Cuffy v. Secretary of Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 18-62463-CV-ALTMAN

JOHNSON CUFFY,

Petitioner,

vs.

MARK S. INCH,

Respondent.

___________________________/

ORDER

The Petitioner, Johnson Cuffy, has brought a pro se Petition for Writ of Habeas Corpus under

28 U.S.C. § 2254, challenging his 2012 conviction and sentence. See Petition [ECF No. 1]. The Court

referred the Petition to United States Magistrate Judge Lisette M. Reid, who issued a Report and

Recommendation. See Report [ECF No. 61].1 In her Report, the Magistrate Judge recommended that

the Petition be dismissed as time-barred. Id. at 24. The Petitioner timely objected to certain portions of

the Report. See Objections [ECF No. 62]. For the reasons set out below, the Court ADOPTS the

Report in part and DENIES the Petition.

BACKGROUND

In October of 2012, a Florida jury convicted the Petitioner of eight separate felonies, which

included one count of racketeering, one count of conspiracy to commit racketeering, and six counts

of grand theft. See Judgment [ECF No. 19-1] at 60–71. For these crimes, the state court sentenced the

1 This is the third such report. The first was vacated when the Court granted the Petitioner’s “Motion

for Rehearing/Clarification.” See First Report [ECF No. 5]; Order Adopting First Report [ECF No.

8]; Order Granting Motion for Rehearing/Clarification [ECF No. 14]. The Magistrate Judge vacated

the Second Report. See Second Report [ECF No. 42]; Paperless Order Vacating Second Report [ECF

No. 46]. For purposes of this Order, though—unless otherwise noted—we refer to the Third Report.

Petitioner to 30 years in prison.2 See Sentencing Order [ECF No. 19-1] at 76–94. The Petitioner timely

appealed to the Fourth District Court of Appeal (“Fourth DCA”), see Fourth DCA Docket Sheet

[ECF No. 19-1] at 101, which affirmed the conviction and sentence on February 18, 2016, see Cuffy v.

State, 186 So. 3d 1037 (Fla. 4th DCA 2016).3 The Fourth DCA’s mandate issued on March 18, 2016.

See Direct Appeal Mandate [ECF No. 19-1] at 291. The Petitioner did not pursue his claim in either

the Florida Supreme Court or the Supreme Court of the United States. See Report at 4–5.

On March 24, 2016, approximately one month after the Fourth DCA’s decision, the Petitioner

filed his first Rule 3.850 Motion—which he promptly amended and then supplemented. See 2016 Rule

3.850 Motion (“First Rule 3.850 Motion”) [ECF No. 19-1] at 295, 308, 369. The state trial court

incorporated the State’s response, denied the motion as procedurally barred, and found that “all of

the claims are merely rewordings of arguments that Defendant raised or should have raised on direct

appeal.” Order Denying First Rule 3.850 Motion [ECF No. 19-1] at 477. The Petitioner appealed, see

id. at 480, and the Fourth DCA summarily affirmed, see Cuffy v. State, 230 So. 3d 858 (Fla. 4th DCA

2017). The Fourth DCA’s mandate on this first 3.850 appeal issued on May 12, 2017. See 2017 Fourth

DCA Mandate [ECF No. 19-1] at 510.

Twenty-five days later, on June 6, 2017, the Petitioner filed his second Rule 3.850 Motion.4 See

2017 Rule 3.850 Motion (“Second Rule 3.850 Motion”) [ECF No. 19-1] at 535. On June 16, 2017, the

2 The sentence technically included three 30-year and five 15-year sentences—all to run concurrently.

3 This four-year delay was (somehow) everyone’s fault. First, the court reporter sought—and

received—two extensions to file the trial transcripts. See Fourth DCA Docket Sheet [ECF No. 19-1]

at 101. Then, the Petitioner received two 90-day extensions to file his initial brief. Id. But, when those

180 days elapsed, the Petitioner still failed to produce a brief, so the Fourth DCA issued an order to

show cause, which finally impelled him to submit his opening brief—now one year after the transcripts

were filed. Id. Next, the State sought—and received—two extensions of time to respond. Id. But, soon

after responding, the State withdrew its response and submitted an amended brief. Id. Finally, the

Fourth DCA gave the Petitioner two extensions of time to reply. Id.

4 To be clear: this is the day on which the Petitioner signed the motion—not the date on which the

motion was received and docketed. “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing

is deemed filed on the date it is delivered to prison authorities for mailing.” Williams v. McNeil, 557

state court dismissed the motion as successive and, alternatively, denied it on the merits. See Order

Denying Second Rule 3.850 Motion [ECF No. 19-1] at 546–57 (“Even if it were not procedurally barred

[as successive], it is DENIED.”). The Petitioner appealed on June 26, 2017, see Notice of Appeal for

Second Rule 3.850 Motion [ECF No. 19-1] at 561, and the Fourth DCA summarily affirmed, see Cuffy

v. State, 231 So. 3d 446 (Fla. 4th DCA 2017). The mandate in this second 3.850 appeal issued on October

6, 2017. See Second 2017 Fourth DCA Mandate [ECF No. 19-1] at 602.

On July 27, 2017—while his appeal of the second Rule 3.850 Motion was pending—the

Petitioner filed a motion to disqualify Judge Ilona Holmes, the state judge who had presided over his

case, alleging that “there was a deal made between Judge Levenson and Judge Holmes to control the

outcome of case [sic] in favor of the state.” Motion to Disqualify [ECF No. 19-1] at 563. On

September 4, 2017, the Petitioner filed a motion “for a new trial and reconsideration of all previous

rulings entered by disqualified Judge Holmes,” claiming (incorrectly) that his Motion to Disqualify

“was automatically granted by the clerk of court on August 30, 2017[.]” Motion for Reconsideration

[ECF No. 19-1] at 573. In this Motion for Reconsideration, the Petitioner alleged that Judge Holmes

had violated his right to a fair trial and sought “a new trial and reconsideration of all previous rulings

entered by disqualified Judge Holmes.” Id. at 576. The record does not say whether either motion was

ever ruled on.

On June 8, 2018—245 days after the Mandate issued in his second Rule 3.850 appeal—the

Petitioner filed a “Verified Motion to Vacate Judgement and Sentence under Florida Rule 3.850,”

essentially his third Rule 3.850 Motion. See 2018 Rule 3.850 Motion (“Third Rule 3.850 Motion”) [ECF

No. 19-1] at 604–05. On June 12, 2018, the state court dismissed this third Rule 3.850 Motion as

F.3d 1287, 1290 n.2 (11th Cir. 2009). “Absent evidence to the contrary, [courts] assume that a prisoner

delivered a filing to prison authorities on the date that he signed it.” Jeffries v. United States, 748 F.3d

1310, 1314 (11th Cir. 2014).

successive, summarily denied it on the merits, and dismissed it as time-barred (in part) because the

Petitioner conceded its untimeliness. See Order Dismissing Third Rule 3.850 Motion [ECF No. 19-1]

at 607–08 & n.1 (“Defendant concedes that his motion is time barred and successive, motion p.1.”).

On September 20, 2018, the Petitioner—acting through counsel—filed a motion for reconsideration,

see Motion for Reconsideration on Denial of Third Post Conviction Motion [ECF No. 19-1] at 625,

which the state court denied, see Respondent’s Exhibits in Support of Objections to Second Report

and Recommendations [ECF No. 44-1] at 12 (“Objection Exhibits to Second Report”).

In July of 2018, the Petitioner moved—again, through counsel—to reassign the case, claiming

(as before) that his 2017 Motion to Disqualify had been granted. See 2018 Motion for Clerks Office

for Order to Reassign Case (“Motion to Reassign”) [ECF No. 19-1] at 628. The state court denied this

second Motion to Reassign on August 14, 2018. See Order Denying Motion to Reassign Case [ECF

No. 19-1] at 630. The Petitioner filed this action on October 8, 2018. See Petition.5

STANDARD OF REVIEW

When a magistrate judge’s “disposition” has been properly objected to, district courts must

review that disposition de novo. FED. R. CIV. P. 72(b)(3). But, when no party has timely objected, “the

court need only satisfy itself that there is no clear error on the face of the record in order to accept

the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted). Although

Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged that Congress’s

intent was to require de novo review only where objections have been properly filed—and not when

neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress

5 The Petitioner submitted other filings during his years-long postconviction odyssey in state court.

We do not describe each of these here, though, because (1) we address some of them in the Analysis,

infra, and (2) the rest were filed only after the federal statute of limitations expired. See generally Exhibits

[ECF No. 19-1] at 632–36, 638–67; see also Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (“[A]

state court petition like Tinker’s that is filed following the expiration of the federal limitations period

cannot toll that period because there is no period remaining to be tolled.” (cleaned up)).

intended to require district court review of a magistrate [judge]’s factual or legal conclusions, under a

de novo or any other standard, when neither party objects to those findings.”).

“A party filing objections must specifically identify those findings objected to and the specific

basis for such objections.” Hidalgo Corp. v. J. Kugel Designs, Inc., 2005 WL 8155948, at *1 (S.D. Fla. Sept.

21, 2005). Therefore, the “[f]ailure to object to the magistrate [judge]’s factual findings after notice

precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing

Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)).

THE LAW

“[A] person in custody pursuant to the judgment of a State court” has one year to file a § 2254

petition in federal court. 28 U.S.C. § 2244(d)(1). That one-year period “runs from the latest of” the

following dates:

(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.

§ 2244(d)(1)(A)–(D).

Of course, “[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” is not “counted

toward any period of limitation under this subsection.” § 2244(d)(2). In addition to this “statutory

tolling,” a petitioner may qualify for “equitable tolling” if he can 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, 549 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005)).

ANALYSIS

This case is complicated. The confusion stems, in no small part, from the Magistrate Judge’s

Report—which, though deeply flawed, somehow spit out the right answer. The Report’s primary flaw

is that it ignored the Petitioner’s central timing contention: that either his Motion to Disqualify or his

Motion for Reconsideration (or both) tolled his one-year statute of limitations under § 2244(d)(2)—

what we call statutory tolling. See Pet. at 5; Report at 11. Instead, the Magistrate Judge determined that

the Petitioner doesn’t qualify for equitable tolling. See Report at 20 (“As a result of Petitioner’s failure

to properly and diligently pursue his rights, he has failed to demonstrate that he qualifies for the

equitable tolling of the limitations period.”). The Magistrate Judge was right on this one. In fact, in his

Objections, the Petitioner wisely doesn’t dispute the point. See generally Obj.6 Instead, he hammers the

Report for failing to address his position on statutory tolling. See id. at 1. Unfortunately for the

Petitioner, while he’s right to lambast the Report’s failings, his Petition is still time-barred under §

2244(d)(2).

I. The Petition is Untimely

Here’s why. In ordinary circumstances, the Petitioner would have had one year from May 18,

20167 to file this Petition. See 28 U.S.C. § 2244(d)(1)(A). On that day, though, the Petitioner’s first Rule

6 Having reviewed this determination for clear error, FED. R. CIV. P. 72—and having found none—

the Court now ADOPTS this aspect of the Report.

7 This is the latest possible day on which the Petitioner’s judgment could have become final. As

we’ve explained, the Fourth DCA affirmed the Petitioner’s conviction and sentence on February 18,

2016. See Cuffy, 186 So. 3d 1037. Under Florida law, a party seeking review of a DCA’s decision has

30 days to appeal to the Florida Supreme Court. See FLA. R. APP. P. 9.120(b) (“The jurisdiction of the

supreme court shall be invoked by filing a notice . . . within 30 days of rendition of the order to be

reviewed.”). But the Petitioner never appealed to the Florida Supreme Court. So, his conviction and

3.850 Motion—which he had filed on March 24, 2016, see First Rule 3.850 Motion [ECF No. 19-1] at

295—was still pending. A “properly filed Rule 3.850 motion seeking to set aside a conviction would

undoubtedly toll AEDPA’s limitations period during its pendency[.]” Brown v. Sec’y, Fla. Dep’t of Corr.,

530 F.3d 1335, 1338 (11th Cir. 2008)); see also Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000)

(“We conclude, therefore, that the district court erred in failing to find that Nyland’s motions were

pending until the mandates issued and, presuming Nyland’s second motion for state post-conviction

relief was properly filed, his instant § 2254 petition was timely filed.”). So, even though the one-year

period started on May 18, 2016, zero statute-of-limitations days elapsed between that day and May 12,

2017, when the Fourth DCA issued its mandate denying the Petitioner’s first Rule 3.850 Motion. See

2017 Mandate [ECF No. 19-1] at 510. Note that we don’t add 30 days (for Florida Supreme Court

review) from that 2017 Mandate because, “[i]n Florida, a state court of appeals’ order denying a

rehearing on its affirmance of the state trial court’s denial of a motion for post-conviction relief is

sentence became final on March 19, 2016 (N.B. since 2016 was a leap year, February had 29 days)—

when his 30 days to seek discretionary reviewed expired.

And, because the Petitioner did not seek discretionary review from the Florida Supreme Court,

he was not eligible to pursue a writ of certiorari from the U.S. Supreme Court. See SUP. CT. R. 13.1

(“Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case,

civil or criminal, entered by a state court of last resort . . . is timely when it is filed with the Clerk of this

Court within 90 days after entry of the judgment.” (emphasis added)). The Report, though, “assuming

without deciding that Petitioner were entitled to appeal to the Supreme Court of the United States,”

Report at 5, gifted the Petitioner 90 extra days from the date of the DCA’s order (not mandate).

This—as we’ve just explained—was doubly wrong. It was wrong, first, because the Petitioner—who

never appealed to the Florida Supreme Court—wasn’t entitled to 90 additional days for U.S. Supreme

Court review. See SUP. CT. R. 13.1; see also Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th

Cir. 2006) (“We now hold, as we said in Bond, that the entry of judgment, and not the issuance of the

mandate, is the event that starts the running of time for seeking Supreme Court review[.]”). The

Magistrate Judge then made a second mistake. Adding 90 days to the date of the 4th DCA’s order,

she somehow arrived at a finality date of May 8, 2016. But 90 days from February 18, 2016 is May 18,

2016.

The upshot, then, is that the Report gifted the Petitioner five extra days of tolled time (from

March 19, 2016, when his direct appeal became final, until March 24, 2016, when he filed his first Rule

3.850 Motion). As we explain below, however, even with this gift, the Petition remains untimely.

pending until the mandate issues.” Nyland, 216 F.3d at 1267 (citing Hodges v. State, 709 So. 2d 620, 621

(Fla. 1st DCA 1998) (emphasis added)).8

The one-year period then ran for 25 days—from May 12, 2017 to June 6, 2017, when the clock

stopped because the Petitioner filed his second Rule 3.850 Motion. See Roper v. Sec’y, Fla. Dep’t of Corr.,

434 F. App’x 786, 789 (11th Cir. 2011) (“Ordinarily, a properly filed Rule 3.850 motion like Roper’s

statutorily tolls AEDPA’s limitations period.”). The clock resumed on October 6, 2017, when the

Fourth DCA issued its mandate denying the Petitioner’s second Rule 3.850 Motion. See Second 2017

Mandate [ECF No. 19-1] at 602. And it continued running for 245 more days—until June 8, 2018—

when the Petitioner filed his third Rule 3.850 Motion. See Third Rule 3.850 Motion [ECF No. 19-1] at

604.

This third Rule 3.850 Motion, however, did not stop the clock because it was not timely filed.

Only motions that are “properly filed” toll the one-year limitations period. Sweet v. Sec’y, Fla. Dep’t of

Corr., 467 F.3d 1311, 1315 (11th Cir. 2006) (“This much is clear: an application for state post-

conviction or other collateral review tolls the federal period of limitation only if it was ‘properly filed.’”

(quoting § 2244(d)(2))). And, “[q]uite simply, the Supreme Court said that ‘[w]hen a postconviction

petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2),’”

8 Note the (very annoying) difference in the date of finality between direct and collateral appeals.

Compare Chavers, 468 F.3d at 1275 (“We now hold, as we said in Bond, that the entry of judgment, and

not the issuance of the mandate, is the event that starts the running of time for seeking Supreme Court

review[.]”); FLA. R. APP. P. 9.120(b) (“The jurisdiction of the supreme court shall be invoked by filing

a notice . . . within 30 days of rendition of the order to be reviewed.”) with Carter v. Dep’t of Corr., 2019

WL 6688695, at *1 (11th Cir. Sept. 29, 2019) (“In Florida, a state post-conviction appeal remains

pending until the state appellate court’s mandate issues.”). In other words, assuming a litigant doesn’t

appeal either to the Florida Supreme Court or to the U.S. Supreme Court, a direct appeal becomes final

when the time to appeal expires—which is either 30 (Florida Supreme Court) or 90 (U.S. Supreme

Court) days after the DCA enters its order. A post-conviction motion, by contrast, becomes final as soon

as the mandate issues.

because “time limits, no matter their form, are ‘filing’ conditions.” Id. at 1316 (quoting Pace, 544 U.S. at

414, 417).

In Carey v. Saffold, the Supreme Court was presented with a one-sentence opinion from the

California Supreme Court denying relief “on the merits and for lack of diligence.” 536 U.S. 214, 217–

18 (2002). Ultimately, “[t]he Court held that when a state court determines that a motion is untimely,

that is the end of the matter, regardless of whether it also addressed the merits of the claim, or whether

its timeliness ruling was entangled with the merits.” Sweet, 467 F.3d at 1317–18 (citing Saffold, 536 U.S.

at 226 (cleaned up)). So, if “a state court determines that a petition is untimely, and also rejects the

substantive claim on the merits, the timeliness decision standing alone compels a federal court to

conclude that the state motion was not ‘properly filed[.]’” Id. at 1318.

The Report determined that Judge Holmes “denied and dismissed the [third Rule 3.850]

motion as successive, on the merits, and noticed that [the] Petitioner conceded the motion was time-

barred and successive.” Report at 9. And Judge Holmes’ order strongly supports this finding. See Order

Dismissing Third Rule 3.850 Motion [ECF No. 19-1] at 607–08 & n.1. Judge Holmes, for instance,

began her order by noting: “Defendant concedes that his motion is time barred and successive.” Id.

She then delved into an analysis of Florida’s newly discovered evidence rule, see id. at 607 (citing FLA.

R. CRIM. P. 3.850(b)(1))—Florida’s statutory exception for untimely Rule 3.850 motions. After

concluding that the “information” the Petitioner adduced “is not newly discovered,” Judge Holmes

“DISMISSED and DENIED” the motion. See id. at 607–08.

For five reasons, this Court has no trouble concluding that Judge Holmes ruled on the

untimeliness of the Petitioner’s motion. First, the motion was untimely. Florida law affords a habeas

petitioner two years from “when a judgment and sentence become final” to file a motion under Rule

3.850. FLA. R. CRIM. P. 3.850(b). In the Petitioner’s case, that two-year period began (at the latest) on

March 19, 2016, when his window to appeal to the Florida Supreme Court closed.9 But the Petitioner

didn’t file his third Rule 3.850 Motion until June 8, 2018, see Third Rule 3.850 Motion [ECF No. 19-1]

at 604—almost three months too late. Second, in dismissing the third Rule 3.850 Motion, Judge Holmes

started her order by noting that the Petitioner had conceded its untimeliness—something she wouldn’t

have had to do if she were denying the motion on some other ground. See Order Dismissing Third

Rule 3.850 Motion [ECF No. 19-1] at 607–08 & n.1. Third, Judge Holmes considered and rejected the

Petitioner’s “newly discovered evidence” contention—an argument that, again, would be relevant only

in the context of an untimely motion. Id. at 607. Fourth, Judge Holmes both dismissed the motion and

denied it on the merits—state-court speak for procedural bars, like untimeliness. See Thomas v. State, 949

So. 2d 319, 319 (3d DCA 2007) (“The instant habeas petition is yet another such attack. It is successive,

time-barred, and meritless. For these reasons, the trial court should have dismissed the habeas corpus

petition instead of denying it on the merits.”). And, as we’ve said, if a state court rejects a collateral

petition as untimely, the federal habeas court must accept that finding even if the state court separately

reached the merits. See Sweet, 467 F.3d at 1318 (holding that, if “a state court determines that a petition

is untimely, and also rejects the substantive claim on the merits, the timeliness decision standing alone

compels a federal court to conclude that the state motion was not ‘properly filed”). Fifth, when the

Petitioner filed a motion to reconsider this denial of his third Rule 3.850 Motion, a different state judge

(State Circuit Court Judge Barbara McCarthy) declined to reconsider Judge Holmes’ ruling because,

in her view, the third Rule 3.850 Motion was “untimely.” Order Denying Motion for Reconsideration

of Third Rule 3.850 Motion [ECF No. 44-1] at 12.10 Because the third Rule 3.850 Motion wasn’t timely,

9 N.B. This two-year period wasn’t tolled by the Petitioner’s first and second Rule 3.850 Motions. See

Joseph v. State, 835 So. 2d 1221, 1221 n.3 (Fla. 5th DCA 2003) (“The two-year limitation is not tolled

by other collateral proceedings filed in the trial court, even if a corrected sentence is entered.”).

10 The Petitioner objects to this conclusion. As he sees it, had the Fourth DCA believed that

Judge Holmes dismissed his third Rule 3.850 Motion as untimely, it would have said so. See Obj. at 3

(asserting that the Fourth DCA “would [have lacked] jurisdiction to entertain the merits of [his] appeal

it didn’t toll the one-year limitations period. See Sweet, 467 F.3d at 1317–18 (“Sweet’s Ring petition was

not timely filed in state court and, therefore, under § 2244(d), it was not ‘properly filed’ and could not

toll the time for filing his federal habeas petition.”).

From June 8, 2018, in other words, our one-year clock ran uninterrupted for 122 additional

days—until October 8, 2018, when the Petitioner filed this Petition. See Pet. at 29. The Petitioner’s

clock thus ran—not counting valid breaks—for 392 days (25 plus 245 plus 122). Since § 2244(d)(1)

gave him only 365 days, his Petition is untimely unless he qualifies for statutory tolling under §

2244(d)(1)(A).

II. The Effects of the Motions to Disqualify and for Reconsideration

In his Objections, the Petitioner insists that, under § 2244(d)(2), his Motions to Disqualify and

for Reconsideration tolled the one-year period. See Obj. at 1. To qualify for tolling under § 2244(d)(2),

[on the denial of his third postconviction motion] if the second motion for reconsideration [on that

underlying motion] was [in fact] untimely.”). But that isn’t the law. “[F]ederal court[s] should ‘look

through’ [an] unexplained decision to the last related state-court decision that does provide a relevant

rationale[.]” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); see also Sweet, 467 F.3d at 1317 (“Where there

has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding

that judgment or rejecting the same claim rest upon the same ground.” (quoting Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991))).

The Fourth DCA affirmed, without explanation, Judge Holmes’ denial of the Petitioner’s third

Rule 3.850 Motion. See Cuffy v. State, 299 So. 3d 1059 (Fla. 4th DCA 2020). And Judge Holmes, as

noted, “dismissed” that motion as untimely. See Order Dismissing Third Rule 3.850 Motion [ECF No.

19-1] at 607–08. This Court must therefore presume that the Fourth DCA agreed with Judge Holmes

unless the Petitioner can show “strong evidence” to the contrary. Sweet, 467 F.3d at 1317 (“[The trial

court] denied the claim because it was untimely, and, in the alternative, also failed on the merits. In

the absence of strong evidence to rebut the normal presumption that silence implies consent, we

presume the Supreme Court of Florida’s ruling to have rested on the same grounds.” (cleaned up)).

In support of his view that the Fourth DCA disagreed with Judge Holmes, the Petitioner cites

only the Fourth DCA’s request that the third Rule 3.850 Motion be added to the record. See Obj. at 3.

But this proves nothing. The Fourth DCA wouldn’t have denied the motion without first reviewing

it (no court would)—especially where, as in this case, it had to review Judge Holmes’ finding that the

Petitioner had adduced no “newly discovered evidence.” Without appending the motion, in other

words, the appellate court couldn’t have passed on Judge Holmes’ characterization of that evidence.

Because, in short, the Petitioner has produced no evidence—let alone “strong evidence”—to rebut

“the normal presumption that silence implies consent, we presume the [Fourth DCA’s] ruling to have

rested on the same grounds” as Judge Holmes’. Sweet, 467 F.3d at 1317.

a motion must be two things: first, it must be “properly filed”; second, it must “attack collaterally the

relevant conviction or sentence.” Cantu v. Sec’y, Fla. Dep’t of Corr., 778 F. App’x 760, 762 (11th Cir.

2019); see also 28 U.S.C. § 2244(d)(2) (only “properly filed application[s] for State post-conviction or

other collateral review with respect to the pertinent judgment or claim” have any tolling effect); Baker

v. McNeil, 439 F. App’x 786, 787 (11th Cir. 2011) (“[T]he phase ‘collateral review’ in § 2244(d)(2)

means judicial review of a judgment in a proceeding that is not part of direct review.”). And neither

the Motion to Disqualify nor the Motion for Reconsideration meets both requirements.

The Motion to Disqualify is easy. That motion did nothing more than ask for Judge Holmes

to be removed from, and for a new judge to be appointed to, the Petitioner’s case. See Motion to

Disqualify at 563. Since it didn’t challenge the Petitioner’s underlying conviction or sentence at all, it

doesn’t qualify as a “collateral motion.” Cantu, 778 F. App’x at 762 (“[A] tolling motion must attack

collaterally the relevant conviction or sentence.”); see also, e.g., Brown, 530 F.3d at 1337–38 (finding that

“a Rule 3.853 proceeding,” a post-conviction procedure for obtaining DNA, does not qualify as a

“collateral motion” because it “involves an application for discovery only, pursuant to which the court

lacks authority to order relief from the movant’s sentence or conviction based on the DNA test

results”).

The Motion for Reconsideration is a bit trickier. If that motion is read as asking for a new trial,

then it plainly attacked the conviction or sentence. This, in fact, is the cleanest reading of the motion.

See Motion for Reconsideration at 576 (asking for a “new trial and reconsideration of all previous

rulings entered by disqualified Judge Holmes”). Read this way, though, the motion couldn’t have tolled

the limitations period because it wasn’t “properly filed.” Under Florida law, a motion for a new trial

must be filed within 10 days of the verdict. See Showers v. State, 778 So. 2d 424, 424 (Fla. 5th DCA

2001) (“A claim for new trial based on Florida Rule of Criminal Procedure 3.600 must be filed within

ten days after rendition of the verdict.”). The Motion for Reconsideration—filed five years after the

verdict—was thus (very) untimely.

But let’s give the Petitioner the benefit of the doubt and assume that, in asking for

“reconsideration of all previous rulings entered by disqualified Judge Holmes,” he was challenging

Judge Holmes’ denial of his first and second Rule 3.850 Motions.11 Motion for Reconsideration at 576

(seeking a “new trial and reconsideration of all previous rulings entered by disqualified Judge Holmes”

(emphasis added)). And, since those first two Rule 3.850 Motions likewise addressed the Petitioner’s

underlying conviction and sentence, see First Rule 3.850 Motion [ECF No. 19-1] at 295; Second Rule

3.850 Motion [ECF No. 19-1] at 535, the Motion for Reconsideration—by challenging the denial of

two motions that, in turn, challenged his conviction and sentence—should be construed as likewise

attacking the judgment.

Even viewed in this way, though, the Motion for Reconsideration wasn’t “properly filed.”

The Petitioner, remember, filed his Motion for Reconsideration because he believed that his Motion

to Disqualify had been granted, that his case had been assigned to a new judge, and that he therefore

could ask the new judge to reconsider all of Judge Holmes’ prior rulings. See Motion for

Reconsideration at 573 (“The [Motion to Disqualify] was automatically granted by the clerk of court

on August 30, 2017[.] [T]he instant motion has been filed within the 20 days as required by the rule to

be considered for reconsideration on the merits by the trial court.”). In this, the Petitioner wasn’t

11 This is admittedly a bit of a stretch. The Motion for Reconsideration, after all, references only Judge

Holmes’ decisions at trial—such as her orders on continuances, jury instructions, and juror strikes—

and never mentions either his first or his second Rule 3.850 Motion. But the Petitioner’s pro se Motion

for Reconsideration is no model of clarity. It doesn’t, for instance, cite to Rule 3.800 (Correction,

Reduction, and Modification of Sentences), or Rule 3.820 (Habeas Corpus), or Rule 3.850 (Motion to

Vacate, Set Aside, or Correct Sentence). And the Supreme Court has admonished district courts to

hold pro se filings to “less stringent standards than those drafted by an attorney.” Sause v. Bauer, 138 S.

Ct. 2561, 2563 (2018). Given this relaxed standard, this Court should (at least) address the possibility

that, in filing his Motion for Reconsideration, the Petitioner was attacking the denial of his first two

Rule 3.850 Motions.

completely off the mark. Florida law, it’s true, provides that a motion to disqualify a judge is

automatically granted after it’s been pending for 30 days. See FLA. R. JUD. ADMIN. 2.330(j) (“[A] judge

shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the

motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be

deemed granted and the moving party may seek an order from the court directing the clerk to reassign

the case.”). Because the Petitioner filed his Motion to Disqualify on July 27, 2017, see Motion to

Disqualify at 563—and since no one ever denied it—the Petitioner believed that the Motion to

Disqualify had been automatically granted on August 30, 2017. See Motion for Reconsideration at 573

(“The [Motion to Disqualify] was automatically granted by the clerk of court on August 30, 2017[.]”).12

He filed his Motion for Reconsideration only a few days later, on September 4, 2017. See id. Under

Florida law, “[p]rior factual or legal rulings by a disqualified judge may be reconsidered and vacated

or amended by a successor judge based upon a motion for reconsideration which must be filed within

20 days of the order of disqualification[.]” FLA. R. JUD. ADMIN. 2.330(h). And so, if his Motion to

Disqualify had been (as he supposed) automatically granted, his Motion for Reconsideration would

have been timely.

What the Petitioner forgets, however, is that, when he filed his Motion to Disqualify (July 27,

2017), his second Rule 3.850 Motion was on appeal. See Notice of Appeal for Second Rule 3.850 Motion

[ECF No. 19-1] at 561 (appeal filed on June 26, 2017); Second 2017 Fourth DCA Mandate [ECF No.

19-1] at 602 (showing that the mandate issued on October 6, 2017).13 And Florida law is clear that a

12 The Petitioner somehow landed on August 30, 2017 when he counted 30 days from July 27, 2017.

Although this computation is incorrect—30 days actually brings us to August 26, 2017—the error is

immaterial because September 4, 2017 (the day he filed his Motion for Reconsideration) is still within

20 days of either date.

13 In what looks like a typo, the Report suggested that the Petitioner filed the Motion to Disqualify

while his “third post-conviction motion” was on appeal. See Report at 15. As we’ve seen, however,

the Petitioner filed the Motion to Disqualify on July 27, 2017, see Motion to Disqualify at 563—

approximately one month after Judge Holmes denied his second Rule 3.850 Motion, see Order Denying

trial court loses jurisdiction to rule on a motion for disqualification while an appeal is pending. See

Kluck v. Cloninger, 39 So. 3d 1277, 1277 (Fla. 5th DCA 2010) (“The trial court lost jurisdiction when

the notice of appeal was filed, and the order of disqualification entered during the pendency of the

appeal was a nullity.”); see also Nilio v State, 143 So. 3d 424, 426 (Fla. 1st DCA 2014) (holding that a

“motion to disqualify” filed “at a time when the trial court’s jurisdiction had not been invoked for any

other purpose” was “void ab initio.”); State v. Powell, 460 So. 2d 421, 422 (Fla. 5th DCA 1984) (“The

judge who ruled on the motion to vacate was in error because he had no jurisdiction to grant a new

trial—neither did the trial judge. That jurisdiction was lost after the appeal was taken and never

regained.”); Shepard v. State, 912 So. 2d 1250, 1252 (Fla. 2d DCA 2005) (“Once a notice of appeal is

filed, the trial court is divested of jurisdiction to amend the sentence[.]”).14

The Petitioner’s reliance on Rucks v. State, 692 So. 2d 976 (Fla. 2d DCA 1997), for the contrary

view is misplaced. See Obj. at 5. Rucks, after all, had nothing to do with the question presented here:

whether a petitioner’s decision to appeal the trial court’s ruling strips the trial court of jurisdiction to

consider the petitioner’s subsequent motion to disqualify the trial judge. The petitioner in Rucks filed

her motion to disqualify after the trial judge revoked her probation and ordered her to serve the rest

of her sentence in jail. See Rucks, 692 So. 2d at 976. The trial court denied the motion to disqualify,

Second Rule 3.850 Motion [ECF No. 19-1] at 546–57, and some 31 days after he appealed that denial,

see Notice of Appeal of Second Rule 3.850 Motion [ECF No. 19-1] at 561. Since the Petitioner didn’t

file his third Rule 3.850 Motion until June 8, 2018, see Third Rule 3.850 Motion [ECF No. 19-1] at 604–

05, his Motion to Disqualify (obviously) couldn’t have been filed during the pendency of that third

appeal.

14 For similar reasons, the Motion for Reconsideration cannot toll the limitations period by itself. That

is to say, the Petitioner’s whole argument relies on the proposition—now discredited—that the

Motion for Reconsideration tolled the limitations period because the Motion to Disqualify had been

automatically granted. If the Petitioner were correct, as we’ve said, his case would have been

transferred to a new judge, and his Motion for Reconsideration may well have been timely. The point

here, though, is that, without the Motion to Disqualify, the Motion for Reconsideration is nothing

more than a very late motion in a long-since closed case. In short, the Motion for Reconsideration can

be timely only if it succeeded Judge Holmes’ disqualification.

and the petitioner appealed. Id. at 977. On appeal, the State argued that “the absence of any pending

action in this criminal case render[ed] [the petitioner’s] petition moot.” Id. In response, the petitioner

represented that “she had already filed a motion to mitigate her sentence.” Id. In the State’s view,

however, the petitioner—who had already been convicted and sentenced—had no active case from

which the trial judge could be disqualified. The Second DCA concluded that “[t]his factual

disagreement is irrelevant to our resolution of this matter. The absence of any pending action in a case

before the challenged judge may play a role in determining which writ is utilized to seek redress, but

will not foreclose the provision of relief.” Id.

Rucks thus stands for the sensible and straightforward proposition that a motion to disqualify

may be filed in a closed case. Id. But it did not answer the separate question at issue here: whether the

filing of a notice of appeal strips the trial judge of jurisdiction to consider a subsequently-filed motion

to disqualify. Kluck, by contrast, squarely addressed this question and concluded, as mentioned, that

the notice of appeal does divest the trial court of jurisdiction to adjudicate such a motion. See Kluck, 30

So. 3d at 1277. And Nilio, for its part, concluded that, where a court lacks jurisdiction, any filed motion

is “void ab initio.” Nilio, 143 So. 3d at 426. To summarize, then, as soon as the Petitioner filed his

notice of appeal, he stripped the trial court of jurisdiction to adjudicate any later motions—including,

as relevant here, his Motion to Disqualify.

Nor, for three reasons, could the Petitioner argue that his Motion to Disqualify was held in

abeyance—and thus was never denied—until the trial court regained jurisdiction, at which point (after

the expiration of 30 days), it was automatically granted. First, and most obviously, the Petitioner never

advanced this argument—and so, he’s waived the point. See In re Egidi, 571 F.3d 1156, 1163 (11th Cir.

2009) (“Arguments not properly presented in a party’s initial brief or raised for the first time in the

reply brief are deemed waived.”). Second, Nilio squarely rejected the notion that a motion filed in a

court that lacks jurisdiction—a motion that, in Nilio’s words, is “void ab initio”—can survive in a kind

of coma-like stasis until the court’s jurisdiction is restored. See Nilio, 143 So. 3d at 426 (“We find no

authority dictating that a motion to disqualify filed when the trial court’s jurisdiction has not otherwise

been invoked is held in abeyance until the court possesses jurisdiction over some other substantive

matter.”); see also id. (“[S]uch a pronouncement would [not] be reasonable given the strict and

unforgiving nature of the 30-day requirement set forth in rule 2.330(j), and the burden such a

procedure would place on trial judges in that circumstance. We could conclude that Mr. Nilio’s motion

for disqualification, having been filed at a time when the trial court’s jurisdiction had not been invoked

for any other purpose, was void ab initio and therefore did not implicate the provision of rule 2.330(j)

upon which Mr. Nilio relies.”).15 Third, the argument assumes that the trial court’s jurisdiction was (at

some point) restored. But, in fact, once the Fourth DCA affirmed Judge Holmes’ decision on the

second Rule 3.850 Motion, the case ended—and, unlike a phoenix, who’s reborn from the embers of

his previous self, the case was never resuscitated (not before Judge Holmes nor elsewhere). See Cuffy

v. State, 231 So. 3d 446 (Fla. 4th DCA 2017) (affirming Judge Holmes without explanation).

The Florida state courts appear to agree with this result. In July of 2018, the Petitioner moved

to reassign his case, claiming (as he does here) that his 2017 Motion to Disqualify had been granted.

See Motion to Reassign at 628. But the state court denied this Motion to Reassign on August 14, 2018.

See Order Denying Motion to Reassign at 630. Not content with this result, the Petitioner then filed

(in the Fourth DCA) a petition for a writ of prohibition, see December 2018 Petition for Writ of

Prohibition [ECF No. 33-1]—a mechanism under Florida law by which a habeas petitioner can ask

the DCA to disqualify a trial judge, see Haas v. Davis, 37 So. 3d 983, 983 (Fla. 3d DCA 2010). In that

filing, the Petitioner—as here—asked the Fourth DCA to remove Judge Holmes because (he said) his

Motion to Disqualify “was deemed granted.” December 2018 Petition for Writ of Prohibition at 8. As

15 And the Court has found no authority for the contrary proposition.

it does here, the State argued that the Petitioner’s Motion to Disqualify was void ab initio because the

Petitioner had filed it while the case was on appeal. See Response to Order to Show Cause [ECF No.

33-1] at 33–34 (citing Kluck and Nilio). The Fourth DCA agreed and summarily denied the Petition

for Writ of Prohibition. See May 2019 Denial of Writ [ECF No. 44-1] at 14. The Fourth DCA, in

short, appears to agree that the Petitioner’s Motion to Disqualify was never granted.16

16 This conclusion moots two of the Petitioner’s other contentions. First, it moots the Petitioner’s

claim that, once Judge Holmes was disqualified from his case, she was precluded from ruling on his

third Rule 3.850 Motion. See Obj. at 2 (“On June 12, 2018, Judge Holmes (Disqualified Judge) entered

an order denying Petitioner’s Third Post Conviction Motion. Petitioner attempted to enforce the

disqualification, filed a motion to re-assign the case.”). And (the argument goes), since her order

denying his third Rule 3.850 Motion was void, that Motion was never denied—which, presumably,

would mean that the Petitioner is, even today, benefitting from statutory tolling. Id. As we’ve seen,

however, it was the Petitioner’s Motion to Disqualify Judge Holmes that was void ab initio. As a result,

Judge Holmes was never disqualified, and her order denying his third Rule 3.850 Motion took effect

the moment she entered it.

Second, it moots his challenge to the Report’s admittedly questionable foray into timeliness

analysis. The Report correctly noted that, under Florida law, a party may file a motion for

disqualification within “a reasonable time not to exceed 10 days after discovery of the facts constituting

the grounds for the motion[.]” FLA. R. JUD. ADMIN. 2.330(e). “[T]he judge shall rule on a motion to

disqualify immediately . . . . [I]f not ruled on within 30 days of service the motion shall be deemed

granted and the moving party may seek an order from the court directing the clerk to reassign the

case.” FLA. R. JUD. ADMIN. 2.330(h). The Report added that “Florida courts have deemed a motion

for recusal to be untimely if the moving party waits to file the motion until after it has suffered an

adverse ruling, unless the party can show good cause for the delay,” suggesting that “[i]t is clear

Petitioner sought Judge Holmes’ recusal only after her adverse ruling on this second post-conviction

motion,” and—tying these thoughts together—concluding that the Petitioner’s Motion to Disqualify

“could not have been deemed as granted after thirty days.” Report at 18–19 (quoting Ferguson v. Sec’y,

Fla. Dep’t of Corr., 580 F.3d 1183, 1219 (11th Cir. 2009) (cleaned up)).

The Petitioner is right to criticize this aspect of the Report, see Obj. at 4–5—even if his

objections are ultimately immaterial. The Petitioner says that he filed his Motion to Disqualify only

two days after he received “information [of misconduct] . . . from an attorney that currently appears

before . . . Judge Holmes,” Motion to Disqualify at 563–68—hardly an unreasonable delay and, in any

case, well within the 10-day window set out in FLA. R. JUD. ADMIN. 2.330(e). The Petitioner, it’s true,

filed his Motion to Disqualify only a few days after an adverse ruling (Judge Holmes’ denial of his

second Rule.3850 Motion). But he acted promptly after learning of the (alleged) misconduct. The

Motion to Disqualify was thus filed “within a reasonable time.” Nevertheless, as we’ve explained, the

Motion to Disqualify failed to toll the limitations period—not because it was late—but because it (1)

didn’t challenge the Petitioner’s conviction and sentence and (2) was void ab initio.

Since the Motion to Disqualify was a nullity under Florida law when it was filed, it couldn’t have

been granted—automatically or otherwise—at the expiration of 30 days. That, of course, means that

the Petitioner’s Motion to Disqualify was never granted, that his case was never reassigned to a new

judge, and that he presented his Motion for Reconsideration—which he had hoped to file before

someone else—to Judge Holmes. Why does this matter? Because, under Florida law, a party has 15

days to challenge a final order with a motion for rehearing.17 See FLA. R. CRIM P. 3850(j) (“Any party

may file a motion for rehearing of any order addressing a motion under this rule within 15 days of the

date of service of the order.”). As we’ve said, the Motion for Reconsideration could only be considered

a “collateral motion”—and, thus, could only toll the one-year period under § 2244(d)(2)—if it

challenged Judge Holmes’ denial of one or both of his Rule 3.850 Motions.

Judge Holmes denied the first Rule 3.850 Motion on December 15, 2016. See Order Denying

First Rule 3.850 Motion at 477. Under Florida law, then, the Petitioner had 15 days—or until

December 30, 2016—to move for reconsideration of this denial. See FLA. R. CRIM. P. 3.850(j). Judge

Holmes denied the Petitioner’s second Rule 3.850 Motion on June 16, 2017. See Order Denying Second

Rule 3.850 Motion at 552. The Petitioner likewise had 15 days—or until July 1, 2017—to move for

reconsideration of this denial. FLA. R. CRIM. P. 3.850(j). But the Petitioner didn’t file his Motion for

Reconsideration until September 4, 2017. See Motion for Reconsideration at 573. It was thus 20

months too late with respect to the first denial and three months too late as to the second. Since the

Motion for Reconsideration wasn’t timely, it wasn’t properly filed within the meaning of § 2244(d)(2).

See Sweet, 467 F.3d at 1316 (“When a postconviction petition is untimely under state law, that is the

17 The Petitioner’s Motion for Reconsideration is actually a “motion for rehearing” under Florida law

because it challenged a final order. See Seigler v. Bell, 148 So. 3d 473, 479 (Fla. 5th DCA 2014)

(“Nomenclature does not control, and motions for either ‘rehearing’ or ‘reconsideration’ aimed at final

judgments shall be treated as rule 1.530 motions for rehearing, while motions aimed at nonfinal orders

shall be treated as motions for reconsideration.”).

end of the matter for purposes of § 2244(d)(2), because, time limits, no matter their form, are filing

conditions.” (cleaned up)).18

Trying to parry this result, the Petitioner blames the Report for failing to consider two motions

for reconsideration he filed in state court—in which he sought reconsideration of the denial of his

third Rule 3.850 Motion. See Obj. at 1–2 (“After discovering the case had been re-assigned to Judge

McCarthy, Petitioner filed a second motion for reconsideration [so that the successor judge could]

reconsider the order denying Petitioner’s Third Post Conviction Motion[.]”). To hear the Petitioner

tell it, a successor judge (presumably Judge McCarthy) granted one of these two motions, revisited the

third Rule 3.850 Motion, and then (months later) entered a new order re-denying the third Rule 3.850

Motion. See id. at 2–3. If this were true, the Petitioner might19 get the benefit of those additional

months between his filing of the motions for reconsideration and the ultimate re-denial of the third

Rule 3.850 Motion.

Unfortunately for the Petitioner, none of this ever happened.20 As we’ve explained, Judge

Holmes dismissed the third Rule 3.850 Motion as untimely on June 12, 2018. See Order Dismissing

18 This conclusion moots the Petitioner’s final objection, in which he chastises the Report for failing

to toll the time between his “Motion for Reconsideration of New Trial” (September 4, 2017) “up until

the time Petitioner filed his habeas petition on October 2018.” Obj. at 6–8. Since the Motion for

Reconsideration was filed while the case was on appeal, it was void ab initio. And, to the extent it could

be seen as a standalone request that Judge Holmes reexamine all her prior rulings—including her

denials of his first two Rule 3.850 Motions—it was way too late.

19 As we’ve seen, even if all this had occurred (which it didn’t), the limitations period still wouldn’t

have been tolled because the third Rule 3.850 Motion was itself untimely when it was filed—and so, it

was not “properly filed.”

20 In her Second Report, the Magistrate Judge did mysteriously suggest that the state court had

“granted” one of the Petitioner’s motions for reconsideration. See Second Report at 4 (citing Judicially

Noticed Order Requiring Response (“State Court’s Order for Response”) [ECF No. 39-5]). The Court

has since vacated this Second Report. Nevertheless, the Petitioner runs with it and argues—somewhat

nonsensically—that “[t]he Successor Judge could ONLY granted [sic] the motion [for reconsideration

if] pursuant to Fla. Jud. Admin. Rule 2.330(h) . . . it determined the motion for disqualification was

deemed granted.” Obj. at 2. But, as the title of the State Court’s Order for Response implies—and as

even a cursory glance at the order’s text makes clear—that order never granted anything (let alone a

motion for reconsideration). Instead, the order simply required the State to respond to the Petitioner’s

Third Rule 3.850 Motion at 607–08. The Petitioner then filed a motion for reconsideration on

September 20, 2018, see Motion for Reconsideration of Dismissal of Third Rule 3.850 Motion [ECF

No. 19-1] at 625, which Judge McCarthy—to whom the case had been reassigned21—likewise denied,

reasoning (as Judge Holmes had) that the third Rule 3.850 Motion was, in fact, untimely, see Order

Denying Motion for Reconsideration of Third Rule 3.850 Motion at 12. And this motion to reconsider

the denial of the third Rule 3.850 Motion cannot toll a limitations period that, because of the

untimeliness of the underlying Rule 3.850 Motion, had already expired. See Tinker, 255 F.3d at 1333

(“[A] state court petition like Tinker’s that is filed following the expiration of the federal limitations

period cannot toll that period because there is no period remaining to be tolled.” (internal quotations

omitted)). In sum, since the third Rule 3.850 Motion wasn’t timely, the motion to reconsider its denial

could not have been “properly filed.” Sweet, 467 F.3d at 1317–18 (concluding that a “timeliness

decision standing alone compels a federal court to conclude that the state motion was not ‘properly

filed’”).

***

Because neither the Motion to Disqualify nor the Motion for Reconsideration tolled the

applicable limitations period, the Petition is untimely and must be dismissed.

motion for reconsideration of the denial of his third Rule 3.850 Motion. See State Court’s Order for

Response at 1 (“The Court has reviewed the Motion and finds that a response by the State is necessary.

Accordingly, it is hereby ORDERED AND ADJUDGED that the Office of the State Attorney shall

have 60 business days in which to file a response to the Defendant’s Motion, and to provide a courtesy

copy of said response to this Court.”).

21 Judge Holmes retired at the end of 2018. See Judge Ilona M. Homes: Excellence Personified, WESTSIDE

GAZETTE, Dec. 6, 2018, https://thewestsidegazette.com/judge-ilona-m-holmes-excellence-

personified/ (“After nearly 24 years, Judge Ilona M. Holmes will be retiring from Broward’s Circuit

Court in January 2019.”).

EVIDENTIARY HEARING

The Petitioner fails to challenge the Report’s conclusion that his Petition does not merit an

evidentiary hearing. And, because none of his claims requires further factual development, the

Report’s determination is not clearly erroneous. See 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.”). Any request for an evidentiary

hearing is therefore DENIED.

CERTIFICATE OF APPEALABILITY

The Petitioner likewise does not object to the Report’s suggestion that his request for a

certificate of appealability should be denied. A certificate of appealability should issue only when the

petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

But, when (as here) a 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because the

Petition’s untimeliness is not (in this Court’s humble estimation) subject to reasonable debate, any

request for a certificate of appealability is DENIED.

***

Having thoroughly reviewed the record and the governing law, the Court hereby ORDERS

AND ADJUDGES that the Report is ADOPTED IN PART—and only as detailed in this Order.

The Petition is DISMISSED as untimely; any request for a certificate of appealability is

DENIED; any demand for an evidentiary hearing is DENIED; all other pending motions are

DENIED AS MOOT; and all deadlines are TERMINATED. The Clerk of Court shall CLOSE

this case.

DONE AND ORDERED in Fort Lauderdale, Florida, this 25th day of January 2021.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

CC: Johnson Cuffy

L74637

New River Correctional Institution

Inmate Mail/Parcels

PO Box 900

Raiford, FL 32083

PRO SE

Paul Patti , T1

Office of the Attorney General

1515 N. Flagler Drive

Ste. 900

West Palm Beach, FL 33401-3428

(561) 837-5016

Fax: (561) 837-5108

Email: paul.pattx(@myfloridalegal.com

Noticing 2254 SAG Broward and North

Email: CimAppWPB@MyFloridaLegal.com

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