Ballone v. Secretary, Department of Corrections (Polk County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES BALLONE,

Applicant,

v. CASE NO. 8:20-cv-2537-SDM-UAM

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Ballone applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)

and challenges his convictions for a count of capital sexual battery involving a victim

less than twelve, two counts of lewd molestation, a count of showing obscene material

to a minor, and 263 counts of possession of child pornography, for which Ballone

serves two consecutive sentences of life imprisonment, concurrent terms of ten years’

imprisonment, a consecutive term of fifteen years’ imprisonment, and a consecutive

term of five years’ imprisonment. The convictions and sentences accord with Ballone’s

“open plea,” that is, his plea of “no contest” with no plea agreement from the state.

The respondent argues (Doc. 12) that the application is time-barred. In

opposition (Doc. 16) Ballone asserts entitlement to equitable tolling of the limitation.

Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1)(A),

“[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 . . . the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review . . . .”

Additionally, under 28 U.S.C. § 2244(d)(2), “[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 shall not be counted toward any period of

limitation under this subsection.”

Ballone was sentenced on December 30, 2016, and his conviction became final

on January 30, 2017, upon the expiration of the thirty days allowed for appeal.*

Armstrong v. State, 148 So. 3d 127, 128 (2nd DCA 2014) (“When no appeal is filed,

finality occurs thirty days after rendition of the judgment and sentence, which is the

date on which the time for filing the notice of appeal expires.”). Absent tolling for a

timely post-conviction application in state court, the federal limitation barred his claim

one year later on January 30, 2018. Ballone let 290 days elapse before he moved under

state Rule 3.850 for post-conviction relief on November 16, 2017. Tolling continued

until the mandate issued on July 24, 2020. Ballone had 75 days remaining (365 − 290 =

75). Because Ballone filed no other post-conviction proceeding to toll the limitation,

Ballone’s federal one-year deadline was October 7, 2020 (July 24, 2020 + 75 days =

October 7, 2020). Ballone dated his federal application October 26, 2020, nineteen days

late.

* Because the thirtieth day was Sunday, January 29, 2017, under Rule 6(a)(1)(C), Federal Rules

of Civil procedure, the deadline is extended to “the next day that is not a Saturday, Sunday, or legal

holiday.”

In reply (Doc. 16) Ballone recognizes that his application is more than one year

after his conviction became final. Ballone asserts entitlement to equitable tolling. The

one-year limitation established in Section 2244(d) is not jurisdictional and, as a

consequence, “is subject to equitable tolling in appropriate cases.” Holland v. Florida,

560 U.S. 631, 645 (2010). “Generally, a litigant seeking equitable tolling bears the

burden of establishing two elements: (1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005). See Jones v. United States, 304 F.3d 1035, 1040 (11th Cir.

2002). Ballone must meet both requirements, and he controls the first requirement —

due diligence — but not the second requirement — extraordinary circumstances. The

failure to meet either requirement precludes equitable tolling. For the first requirement,

“[t]he diligence required for equitable tolling purposes is ‘reasonable diligence,’ not

‘maximum feasible diligence,’” Holland, 560 U.S. at 653 (internal quotations and

citations omitted), and an applicant’s “lack of diligence precludes equity’s operation.”

Pace, 544 U.S. at 419. To satisfy the second requirement, Ballone must show

extraordinary circumstances both beyond his control and unavoidable even with

diligence. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). See cases

collected in Harper v. Ercole, 648 F.3d 132, 137 (2nd Cir. 2011) (“To secure equitable

tolling, it is not enough for a party to show that he experienced extraordinary

circumstances. He must further demonstrate that those circumstances caused him to

miss the original filing deadline.”). “[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) (quoting Hunter v. Ferrell,

587 F.3d 1304, 1308 (11th Cir. 2009)).

Ballone represents (1) that the 290-day delay in filing his motion for post-

conviction relief was caused by his institutional transfers and his difficulty finding an

inmate law clerk to assist him and (2) that the more than 75-day delay in filing his

Section 2254 application was caused both by his becoming sick from the COVID virus

and by an institutional lock-down because of the pandemic. Ballone represents that he

received a “2254 package of legal materials” after requesting the material when the law

library re-opened at the beginning of October, 2020 –– as determined above, the federal

one-year deadline was October 7, 2020.

An “extraordinary circumstance” justifying equitable tolling is shown by

neither an allegedly deficient prison law library, Helton v. Sec’y, Dep’t of Corr., 259 F.3d

1310, 1313 14 (11th Cir. 2001), nor limited or restricted access to a prison law library.

Miller v. Florida, 307 F. App’x 366, 367 68 (11th Cir. 2009) (“[E]ven restricted access to

a law library, lock-downs, and solitary confinement do not qualify as [extra]ordinary

circumstances warranting equitable tolling.”). A transfer to another institution which

causes a temporary denial of access to legal papers is not an “extraordinary

circumstance.” Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir. 2004) (“Periods

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

circumstances’ in which equitable tolling is appropriate.”) (citing Akins v. United States,

204 F.3d 1086, 1089–90 (11th Cir. 2000)).

Ballone admittedly knew that his deadline to file his federal application was

limited yet, contrary to exercising due diligence, he waited until after the mandate

issued on his post-conviction appeal before he requested the material necessary to file

his federal application. Ballone fails to explain his not requesting the necessary

materials to begin working on his application before the mandate issued on his post-

conviction appeal. Under the controlling law discussed above, Ballone fails to meet the

“due diligence” requirement for entitlement to equitable tolling.

Ballone’s application (Doc. 1) is DISMISSED AS TIME-BARRED. The clerk

must enter a judgment against Ballone and CLOSE this case.

DENIAL OF BOTH

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Ballone is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s

denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first

issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” To merit a COA,

Ballone must show that reasonable jurists would find debatable both (1) the merits of

the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926,

935 (11th Cir 2001). Because the application is clearly time-barred, Ballone is entitled

to neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis 1s

DENIED. Ballone must obtain permission from the circuit court to appeal in forma

pauperts.

ORDERED in Tampa, Florida, on November 30, 2023.

STEVEND.MERRYDAY □□

UNITED STATES DISTRICT JUDGE

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