in 2006, he took no
action to preserve his federal habeas rights until years later.
claim he made any attempts to communicate with Murray as the AEDPA
deadline approached. A petitioner can also file a pro se habeas
petition and ask for a stay as he exhausts his state remedies.
See Hutchinson v. Florida, 677 F.3d 1097, 1102 (11th Cir. 2012).
“While there is no hard and fast rule regarding what [Vahlkamp]
should have done,” his years of inaction fall well short of the
reasonable diligence required for equitable tolling. See Jackson
v. Sec’y, Dep’t of Corr., 782 F. App’x 774, 778 (11th Cir. 2019)
(finding a lack of diligence when the petitioner failed to explain
a two-month delay in filing his federal habeas petition).
Because Vahlkamp failed to show he pursued his rights
diligently, he is not entitled to equitable tolling. The Court
thus dismisses his Petition as untimely.
Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1). Rather, a district court must first issue
a certificate of appealability (COA). “A [COA] may issue...only
if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, a 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) (citations omitted). Vahlkamp has not made the requisite
showing here and may not have a certificate of appealability on
any ground of his Petition.
Accordingly, it is hereby
ORDERED:
Petitioner David Vahlkamp’s Petition Under 28 U.S.C. § 2254
by a Person in State Custody Pursuant to a State Court Judgment
(Doc. 1) is DISMISSED. The Clerk is DIRECTED to terminate all
motions and deadlines, enter judgment, and close the case.
DONE and ORDERED at Fort Myers, Florida, this 19th day
of October 2021.
\ fe Ae f
E. STEELE
Sq IOR UNITED STATES DISTRICT JUDGE
SA: FTMP-1
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