Hawkins v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

STEPHEN HAWKINS,

Petitioner,

v. Case No. 3:19-cv-1262-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER OF DISMISSAL WITH PREJUDICE

I. Status

Petitioner, 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) on October 23, 2019 (mailbox rule). Petitioner

filed an Amended Petition on January 2, 2020 (Doc. 11). He challenges a state

court (Duval County, Florida) judgment of conviction for armed robbery for

which he is serving a twenty-year term of incarceration. Respondents filed a

Motion to Dismiss (Doc. 18; Motion) with exhibits (Docs. 18-1 to 18-6; Ex.),

arguing that this case is untimely filed and should be dismissed with prejudice.

Petitioner filed a Reply (Doc. 21) and an Affidavit of another inmate (Doc. 22).

This case is ripe for review.1

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;

1 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th

Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is not necessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

(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

Following a jury trial, the state court entered judgment against Petitioner

on December 29, 2014. Ex. A at 56-62. Petitioner appealed. While Petitioner’s

direct appeal was pending, on March 10, 2016, the circuit court granted

Petitioner’s motion to correct sentencing error and directed the clerk to strike

the $100 Sheriff’s Office Investigative Cost and re-record the judgment. Ex. F

at 26-28. The judgment was re-recorded on March 16, 2016, nunc pro tunc to

December 29, 2014. See id. at 12-18. On September 8, 2016, the First District

Court of Appeal issued a per curiam written opinion affirming Petitioner’s

conviction and sentence but remanding the matter for entry of a corrected

judgment striking the $100 Sheriff’s Investigatory fee. Ex. K. In its opinion, the

First DCA recognized that the circuit court had already done so, but found that

because “the order and amended judgment and sentence were filed more than

sixty days from the date [Petitioner] filed his motion[,] . . . the order and

corrected judgment and sentence [were] legal nullities.” Id. Thus, on remand,

on October 4, 2016, the circuit court entered another order directing the clerk

to strike the Sheriff’s Office Investigative Cost and re-record the judgment and

sentence. Ex. G at 4-5. It does not appear that the clerk ever re-recorded the

judgment after the October 4, 2016 order. Regardless, the re-recorded judgment

simply corrected a ministerial error; it did not authorize Petitioner’s

confinement or vacate and replace his sentence. See Patterson v. Sec’y, Fla.

Dep’t of Corr., 849 F.3d 1321, 1326-27 (11th Cir. 2017) (recognizing that “not all

changes to a sentence create a new judgment” and “[t]he relevant question is

not the magnitude of the change, but the issuance of a new judgment

authorizing the petitioner’s confinement); see also Booth v. Sec’y, Fla. Dep’t of

Corr., 729 F. App’x 861, 862-63 (11th Cir. 2018). Petitioner is still in custody

pursuant to the original judgment. Thus, the orders correcting his judgment do

not affect the calculation of his one-year limitations period.

Giving Petitioner the most lenient calculation possible (as Respondents

do in the Motion), his judgment and sentence became final on December 7, 2016,

which is 90 days after the First DCA’s per curiam opinion. 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 13.32)).

After December 7, 2016, Petitioner’s federal one-year limitations period ran for

145 days until it was tolled on May 2, 2017, by the filing of Petitioner’s pro se

motion for postconviction relief pursuant to Florida Rule of Criminal Procedure

3.850. Ex. L at 1-19. He also filed a motion to correct illegal sentence under Rule

3.800(a) on May 8, 2017. Id. at 20-31. The circuit court denied both motions on

May 22, 2017. Id. at 32-33, 34-35. Petitioner appealed the denial of his Rule

3.850 motion, and the First DCA per curiam affirmed the denial without a

written opinion and issued the mandate on November 7, 2017. Ex. O. The next

day, November 8, 2017, Petitioner’s one-year limitations period continued to

run for 71 days until he filed his second pro se Rule 3.850 motion on January

18, 2018 (mailbox rule). Ex. P. The circuit court granted Petitioner’s motion for

voluntary dismissal on May 16, 2018. Exs. Q, R. In the meantime, Petitioner

had filed a pro se petition for writ of habeas corpus with the First DCA on May

2 See Sup. Ct. R. 13.3 (“The time to file a petition for a writ of certiorari runs from the

date of entry of the judgment or order sought to be reviewed, and not from the issuance

date of the mandate.”).

14, 2018, alleging ineffective assistance of appellate counsel. Ex. S. On

November 15, 2018, the First DCA per curiam denied the petition on the merits

and denied Petitioner’s motion for rehearing on January 2, 2019. Exs. T, U.3 On

January 3, 2019, Petitioner’s one-year limitations period resumed and ran for

an additional 149 days before it expired on June 3, 2019.4 Petitioner did not file

this case until October 23, 2019. Thus, his Petition is untimely filed even under

the most lenient calculation.

Petitioner seems to recognize that his Petition is untimely, but he argues

that during the time of his trial, there was massive corruption in the Duval

County legal system and he did not receive a fair trial. Doc. 21 at 2. He also

argues he has “good reason” for his late filing because “a big shake down/drug

raid occurred in his dorm” at Okeechobee Work Camp, and all of his “discovery

paperwork was destroyed.” Id. at 3; see Doc. 22 (Affidavit of inmate Jason

McCormick, describing the shakedown at Okeechobee in which Petitioner’s

legal documents were “scattered all over the dorm, from the day room to the

3 In January and March 2019, Petitioner filed other state court postconviction motions

which were dismissed as untimely. See Exs. V, W, X at 1-35. These motions had no

effect on his one-year limitations period because they were not properly filed. 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)); Hernandez-Alberto v. Sec’y, Fla. Dep’t of Corr., 840 F.3d 1360, 1366

(11th Cir. 2016) (“The key takeaway from Pace is that an untimely application was

not, and could not ever have been considered, properly filed.”).

4 The 365th day fell on Saturday, June 1, 2019. Thus, the Court uses the following

Monday as the actual expiration date.

bathroom, wet and torn apart, mixed up with other inmate’s paperwork”).

Petitioner contends that “he did not have the money to purchase a new

discovery exhibit and new trial transcripts,” nor did he “have competent legal

assistance to include all the grounds that were included in the habeas petition.”

Doc. 21 at 3.5

“The United States Supreme Court has held that AEDPA’s statutory

limitations period may be tolled for equitable reasons.” Thomas v. Att’y Gen.,

992 F.3d 1162, 1179 (11th Cir. 2021). However, “equitable 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) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.

2009)). To warrant the application of this extreme remedy, a petitioner must

show “‘(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. Fla., 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418). “The

petitioner has the burden of establishing his entitlement to equitable tolling;

his supporting allegations must be specific and not conclusory.” Cole v. Warden,

Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014) (citation omitted); see

Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (“[A]n inmate bears a

5 Petitioner seems to conflate timeliness and exhaustion. See Doc. 21 at 3-7. The

Motion focuses solely on timeliness, so the Court’s analysis does as well.

strong burden to show specific facts to support his claim of extraordinary

circumstances and due diligence.” (citation omitted)).

The fact that Petitioner alleges his trial was unfair has no bearing on

whether he is entitled to equitable tolling. And the fact that there was a prison

shake down on some unspecified date during which Petitioner lost his legal

paperwork does not amount to an extraordinary circumstance. See Dodd v.

United States, 365 F.3d 1273, 1283 (11th Cir. 2004) (“[L]ockdowns and periods

in which a prisoner is separated from his legal papers are not ‘extraordinary

circumstances’ in which equitable tolling is appropriate.”); see also Henriquez-

Hernandez v. Sec’y, Dep’t of Corr., No. 8:19-cv-2940-WFJ-MRM, 2022 WL

3018267, at *3 (M.D. Fla. July 29, 2022) (finding that the petitioner’s “allegation

that he was without his records for an unspecified period is insufficient to

warrant equitable tolling”). Petitioner does not address any actions he took to

diligently pursue his rights during the relevant timeframe. Indeed, Petitioner

has failed to demonstrate that his untimely filing was due to extraordinary

circumstances beyond his control and unavoidable even with due diligence.

Thus, upon consideration of Petitioner’s arguments and the record, the Court

finds that he is not entitled to equitable tolling.

Additionally, Petitioner’s reliance on Martinez v. Ryan, 566 U.S. 1 (2012),

and argument that he lacked competent postconviction counsel do not save his

Petition from being untimely. Martinez did not discuss the one-year limitations

period or provide a basis for the tolling of that period. See Arthur v. Thomas,

739 F.3d 611, 630-31 (11th Cir. 2014) (recognizing that “[a]t no point in

Martinez or Trevino[6] did the Supreme Court mention the ‘statute of

limitations,’ AEDPA’s limitations period, or tolling in any way” and holding

“that the reasoning of the Martinez rule does not apply to AEDPA’s limitations

period in § 2254 cases or any potential tolling of that period”); see also Lambrix

v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1262 (11th Cir. 2014) (recognizing

that a petitioner “cannot seek equitable tolling of the limitations period based

on Martinez because we have rejected the notion that anything in Martinez

provides a basis for equitably tolling the filing deadline” (internal quotations

and citations omitted)). Petitioner’s reliance on Martinez is misplaced.

Finally, Petitioner does not make any showing of actual innocence.7 See

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Rozzelle v. Sec’y Fla. Dep’t of

Corr., 672 F.3d 1000, 1011 (11th Cir. 2012). Thus, there is no basis to excuse

his untimeliness on that basis.

Accordingly, it is

ORDERED:

1. This case is DISMISSED with prejudice as untimely.

6 Trevino v. Thaler, 569 U.S. 413, 416 (2013).

7 A review of the trial transcript reflects sufficient evidence of Petitioner’s guilt. See

Ex. C.

2. If Petitioner appeals, 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.®

3. The Clerk shall enter judgment dismissing this case with prejudice

as untimely, terminate any pending motions, and close this case.

DONE AND ORDERED at Jacksonville, Florida, this day of

November, 2022.

od Gmothy J. Corrigan

WW. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 11/23

C:

Stephen Hawkins, #J54292

Counsel of Record

8 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.

10