Lander v. Secretary, Department of Corrections (Pinellas County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MICHAEL LANDER,

Applicant,

v. CASE NO. 8:21-cv-401-SDM-SPF

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

In an amended application (Doc. 10) Lander applies under 28 U.S.C. § 2254 for

the writ of habeas corpus and challenges his convictions for (1) two counts of sexual

battery involving a victim between the ages of twelve and eighteen by a person with

familial or custodial authority and (2) two counts of lewd or lascivious battery, for

which convictions Lander is imprisoned for life. The respondent argues (Doc. 15) that

the application is time-barred. Lander both opposes (Docs. 16 and 18) the respondent’s

determination of untimeliness and 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.” Lander’s conviction became final

on June 28, 2016.1 However, eleven days earlier Lander had moved under state

Rule 3.850 for post-conviction relief, which precluded the start of the limitation, and

the limitation did not start until the day after the mandate issued on January 19, 2018.

(Respondent’s Exhibits 8 and 17) Consequently, absent tolling for a timely state post-

conviction proceeding, Lander’s one-year deadline was January 19, 2019. Lander

asserts entitlement to tolling for two more motions under Rule 3.850 filed in the circuit

court and a petition for the writ of habeas corpus filed in the district court.

Untimeliness:

Lander let 74 days elapse before he filed a petition in the state district court of

appeal alleging that appellate counsel rendered ineffective assistance, which petition

tolled the limitation. (Doc. 19) Tolling continued until July 15, 2019, after rehearing

was denied and the case was closed. (Respondent’s Exhibit 22) Lander had 291 days

of his limitation remaining (365 − 74 = 291). Consequently, Lander’s federal one-year

deadline was March 30, 2020 (July 15, 2019 + 291 days = March 30, 2020). Lander’s

1 Lander’s direct appeal concluded on March 30, 2016, upon the denial of his request for a

written opinion. (Respondent’s Exhibit 7) The convictions became final after ninety days, the time

allowed for petitioning for the writ of certiorari. 28 U.S.C. § 2244(d)(1)(A). See Bond v. Moore, 309 F.3d

770 (11th Cir. 2002), and Jackson v. Sec’y, Dep’t of Corr., 292 F.3d 1347 (11th Cir. 2002).

present counsel untimely filed the pending application nearly a year later, on February

20, 2021.

Although on December 28, 2019 –– three months before the March 30th federal

deadline — Lander filed a second motion under Rule 3.850 for post-conviction relief

(Respondent’s Exhibit 26), the motion afforded Lander no tolling because the circuit

court denied the motion as untimely under Florida’s two-year limitation for moving

under Rule 3.850. (Respondent’s Exhibit 27)2 Section 2244(d)(2) permits tolling

only for a “properly filed application for state post-conviction or other collateral

review . . . .” As Artuz v. Bennett, 531 U.S. 4, 8 (2000), instructs, “an application is

‘properly filed’ when its delivery and acceptance are in compliance with the applicable

laws and rules governing filings. These usually prescribe, for example, the form of the

document, the time limits upon its delivery, the court and office in which it must be

lodged, and the requisite filing fee.” As a consequence, only an application timely

filed under state law tolls the federal one-year limitation. “When a post-conviction

petition is untimely under state law, ‘that [is] the end of the matter’ for purposes of

§ 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (brackets original) (quoting

Carey v. Saffold, 536 U.S. 214, 226 (2002)). See also Allen v. Siebert, 552 U.S. 3, 7 (2007)

(“Because Siebert’s petition for state post-conviction relief was rejected as untimely by

the Alabama courts, it was not ‘properly filed’ under § 2244(d)(2). Accordingly, he was

not entitled to tolling of AEDPA’s 1-year statute of limitations.”); Gorby v. McNeil, 530

2 The circuit court’s decision was affirmed. (Respondent’s Exhibit 30)

F.3d 1363, 1366 (11th Cir. 2008) (applying Pace); and Webster v. Moore, 199 F.3d 1256,

1259 (11th Cir. 2000) (“We therefore conclude that the state court’s holding that

Webster’s Rule 3.850 petition was time-barred is due deference.”). Because Lander’s

second state Rule 3.850 motion for post-conviction relief failed to toll the limitation,

Lander’s one-year deadline to file his federal petition remained on March 30, 2020.

Although on March 25, 2020 –– five days before the federal deadline –– Lander

filed a third motion under Rule 3.850 for post-conviction relief (Respondent’s Exhibit

32), the motion afforded Lander no tolling because the circuit court denied the motion

as untimely under Florida’s two-year limitation for moving under Rule 3.850.

(Respondent’s Exhibit 33)3 Because Lander’s third state Rule 3.850 motion for

post-conviction relief failed to toll the limitation, March 30, 2020, remained as Lander’s

one-year deadline to file his federal petition. Lander’s application under Section 2254,

filed on February 20, 2021, is untimely.

Lander’s argument that the state courts were wrong to apply Florida’s two-year

limitation is beyond a federal court’s review. Generally, a federal court is bound by a

state court’s interpretation of state law. “[A] state court’s interpretation of state law . . .

binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76

(2005). See also Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1355 (11th Cir. 2005) (“It

is a fundamental principle that state courts are the final arbiters of state law, and federal

courts should not second-guess them on such matters.”) (internal quotation marks

3 The circuit court’s decision was affirmed. (Respondent’s Exhibit 36)

omitted); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“[S]tate courts are the ultimate

expositors of state law” and federal courts must abide by their rulings on matters of

state law). This district court is bound by the state courts’ interpretations of state law,

by the Eleventh Circuit Court of Appeals’ direction in Gorby to defer to a state court’s

application of state law, and by the Supreme Court’s admonition in Pace that a state

court’s determination of timeliness under state law controls in federal court.

Equitable Tolling:

Lander asserts entitlement to equitable tolling of the limitation. “[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)).

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). Lander 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, under Holland, 560 U.S. at 653 (internal quotations and

citations omitted), “[t]he diligence required for equitable tolling purposes is ‘reasonable

diligence,’ not ‘maximum feasible diligence,’ ” and under Pace, 544 U.S. at 419, an

applicant’s “lack of diligence precludes equity’s operation.” To satisfy the second

requirement, Lander 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).

The district court both agrees with Lander’s assertion that he used “extraordinary

efforts” to present his claims to the state courts and determines that Lander clearly

meets the “due diligence” requirement for equitable tolling: (1) Lander, through

original trial counsel, filed his first Rule 3.850 motion before his federal limitation

started; (2) filed his pro se petition alleging the ineffective assistance of appellate counsel

seventy-four days after the first Rule 3.850 was final; (3) through retained counsel filed

his second and third Rule 3.850 motions before the federal one-year deadline; and

(4) through the same retained counsel filed his Section 2254 application before the

mandate issued on the third Rule 3.850 proceeding. As determined above, the federal

application is untimely because the second and third Rule 3.850 motions failed to toll

the federal limitation.

Lander extensively argues his due diligence, but his asserted “extraordinary

diligence” alone is insufficient to qualify for equitable tolling. As explained above,

Lander must also meet the extraordinary circumstance requirement, which he fails to

meet because he fails to show that an “extraordinary circumstance” was both beyond

his control and unavoidable even with diligence.

Lander must show that the “extraordinary circumstance” was the cause of his

untimely filing. An applicant “must also show a nexus between the extraordinary

circumstance and the late filing of his federal habeas petitions, see San Martin v. McNeil,

633 F.3d 1257, 1270–71 (11th Cir. 2011), and it is often the case that causation is more

difficult for a petitioner to prove if an extraordinary circumstance occurs early in the

statute of limitations period.” Bell v. Florida Atty. Gen., 461 F. App’x 843, 849 (11th Cir.

2012). See also Fox v. McNeil, 373 F. App’x 32, 34 (11th Cir. 2010) (stating that the

applicant must “establish a causal link between his claims of mental incompetence and

the untimely filing of his federal habeas corpus petition.”). 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.”).

Although not directly stated as a basis for an extraordinary circumstance, Lander

asserts that he is not accountable for the first Rule 3.850 proceeding because the motion

was filed by trial counsel and alleged only claims based on newly discovered evidence.

Lander argues that, because the motion was filed by trial counsel, Lander was

precluded from alleging the claims of ineffective assistance of trial counsel that Lander

raised through retained counsel in the second and third Rule 3.850 proceedings.

Nothing in that first proceeding can qualify as an “extraordinary circumstance” to

support equitable tolling of the limitation because, as outlined above, the one-year

limitation did not start until after that first Rule 3.850 proceeding ended, that is, a

limitation is not subject to tolling if the limitation is not running.

The federal application is untimely because retained counsel –– who filed the

second and third Rule 3.850 motions before the federal deadline –– chose to appeal the

state court’s untimeliness ruling and not file the federal application. In his reply,

Lander asserts that he faced two options, (1) “bypass” presenting his ineffective

assistance of counsel claims to the state courts –– which claims he presented in the

second and third Rule 3.850 motions –– only to have the claims dismissed from the

federal action as unexhausted or (2) “act judiciously and reasonably” by appealing the

dismissal of the second and third Rule 3.850 motions as untimely. But Lander had a

third option: appeal the state court’s ruling and simultaneously file the federal

application to preserve Lander’s rights to federal review. Lander posits that appealing

and immediately filing his federal application “would have inevitably drawn charges of

sham appeal and purposeful delay.” (Doc. 16 at 17) But this third option occurs with

some frequency, resulting in a stay of the federal action until exhaustion is complete,

allowing the state courts an opportunity to address the claims, and preserving the

opportunity for federal review in a timely filed application.4

Because he shows no “extraordinary circumstance” that precluded his timely

filing the federal application, Lander is not entitled to equitable tolling of the federal

limitation. Consequently, the district court must dismiss the application as time-barred.

Lander’s amended application (Doc. 10) is DISMISSED AS TIME-BARRED.

The clerk must enter a judgment against Lander and CLOSE this case.

4 Lander recognizes that a federal court “has discretion to adopt a procedure of ‘stay and

abeyance’ . . . while the petitioner returns to the state court to exhaust his previously unexhausted

claims . . . .” (Doc. 16 at 17)

DENIAL OF BOTH

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL JN FORMA PAUPERIS

Lander 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,

Lander 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, Lander 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 is

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

pauperts.

ORDERED in Tampa, Florida, on January 30, 2024.

Andon araglg

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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