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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RAIMUNDO ANTONIO HOGAN,

Petitioner,

v. Case No. 3:21-cv-958-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Raimundo Antonio Hogan, a former inmate of the Florida

penal system,1 initiated this action on September 27, 2021,2 by filing a Petition

for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).3 In the

Petition, Hogan challenges a 1995 state court (Duval County, Florida)

judgment of conviction for eight counts of armed robbery and eight counts of

possession of a firearm by a convicted felon, as well as charges of aggravated

1 Hogan is presently in federal custody. See https://www.bop.gov/inmateloc/

(last visited April 16, 2024).

2 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

3 For all pleadings and exhibits filed in this case, the Court cites to the

document and page numbers as assigned by the Court’s Electronic Case Filing

System.

assault, armed carjacking, attempted armed robbery, forgery, and uttering a

forged instrument. He raises one ground for relief. See Petition at 5-7.

Respondents submitted a memorandum in opposition to the Petition, arguing

that the action is untimely. See Motion to Dismiss Petition for Writ of Habeas

Corpus (Response; Doc. 5). They also submitted exhibits. See Docs. 5-1 through

5-12. Hogan filed a brief in reply. See Reply (Doc. 7).

II. Procedural History

On September 13, 1994, Hogan pled guilty in Duval County Case

Number 1994-CF-4586 to twenty-one offenses: eight counts of armed robbery,

eight counts of possession of a firearm by a convicted felon, and charges of

aggravated assault, armed carjacking, attempted armed robbery, forgery, and

uttering a forged instrument. See Doc. 5-3; Doc. 5-5 at 1-3. On June 30, 1995,

the trial court adjudicated Hogan guilty of these offenses and sentenced him to

a total of twenty-five years imprisonment, with a minimum mandatory term of

twelve years, in accordance with the terms of Hogan’s written plea and

negotiated sentence agreement. See Doc. 5-5. According to the Florida

Department of Corrections’ (FDOC) website, Hogan served his sentences and

was released from FDOC custody on November 21, 2014.4

4 See Corrections Offender Network, Florida Department of Corrections,

available at https://fdc.myflorida.com/OffenderSearch/Search.aspx (last visited Apr.

16, 2024).

III. Analysis

A United States district court has jurisdiction to entertain a § 2254

petition only if the petitioner is “in custody pursuant to the judgment of a State

court only on the ground that he is in custody in violation of the Constitution

or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added).

The “in custody” requirement is jurisdictional but is liberally construed.

Howard v. Warden, 776 F.3d 772, 775 (11th Cir. 2015). The Supreme Court

has interpreted the “in custody” requirement to mean “that the habeas

petitioner [must] be ‘in custody’ under the conviction or sentence under attack

at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989).

“Accordingly, where a petitioner’s sentence has fully expired, he does not meet

the ‘in custody’ requirement, and the mere possibility that the prior conviction

will be used to enhance a sentence imposed for any subsequent crime is not

enough to render him ‘in custody.’” Birotte v. Sec’y for Dep’t of Corr., 236 F.

App’x 577, 578 (11th Cir. 2007) (citing Maleng, 490 U.S. at 492).5 “[O]nce the

sentence imposed for a conviction has completely expired, the collateral

consequences of that conviction are not themselves sufficient to render an

5 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

individual ‘in custody’ for the purposes of a habeas attack upon it.” Id. Rather,

the “in custody” requisite “still requires that the state exercise some control

over the petitioner.” Howard, 776 F.3d at 775.

Here, the 1995 convictions that Hogan challenges expired in November

2014 when he was released from custody. Hogan filed the instant Petition over

six years later. Because Hogan is no longer serving a sentence for his 1995

convictions, he cannot bring a federal habeas action attacking them. Although

Hogan is now in federal custody serving a sentence for a federal felon in

possession conviction, see United States v. Hogan, No. 3:16-cr-139-TJC-LLL

(M.D. Fla. Oct. 27, 2017),6 his current confinement is insufficient to render him

“in custody” for purposes of a § 2254 petition challenging his expired 1995

convictions. See Alaska v. Wright, 593 U.S. 152, 154 (2021) (an inmate serving

a federal sentence is not “in custody pursuant to the judgment of a State court”

under § 2254(a) simply because a state conviction served as a predicate for his

federal conviction) (quoting 28 U.S.C. § 2254(a)); see also Maleng, 490 U.S. at

492 (holding the mere possibility that a fully served sentence might be used to

enhance a new sentence did not render petitioner “in custody” for habeas

6 The Court takes judicial notice of Hogan’s state and federal court dockets. See

Fed. R. Evid. 201(b)(2) (a court may “judicially notice a fact that is not subject to

reasonable dispute because it . . . can be accurately and readily determined from

sources whose accuracy cannot be reasonably questioned”); Paez v. Sec’y, Fla. Dep’t

of Corr., 947 F.3d 649, 651 (11th Cir. 2020) (“State court records of an inmate’s

postconviction proceedings generally satisfy [the Rule 201(b)(2)] standard.”).

purposes). Therefore, the Petition is due to be denied as Hogan is no longer in

custody on the challenged convictions and he suffers no present restraint from

the convictions he seeks to challenge. Boone v. Warden, Att’y Gen., 800 F.

App’x 739, 740 (11th Cir. 2020) (citing Garlotte v. Fordice, 515 U.S. 39, 45

(1995)).

Moreover, the Court finds that the Petition is untimely. The

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a

one-year statute of limitations on petitions for writ of habeas corpus.

Specifically, 28 U.S.C. § 2244 provides:

(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). As Hogan’s convictions and sentences became final after

the effective date of AEDPA, his Petition is subject to the one-year limitations

period. See 28 U.S.C. § 2244(d)(1).

The following procedural history is relevant to the one-year limitations

issue. On January 29, 1997, the First District Court of Appeal dismissed

Hogan’s direct appeal of his 1995 convictions.7 See Raimundo Anthony Hogan

a/k/a Darius Brown v. State of Florida, No. 1D95-2769 (Fla. 1st DCA Jan. 29,

1997). Hogan filed postconviction motions in 1997 and 1998, which the state

court denied.8 He did not file the instant Petition until September 27, 2021,

7 On direct appeal, Hogan’s appellate counsel filed a brief under Anders v.

California, 386 U.S. 738 (1967), and moved to withdraw. See

https://onlinedocketsdca.flcourts.org/ (last visited Apr. 16, 2024). The First DCA

granted counsel’s motion to withdraw and gave Hogan an opportunity to file a pro se

brief. Id. Hogan did not file a pro se brief, and the State thereafter filed an answer

brief. Id. According to the docket, the records pertaining to Hogan’s direct appeal were

destroyed in 2002. Id.

8 See State of Florida v. Raimundo Antonio Hogan, No. 1994-CF-4586,

available at https://core.duvalclerk.com/CoreCms.aspx?mode=PublicAccess (Order

Denying Motion to Vacate Judgment and Sentence, filed January 16, 1998, and Order

Denying Motion to Vacate Judgment and Sentence (Rule 3.850), filed July 2, 1998).

over twenty years after the one-year limitations period expired. Although the

record shows that Hogan pursued state postconviction relief in 2020, see Doc.

5-7 at 4-13, those filings did not revive the already-expired limitations period.

See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“A state-court

petition . . . that is filed following the expiration of the limitations period cannot

toll that period because there is no period remaining to be tolled.”). Therefore,

the Petition is untimely.

Further, Hogan has failed to establish that equitable tolling of the

limitations period is warranted.9 In the Reply, Hogan appears to assert that a

finding of untimeliness cannot be made because the records pertaining to his

direct appeal were destroyed in 2002. See Reply at 1. But, the state court

docket and the records that are still available plainly establish that the

Petition was filed long after the one-year limitations period expired. To the

extent Hogan asserts in the Reply that he can establish cause for his

untimeliness under Martinez v. Ryan, 566 U.S. 1 (2012), see Reply at 2, his

reliance on Martinez is misplaced. In Martinez, the Court addressed whether

9 “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 has established a two-prong

test for the application of equitable tolling, stating that 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. Florida, 560

U.S. 631, 649 (2010) (quotations and citation omitted); Cadet v. Fla. Dep’t of Corr.,

853 F.3d 1216, 1221 (11th Cir. 2017).

ineffective assistance of counsel can constitute cause for procedural default; it

neither addressed equitable tolling nor AEDPA’s statute of limitations. While

the federal limitations period is subject to equitable tolling in certain

circumstances, the Eleventh Circuit has rejected the argument that Martinez

provides a basis for equitably tolling AEDPA’s statute of limitations. See

Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014) (holding that “the

Martinez rule explicitly relates to excusing a procedural default of ineffective-

trial-counsel claims and does not apply to AEDPA’s statute of limitations or

the tolling of that period”); Patrick v. Warden, 828 F. App’x 518, 522 (11th Cir.

2020) (“Martinez has nothing to do with equitable tolling—that case is about

procedural default, which addresses when state procedural rules bar federal

courts from considering certain habeas claims.”) (citations omitted).

Because Hogan has not shown a justifiable reason why the dictates of

the one-year limitations period should not be applied to him, the Petition is

also due to be dismissed as untimely. If Hogan satisfied the “in custody”

requirement, the Court would dismiss this case with prejudice pursuant to 28

U.S.C. § 2244(d). However, because he was not “in custody” at the time he filed

the Petition, the Court lacks subject matter jurisdiction over this action. As

such, the Petition is due to be dismissed without prejudice.

IV. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Hogan seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make

this substantial showing, Hogan “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)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record, the Court will deny a certificate of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) and this case are DISMISSED WITHOUT

PREJUDICE.

2. The Clerk of the Court shall enter judgment dismissing this case

without prejudice, terminate any pending motions, and close this case.

3. If Hogan appeals the dismissal of the case, 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 26th day of

April, 2024.

United States District Judge

Jax-10 4/18

C: Raimundo Antonio Hogan, #67735-018

Counsel of record

10