# Wilson v. Secretary, Department of Corrections (Duval County)

> District Court, M.D. Florida · January 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10111844

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10111844

## How later opinions describe it (automated extraction)

- 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)
- finding that to show 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”
- 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”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

KENNETH A. WILSON, III,

Petitioner,

v. Case No. 3:20-cv-217-TJC-MCR

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.
________________________________

ORDER
I. Status
Petitioner, Kenneth A. Wilson, III, 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. He is proceeding on an
Amended Petition. Doc. 7. Petitioner challenges a state court (Duval County,
Florida) judgment of conviction for first degree murder and armed robbery, for
which he is serving a life term of incarceration. Id. at 1. Respondents argue that
the Petition is untimely filed and request dismissal with prejudice. See Doc. 16
(Resp.).1 Petitioner filed a Notice advising that he declines to file a reply and

1 Attached to the Response are several exhibits. The Court cites the exhibits as
“Resp. Ex.”
relies on his assertions and claims as state in his Amended Petition. 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

(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
a. Timeliness
On August 15, 2014, a jury found Petitioner guilty of first degree murder
(count one) and armed robbery (count two). Resp. Ex. A at 129-31. On
September 25, 2014, the trial court sentenced Petitioner to a life term of
incarceration on each count, with the sentence for count two to run concurrent
to the sentence for count one. Id. at 179. Petitioner, with help from appellate
counsel, sought a direct appeal. Id. at 193. While his appeal was pending,
Petitioner filed with the trial court a motion under Florida Rule of Criminal
Procedure 3.800(b)(2), seeking to correct an alleged error in the costs assessed
at sentencing. Resp. Ex. B at 1-7. Because the trial court did not rule on the
Rule 3.800(b)(2) motion within sixty days, the motion was treated as denied
under Rule 3.800(b)(2)(B) on May 5, 2015. Id. at 18.
On March 23, 2016, the First District Court of Appeal per curiam affirmed
Petitioner’s judgment and sentences without a written opinion. Resp. Ex. G.

Petitioner timely moved for a written opinion, and the First DCA granted the
request. Id. On May 20, 2016, the First DCA issued its written opinion:
Following our per curiam affirmance of Appellant’s
convictions and sentences for first-degree murder and
robbery while armed with a firearm, Appellant,
Kenneth Arthur Wilson, filed a motion pursuant to rule
9.330(a), Florida Rules of Appellate Procedure,
requesting a written opinion. We grant the motion,
withdraw our previous per curiam affirmance, and
substitute the following opinion which also affirms.

Appellant raised two issues in his appeal. In his motion
for written opinion he raises only the issue that our
affirmance conflicts with Villanueva v. State, 189 So.
3d 982 (Fla. 2d DCA 2016), which found that a
probationer’s consent to a warrantless search following
a traffic stop was not voluntarily given. However, we
find Villanueva distinguishable.

In Villanueva the facts were undisputed. Id. at 984.
There, the officer testified that Villanueva consented to
search because he believed he had no choice since he
was on probation, and that misunderstanding by
Villanueva was not corrected by the officer. Id. In
contrast, here the trial judge had conflicting evidence
as to whether the Appellant, who was on probation for
another offense, was told he had to accompany law
enforcement officers to the Sheriff’s office for
questioning regarding a murder. The trial judge
weighed the evidence and found based on their
“demeanor and experience” that “the testimony given
by these officers at the suppression hearing [was] more
credible than that of the Defendant and his mother.”
It is well-established “[w]hen ruling on a motion to
suppress, it is the responsibility of the trial judge, not
the jury, to resolve issues of fact.” Jerido v. State, 15 So.
3d 851, 851 (Fla. 1st DCA 2009). As the Florida
Supreme Court has stated:

We recognize and honor the trial court’s
superior vantage point in assessing the
credibility of witnesses and in making
findings of fact. The deference that
appellate courts afford findings of fact
based on competent, substantial evidence
is an important principle of appellate
review. In many instances, the trial court
is in a superior position “to evaluate and
weigh the testimony and evidence based
upon its observation of the bearing,
demeanor, and credibility of the
witnesses.” Shaw v. Shaw, 334 So. 2d 13,
16 (Fla. 1976). When sitting as the trier of
fact, the trial judge has the “superior
vantage point to see and hear the witnesses
and judge their credibility.” Guzman v.
State, 721 So. 2d 1155, 1159 (Fla. 1998),
cert. denied, 526 U.S. 1102 (1999).
Appellate courts do not have this same
opportunity.

Stephens v. State, 748 So. 2d 1028, 1034 (Fla.1999).

The trial judge resolved the factual dispute in finding
that the Appellant voluntarily accompanied the
officers. The trial judge considered the voluntariness of
the confession.[FN1] The trial judge then found that
the State met its burden and that the totality of the
circumstances surrounding the Appellant’s confession
showed that it was freely and voluntarily given. See
Martin v. State, 107 So. 3d 281, 298 (Fla. 2012); State
v. Mallory, 670 So. 2d 103 (Fla. 1st DCA 1996).

AFFIRMED.
[FN1] Appellant did not argue that his confession was
invalid for any reason other than his claim that he was
required to accompany the officers to the Sheriff’s
office. Furthermore, it is undisputed, as the trial judge
found, that once at the Sheriff’s office the Appellant
was read “his Constitutional rights line by line and that
[Appellant] acknowledged that he understood his
rights before making his confession.”

Resp. Ex. H; see also Wilson v. State, 191 So. 3d 537, 538-39 (Fla. 1st DCA
2016). Because the First DCA issued a written opinion, Petitioner could have
sought discretionary review with the Florida Supreme Court within thirty days
of the date the First DCA rendered the opinion. See Fla. R. App. P. 9.120(b); see
also Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988) (holding that the Florida
Supreme Court has subject-matter jurisdiction to review any decision of a
district court of appeal that expressly addresses a question of law within the
four corners of the opinion, even if the Florida Supreme Court ultimately denies
a petition for discretionary review). Petitioner did not seek review with the
Florida Supreme Court (Resp. Ex. I), and so Petitioner’s judgment and
sentences became final when the time to seek that review expired – Monday,
June 20, 2016.2 See Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (“We hold that,
for a state prisoner who does not seek review in a State’s highest court, the

2 The thirtieth day fell on Sunday, June 19, 2016, so Petitioner had until
Monday, June 20, 2019, to file a petition with the Florida Supreme Court. See Fla. R.
Jud. Admin. 2.514(a)(1)(C).
judgment becomes ‘final’ on the date that the time for seeking such review
expires.”); Spivey v. Sec’y, Fla. Dep’t of Corr., No. 3:15-cv-23-MMH-JRK, 2019

WL 10749420, at *1 (M.D. Fla. Jan. 29, 2019) (finding that the petitioner’s
judgment and sentence became final following the expiration of his time to seek
discretionary review in the Florida Supreme Court because the First DCA
issued a written opinion on his direct appeal).3 Petitioner’s one-year statute of

limitations began to run the next day, Tuesday, June 21, 2016, and then expired
one year later on Wednesday, June 21, 2017, without Petitioner filing a state
postconviction motion that would have tolled his limitations period.
After the expiration of his federal statute of limitations, Petitioner, with

help from privately retained counsel, filed with the trial court his first motion

3 The United States Supreme Court reviews “[f]inal judgments or decrees
rendered by the highest court of a State in which a decision could be had.” 28 U.S.C. §
1257(a). Unlike the facts in this case, “a district court decision rendered without
opinion or citation constitutes a decision from the highest state court empowered to
hear the cause, and appeal may be taken directly to the United States Supreme Court.”
Florida Star, 530 So. 2d at 289 n.3. Because the First DCA affirmed Petitioner’s
convictions in a written opinion “contain[ing] a statement or citation effectively
establishing [the] point of law upon which the decision rest[ed],” the Florida Supreme
Court had jurisdiction to review the opinion. See id. at 288. And “[t]he fact that review
in the highest court is discretionary is irrelevant; the litigant still must seek such
review in order to proceed to the United States Supreme Court.” Id. at 289. Petitioner
could not have petitioned for review in the United States Supreme Court until the
Florida Supreme Court — “the highest court” of the state — either denied review or
issued an opinion, and thus Petitioner is not entitled to the extra ninety-day window
to determine the date of finality. See, e.g., Pugh v. Smith, 465 F.3d 1295, 1300 (11th
Cir. 2006) (holding that the petitioner was not entitled to the 90-day period in
calculating federal habeas statute of limitations because he first did not seek review
in the Georgia Supreme Court).
for postconviction relief under Florida Rule of Criminal Procedure 3.850 on July
25, 2017. Resp. Ex. J1 at 2-66. Because there was no time left to toll, however,

Petitioner’s Rule 3.850 motion 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.”). Thus, the Petition, filed on March
1, 2020, is untimely filed by over two and a half years.
b. Equitable Tolling

Petitioner acknowledges that his Petition is untimely but asks the Court
to overlook this procedural bar because his failure to meet the one-year deadline
stemmed from his postconviction counsel’s errors. Doc. 1 at 12-16. “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)). Equitable
tolling is an extraordinary remedy that is “‘typically applied sparingly.’”
Thomas v. Att’y Gen. of Fla., 992 F.3d 1162, 1179 (11th Cir. 2021) (quoting
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)).

Petitioner contends he is entitled to equitable tolling because he hired
attorney Michael Panella to file his state Rule 3.850 motion and his federal
habeas petition but Mr. Panella miscalculated Petitioner’s federal statute of
limitations. Doc. 1 at 12-17. According to Petitioner, he retained Mr. Panella in

“June of 2016,” after his judgment and sentence became final, to pursue his
collateral relief. Id. at 15. Petitioner argues that he asked Mr. Panella if he
could immediately file a federal habeas petition, but Mr. Panella misadvised
him that he needed to first file a Rule 3.850 motion and “assured [Petitioner

and Petitioner’s mother] that though there is a federal time-limitations, it
wouldn’t accrue until all state post-conviction avenues h[ad] be[en] exhausted.”
Id. at 15. According to Petitioner, after the trial court denied his Rule 3.850
motion, he asked Mr. Panella if he could skip an appeal of the Rule 3.850 order
to pursue his federal relief and Mr. Panella again misadvised Petitioner he

must wait until after he appealed. Id. Petitioner states that Mr. Panella
repeatedly misadvised him that he had until March 1, 2020, to file a federal
habeas petition and on February 29, 2020, Petitioner finally learned that Mr.
Panella’s assurances and calculations were wrong. Id. at 16.

In support of this argument, Petitioner attaches the declaration of his
mother Jodi Chambers Wilson. Id. at 32-34. In her declaration, Ms. Wilson
states that “within a few short weeks of when the appellate courts affirmed the
conviction,” she and her husband retained Mr. Panella to pursue Petitioner’s

post-conviction relief. Id. at 32. She contends she also asked Mr. Panella to
“bypass the state courts” and seek federal relief first but Mr. Panella explained
that Petitioner could not do that. Id. She claims that Petitioner often questioned
Mr. Panella’s representation and advice, but that Mr. Panella consistently

maintained that Petitioner’s one-year statute of limitations did not begin until
his state remedies were exhausted. Id. at 32-33. According to Ms. Wilson, she
emailed Mr. Panella on February 26, 2020, about timeliness and he responded
that Petitioner’s 2254 petition was due on March 1, 2020. Id. at 33. She claims

that a few days later he advised her via telephone that his federal petition was
due on March 5, 2020. Id. She states she and Petitioner relied on Mr. Panella’s
assurances and did not question that it took him over a year to prepare
Petitioner’s Rule 3.850 motion. Id. at 33. She states she finally learned that
Petitioner’s one-year had expired when the “paralegal” who helped Petitioner

prepare his 2254 Petition advised her that the Petition was 40 days late. Id.
In consideration of the limited record before the Court, on November 4,
2022, pursuant to Rule 7(a) of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court requested Mr. Panella submit an

affidavit and relevant documents regarding Petitioner’s allegations. See Doc.
19. Mr. Panella submitted his affidavit on December 7, 2022, attesting that
Petitioner and Petitioner’s family formally retained him to pursue Petitioner’s
Rule 3.850 proceedings in state court on February 27, 2017; and they then

retained him to handle the state appeal of the trial court’s order denying the
Rule 3.850 motion on February 27, 2019. Doc. 22 at 2-3. According to Mr.
Panella, Petitioner did not retain his services to seek federal habeas relief after
his state postconviction proceedings concluded. Id. at 3. Mr. Panella explains,

however, that during his representation, Petitioner and Petitioner’s mother
“consistently inquired about [Petitioner’s] federal habeas statute of limitations”
through written letters and phone calls. Id. According to Mr. Panella, he
incorrectly advised Petitioner that, from his research, Petitioner’s federal

statute of limitations had not expired when he filed his Rule 3.850 motion or
when the First DCA resolved Petitioner’s appeal of his Rule 3.850 proceedings.
Id. at 4. Notably, Mr. Panella explains he misadvised Petitioner that his one-
year did not begin until ninety days after the First DCA affirmed his judgment
and sentence on direct appeal and that Petitioner’s state collateral proceedings

tolled his one-year. Id. at 5-6. Mr. Panella states, “Ultimately, I directly advised
[Petitioner] and his mother that he had an additional 60 days for which to file
a federal habeas claim that [Petitioner] did not have.” Id. at 6.
According to Mr. Panella, during his representation, he regularly

communicated with Petitioner and Petitioner’s mother, and sometimes
communicated with Petitioner’s father. Id. at 5. Mr. Panella also attests that
even though he was not retained to assist Petitioner with his federal habeas
petition, he communicated with Petitioner’s mother, as a courtesy, between

February and April 2020 about how Petitioner could pursue his federal habeas
claims pro se. Id. at 6. Mr. Panella attaches to his affidavit copies of several
email exchanges between him and Petitioner’s mother. Id. at 8-29. Some emails
were sent while Mr. Panella was actively representing Petitioner, in which Mr.

Panella updated Petitioner’s mother on his progress, advising that he was
reviewing Petitioner’s case, submitting records requests, conducting research,
and drafting outlines of Petitioner’s Rule 3.850 motion. Id. at 8, 9. In April 2017,
May 2017, and July 2017, Mr. Panella responded to inquiries about Petitioner’s

one-year limitations period and incorrectly advised that Petitioner was still
within his one-year because his limitations period started on August 25, 2016,
and explained that he would file the Rule 3.850 motion in time to toll the
limitations period. See id. at 9, 14, 22. Mr. Panella also attaches eleven
confirmation letters he sent to Petitioner’s prison between 2016 and 2019

scheduling legal phone calls with Petitioner. See id. at 40-50. He explains these
eleven letters are the dates for which he has documentation confirming they
communicated but clarifies that he spoke to Petitioner by phone over eleven
times and regularly communicated with him through written correspondence.

Id. at 4.
Mr. Panella also attached email communications between him and
Petitioner’s mother that occurred after Petitioner’s state court collateral
proceedings concluded. On February 26, 2020, after the First DCA issued its

opinion per curiam affirming the denial of Petitioner’s Rule 3.850 motion, Mr.
Panella responded to an email from Petitioner’s mother, advising that
Petitioner needs to file his federal habeas petition in the Middle District of
Florida by March 1, 2020. Id. at 30 He also explained that he, at no cost to

Petitioner, had “consulted with another law firm that specializes in this issue
to [get] a firm answer” about Petitioner’s one-year period and expected to hear
back from the other law firm soon. Id. at 30. The next day, February 27, 2020,
Mr. Panella emailed Petitioner’s mother a copy of Petitioner’s Rule 3.850

motion, so Petitioner could use the motion to fill out his pro se habeas petition
and copies of the approved federal habeas form and motion to proceed in forma
pauperis. Id. at 32. Petitioner initiated this action by filing his pro se petition
on March 1, 2020. See Doc. 1. On March 20, 2020, Mr. Panella answered
Petitioner’s mother’s questions about how to e-file documents with the Court,

emailed her an “edited” version of the Petition, and advised that he “prepared
a supplemental memorandum” that he also included as an attachment to the
email. Id. at 36-37. On April 22, 2020, Mr. Panella explained to Petitioner’s
mother what actions Petitioner needed to take to comply with the Court’s March

6, 2020, Order directing Petitioner to pay the filing fee or file an affidavit of
indigency (Doc. 2) and the Court’s April 16, 2020, Order to Show Cause (Doc. 9).
Id. at 39.
Now, Petitioner argues that he should not suffer the consequences of Mr.

Panella’s misadvice about his federal statute of limitations and asks that the
Court address his claims on the merits. See Doc. 1 at 14. As to the first prong of
the two-part test for equitable tolling, the Court finds that Petitioner diligently
pursued his rights. He repeatedly questioned Mr. Panella about his one-year

deadline and maintained that his federal petition needed to be timely filed. See
Holland v. Florida, 560 U.S. 631, 653 (2010) (“The diligence required for
equitable tolling purposes is reasonable diligence, not maximum feasible
diligence.”). The issue here is whether Petitioner has satisfied the second prong

of the two-part test – whether Mr. Panella’s miscalculation and incorrect advice
constitute an “extraordinary circumstance” warranting equitable tolling.
“[A]n attorney’s mistake in calculating the statute of limitations period,
even when caused by the failure to do rudimentary legal research, does not

justify equitable tolling.” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th
Cir. 2017) (citing Lawrence, 549 U.S. at 327). Although an attorney’s “sincere”
and “persistent” misadvice about a petitioner’s one-year limitation period may
amount to “gross negligence,” “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.” Cadet, 853 F.3d at 1225-27. In

determining abandonment, courts consider the fundamental principles
underlying agency law. “[T]he agency relationship between an attorney and his
client can be severed, with the result that the client is not constructively
charged with his attorney’s knowledge or actions when, for example, the

attorney actually abandons his client or purposely acts adversely to his client’s
interests or commits another serious breach of loyalty to his client.” Id. at 1229
(citations omitted). “[U]nder fundamental tenets of agency law, a principal is
not charged with an agent’s actions or knowledge when the agent is acting

adversely to the principal’s interests.” Downs v. McNeil, 520 F.3d 1311, 1320
(11th Cir. 2008) (citations omitted). “The reasoning behind the adverse interest
exception is that where an agent, though ostensibly acting in the business of
the principal, is really committing a fraud for his own benefit, he is acting
outside of the scope of his agency, and it would therefore be most unjust to

charge the principal with knowledge of it.” Cadet, 853 F.3d at 1230 (quotations
and citation omitted). This exception is narrow and “applies only where an
agent wholly disregards the principal’s interests in favor of his own interests or
the interests of a third party.” Id. at 1231 (citation omitted).

For example, in Holland,
The Court explained that, while counsel’s failure to
timely file a § 2254 petition and apparent ignorance of
the correct filing deadline “suggest[ed] simple
negligence,” there were four facts in Holland’s case that
might lead to the conclusion that counsel’s conduct
“amounted to more” than negligence: (1) counsel’s
failure to file the petition on time “despite Holland’s
many letters that repeatedly emphasized the
importance of his doing so”; (2) counsel’s failure to “do
the research necessary to find out the proper filing
date, despite Holland’s letters that went so far as to
identify the applicable legal rules”; (3) counsel’s failure
to inform Holland that the Florida Supreme Court had
affirmed the denial of his state post-conviction motion,
“again despite Holland’s many pleas for that
information”; and (4) counsel’s failure to communicate
with Holland during the two-and-a-half year period in
which his state motion was pending before the Florida
Supreme Court, “despite various pleas from Holland
that [counsel] respond to his letters.”

Cadet, 853 F3d at 1223 (quoting Holland, 560 U.S. at 636-38, 652). Holland had
also tried to discharge his attorney, complaining to the Florida Supreme Court
that there had been “a complete breakdown in communications” and counsel
had “abandoned” him, but the state court denied Holland’s requests. Holland,
560 U.S. at 637. In Justice Alito’s concurring opinion in Holland, he explained

that Holland was likely entitled to equitable tolling not because his attorney
acted with gross negligence in missing the one-year deadline, but because the
attorney effectively abandoned him, “as evidenced by counsel’s near-total
failure to communicate with petitioner or to respond to petitioner’s many

inquiries and requests over a period of several years.” Holland, 560 U.S. at 659.
According to Justice Alito, “[c]ommon sense dictates that a litigant cannot be
held constructively responsible for the conduct of an attorney who is not
operating as his agent in any meaningful sense of the word.” Id.; see also Maples

v. Thomas, 565 U.S. 266 (2012) (later adopting Justice Alito’s view that “under
agency principles, a client cannot be charged with acts or omissions of an
attorney who has abandoned him.”).
Here, Petitioner cites Holland to demonstrate that Mr. Panella not only

acted negligent but he, like the attorney in Holland, effectively abandoned
Petitioner. Doc. 1 at 14. But the record evidence does not suggest that Mr.
Panella’s conduct amounted to the “abandonment” contemplated in Holland
and Cadet. Mr. Panella’s consistent misadvice about Petitioner’s filing deadline

and his failure to conduct adequate research into the matter likely amounted to
gross negligence. Mr. Panella now admits that he should not have waited so
long to file Petitioner’s Rule 3.850 motion as his delay resulted in the expiration
of Petitioner’s one-year limitations period without filing a postconviction motion
that would have tolled the time. But while Mr. Panella should have learned this

much sooner, his late comprehension does not mean that Mr. Panella “was
acting to promote his own or a third party’s interest at the expense of
[Petitioner’s] interests.” Cadet, 853 F.3d at 1233-34.
To that end, Mr. Panella’s error does not mean he abandoned or

effectively abandoned Petitioner. There is no evidence that Mr. Panella failed
to respond to Petitioner’s inquires or keep him informed of developments in his
case. He did not desert Petitioner or spend weeks, months, or years failing to
communicate with him. And Petitioner did not unsuccessfully request to

discharge Mr. Panella as counsel because of any breakdown in communication.
Instead, Mr. Panella maintained communication with Petitioner and
Petitioner’s family throughout Petitioner’s state collateral proceeding; and
afterwards, he provided meaningful responses to help Petitioner pursue his

federal claims pro se. While Petitioner’s mother consistently questioned the
accuracy of Mr. Panella’s advice about Petitioner’s one-year and even
threatened to hire another attorney because Mr. Panella was taking too long to
file Petitioner’s Rule 3.850 motion, Mr. Panella always responded to her

concerns and repeatedly advised that he cared about Petitioner’s case; but also
conveyed his understanding that if she felt Petitioner needed to hire another
attorney, he would do everything required to smoothly transfer the case to a
new attorney. Doc. 22 at 14. Thus, because Mr. Panella’s consistent misadvice
about the filing deadline “was [at most] the product of [Mr. Panella’s] good faith

but negligent or grossly negligent misunderstanding of the law,” Petitioner has
not shown that Mr. Panella’s actions amounted to an “extraordinary
circumstance” warranting equitable tolling. See Cadet, 853 F.3d at 1237.
Indeed, this is not the first time this Court has considered a petitioner’s

argument that their postconviction attorney’s misconduct led to the untimely
filing of a § 2254 petition. See Thomas v. Att’y Gen. of Fla., No. 3:03-cv-237-J-
32PDB, 2018 WL 733631, at *1 (Fla. M.D. Fla. Feb. 6, 2018), aff’d, Thomas, 992
F.3d at 1167. In Thomas, the parties stipulated that postconviction counsel filed

petitioner’s § 2254 petition nearly a year late “as part of a deliberate strategy
to challenge the constitutionality of AEDPA’s statute of limitations because
[counsel] was interest[ed] in invalidating AEDPA’s statute of limitations
herself.” Id. at *11. This Court, and ultimately the Eleventh Circuit, determined

that those facts amounted to the type of rare “extraordinary circumstance”
contemplated by both Supreme Court and Eleventh Circuit precedent. Id. at
*21. Here, however, unlike counsel in Thomas, Mr. Panella did not abandon his
duty of loyalty to Petitioner, so he could promote his own interests or the
interests of others. And thus, the Court is obligated to find that this case is
untimely filed.4

c. Actual Innocence
Petitioner also tries to overcome the procedural bar by arguing the claims
in his Petition and Amended Petition “encompass the actual innocence of
Petitioner.” Doc. 1 at 16. “[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 show 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”).

4 It was cases such as these, where the well-intentioned lawyer gives improper
legal advice regarding the federal habeas deadline, that led to the creation of the
Capital Habeas Unit in the Middle District of Florida. Here, Petitioner and his family,
who retained counsel for collateral review, deserved better.
Here, Petitioner raises three claims for relief. See generally Doc. 7. In
Ground One, he argues trial counsel’s ineffectiveness contributed to the trial

court’s denial of his motion to suppress his coerced confession, trial counsel
conducted no meaningful pretrial investigation, and trial counsel failed to
adequately investigate and cross-examine co-defendant Aaron Nolley. See Doc.
1 at 18-25. In Ground Two, Petitioner asserts that the state committed Giglio5

and Brady6 violations when it allowed co-defendant Nolley to present false
testimony about the sentence he faced and failed to disclose Nolley’s substantial
assistance agreement, and that his trial counsel was ineffective for failing to
move for a new trial based on this misconduct. Id. at 25-27. And in Ground

Three, Petitioner argues that the cumulative effect of trial counsel’s errors
violated his Sixth Amendment rights. Id. at 28-30.
During his direct appeal, Petitioner challenged the trial court’s denial of
his pretrial motion to suppress his coerced confession. Resp. Ex. D. The First

DCA issued a written opinion affirming Petitioner’s judgment and convictions,
finding that the trial court did not err in denying Petitioner’s motion to
suppress. Resp. Ex. H. Petitioner then raised all the current claims before this
Court in his Rule 3.850 motion. Resp. Ex. J1 at 2. In a thorough seventy-five-

5 Giglio v. United States, 405 U.S. 150 (1972).

6 Brady v. Maryland, 373 U.S. 83 (1963).
page order, the trial court summarized all the evidence adduced trial and
summarily denied these claims on the merits. See generally id. at 88-162.

Petitioner appealed and the First DCA per curiam affirmed the trial court’s
denial without a written opinion. Resp. Ex. O.
Petitioner now relies on the same issues to support his claim of actual
innocence. But he has not produced exculpatory evidence, trustworthy

eyewitness accounts, or critical physical evidence not previously available. 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. Thus, the Court rejects Petitioner’s actual

innocence argument. The case is due to be dismissed as untimely.
Accordingly, it is
ORDERED AND ADJUDGED:
1. The Amended Petition (Doc. 7) 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 20th day of
January, 20238.

□ Cirmotheg Corrig oN
Ww TIMOTHY J. CORRIGAN
United States District Judge

Jax-7
C: Kenneth A. Wilson, III, #J44776
Counsel of record

7 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.
23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111844. Public record. Not legal advice.