Burgess v. Florida Department of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61946-CV-ALTMAN

AL L. BURGESS,

Petitioner,

v.

MARK S. INCH,

Respondent.

____________________________/

ORDER DISMISSING PETITION

The Petitioner, Al L. Burgess, is a Florida prisoner challenging the constitutionality of his state

resentencing in Case No. 97-1342CF10A. See Petition [ECF No. 1]. The Respondent asks the Court

to dismiss the Petition as “untimely.” Response [ECF No. 9] at 12. Having carefully reviewed the

record and the governing law, we agree that the Petition is time-barred and now DISMISSS.

THE HISTORY

In 1997, the State charged the Petitioner with armed kidnapping (Count One), armed sexual

battery (Count Two), and aggravated battery with a deadly weapon (Count Three). See Indictment

[ECF No. 10-1] at 10–13. A Florida jury found the Petitioner guilty of all three counts, see Judgment

[ECF No. 10-1] at 15–16, and a Florida judge sentenced him to two concurrent terms of life in prison

(for Counts I & II) and a consecutive term of life in prison (on Count III), see Initial Sentencing Order

[ECF No. 10-2] at 18–28.

Nearly two decades later, on September 16, 2016, the trial court resentenced the Petitioner to

two consecutive terms of life in prison (for Counts I & II) and 15 years in prison (for Count III), the

latter to be served concurrently with the life sentenced the court imposed on Count II. See

Resentencing Order [ECF No. 10-2] at 105–13. The Petitioner appealed. See Notice of Appeal of

Resentencing [ECF No. 10–2] at 120–21; Initial Brief on Appeal from Resentencing [ECF No. 10-2]

at 139–72.

Although the Fourth DCA affirmed this sentence, it remanded for the trial court to correct a

“scrivener’s error to reflect the correct offense that formed the basis for the [Petitioner’s] sexual

predator designation.” Burgess v. State, 252 So. 3d 767 (Fla. 4th DCA 2018). On September 12, 2018,

after the trial court fixed the scrivener’s error, the Fourth DCA denied the Petitioner’s motion for

rehearing, clarification, and a written opinion. See Order Denying Motion for Rehearing, Clarification,

and for a Written Order [ECF No. 10-2] at 208. Sixteen days later, on September 28, 2018, the court

issued its mandate. See Resentencing Mandate [ECF No. 10-2] at 210.

On June 12, 2019, the Petitioner filed a Motion for Postconviction Relief under Fla. R. Crim.

P. 3.850, see 2019 Rule 3.850 Motion [ECF No. 10-2] at 251–63, which the trial court denied on

October 31, 2019, see Order Denying 2019 Rule 3.850 Motion [ECF No. 10-2] at 273–77. The

Petitioner appealed this decision on December 12, 2019. See Notice of Appeal on Denial of 2019 Rule

3.850 Motion [ECF No. 10-2] at 279–81. This time, the Fourth DCA summarily affirmed, see Burgess

v. State, 292 So. 3d 748 (Fla. 4th DCA 2020), and issued its mandate on May 1, 2020, see Mandate for

Case No. 4D19-3944 [ECF No. 10-3] at 8. The Petitioner filed this Petition some four months later,

on September 17, 2020. See Petition at 30.

THE LAW

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

habeas petition. 28 U.S.C. § 2244(d)(1). That limitation 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).

ANALYSIS

A. § 2244(d)(1)(A)

Under § 2244(d)(1)(A), a habeas petitioner has one year from “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for seeking such review”

to file a habeas petition in federal court. “AEDPA’s statute of limitations begins to run from the date

both the conviction and the sentence the petitioner is serving at the time he files his application become

final because judgment is based on both the conviction and the sentence.” Ferreira v. Sec’y, Dep’t of

Corr., 494 F.3d 1286, 1293 (11th Cir. 2003). The resentencing in Ferreira thus “triggered the running

of AEDPA’s statute of limitations [even though the petitioner’s] habeas petition only challenge[d] the

original [and underlying] 1997 conviction.” Id. at 1292–93. In other words, it’s only “where a

resentencing [proceeding] results in a new judgment” that “the new judgment restarts the statute of

limitations.” Thompson v. Fla. Dep’t of Corr., 606 F. App’x 495, 502 (11th Cir. 2015) (emphasis added).

Of course, “not all post-judgment changes or corrections to a sentence” will qualify as a “new

judgment for purposes of § 2244(d)(1)(A).” Id. at 502 n.8 (cleaned up). “The relevant question is not

the magnitude of the change, but the issuance of a new judgment authorizing the prisoner’s

confinement.” Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1326–28 (11th Cir. 2017) (finding

that the trial court’s “order bar[ring] the imposition of chemical castration,” but “not otherwise

address[ing] the term of Patterson’s imprisonment,” did not qualify as a new judgment).

In our case, the Respondent concedes that the Petitioner’s resentencing constituted a new

judgment. See Resp. at 11 (“Here, the new sentence on de novo resentencing constituted a new

judgment.”). The Petitioner’s judgment thus became final on September 28, 2018—when the Fourth

DCA issued its Resentencing Mandate. See Ferreira, 494 F.3d at 1288, 1292–93 (“Ferreira was

resentenced, and the mandate finalizing that judgment issued on April 14, 2003 . . . . Therefore, the

April 14, 2003 judgment that imprisoned Ferreira controls the statute of limitations for this petition

because the period begins to run when both the conviction and sentence are final.”). In other words,

the Petitioner had one year—or until September 28, 2019—to file this Petition. See Downs v. McNeil,

520 F.3d 1311, 1318 (11th Cir. 2008) (“[T]he limitations period should be calculated according to the

‘anniversary method,’ under which the limitations period expires on the anniversary of the date it

began to run.”). But he didn’t file his Petition until September 17, 2020—almost one year too late. See

generally Petition.

Now, of course, limitations time doesn’t necessarily run continuously. A petitioner may avoid

a time bar by filing certain motions that toll (or extend) the limitations period. And the Petitioner filed

just such a motion in this case. Recall that, on June 12, 2019, the Petitioner filed his 2019 Rule 3.850

Motion. See 2019 Rule 3.850 Motion; see also Brown v. Sec’y, Fla. Dep’t of Corr., 530 F.3d 1335, 1338 (11th

Cir. 2008) (“[A] properly filed Rule 3.850 motion seeking to set aside a conviction would undoubtedly

toll AEDPA’s limitations period during its pendency[.]”). By that time, however, 257 of the limitations

period’s 365 days had passed.1 The period then restarted on May 1, 2020, when the Fourth DCA

1 That’s 257 days from September 28, 2018 to June 12, 2019.

issued its mandate affirming the trial court’s Order Denying the 2019 Rule 3.850 Motion. See Mandate

for Case No. 4D19-3944; 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.”). And therein lies the problem: Between May 1,

2020—when the limitations period restarted—and September 17, 2020—when this Petition was

filed—139 more days elapsed. And, when we add 139 to 257, we get 396. Since 396 is greater than

365, the Petitioner’s claim is time-barred.2

B. § 2244(d)(1)(B)

Hoping to qualify under § 2244(d)(1)(B), the Petitioner alleges that he “did not have access to

the Court from March 2020 thru July 26, 2020 because of the coronavirus pandemic.” Petition at 13.

He says that he “was under quarantine” during that time “after testing positive for the coronavirus.”

Id. at 14. He was “released from isolation on July 24, 2020 and received access to the Court on July

27, 2020.” Id. He was then placed in “quarantine again on September 10, 2020.” Id.

Still, the Petitioner hasn’t met the elements of § 2244(d)(1)(B), which runs the limitations

period from “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.” To begin with, the “impediment” in § 2244(d)(1)(B) “requires state

action that both ‘violated . . . the Constitution or laws of the United States’ and ‘prevented [the

prisoner] from filing’ his federal petition.” Johnson v. Sec’y, Fla. Dep’t of Corr., 513 F.3d 1328, 1331–32

(11th Cir. 2008) (quoting § 2244(d)(1)(B)). And the Petitioner hasn’t alleged that the prison’s

quarantine procedures violated the Constitution or laws of the United States in some way. See generally

2 The Petitioner is thus wrong when he says that the “Petition is timely” because the “sum total of

untolled time to file the Petition is 340 days.” Motion to Show Timeliness [ECF No. 16] at 2.

Petition; see also Wyzykowski v. Sec’y, Fla. Dep’t of Corr., 226 F.3d 1213, 1216 (11th Cir. 2000) (“[I]n the

event of illegal state action preventing the petitioner from filing, the limitation period does not begin

until after the state impediment is removed.” (citing § 2244(d)(1)(B))).

Nor do the Petitioner’s quarantine complaints excuse his untimeliness. The Petitioner,

remember, filed his habeas Petition on September 17, 2020—this, despite reentering quarantine as of

“September 10, 2020.” Petition at 14. Since he managed to file his Petition while he was in quarantine,

the Petitioner has failed to show that his earlier quarantine (from March to July) prevented him from

filing sooner. Plus, for what it’s worth, the Petitioner hasn’t explained why he failed to file his Petition

before the pandemic began in March of 2020. And he’s made no effort to show that the prison’s

justifiable decision to protect its prisoners by effectuating a strict lockdown violated the Constitution

or laws of the United States. In short, § 2244(d)(1)(B) provides no relief.

C. § 2244(d)(1)(C)

The Petitioner doesn’t rely on any new Supreme Court cases, see generally Petition, so §

2244(d)(1)(C) is likewise inapplicable, see § 2244(d)(1)(C) (running the limitations period from “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”).

D. § 2244(d)(1)(D)

Nor does the Petitioner offer any new facts that could not “have been discovered through the

exercise of due diligence.” In Ground One, for instance, the Petitioner says that his resentencing

counsel was ineffective for failing to object to the upward departure. See Petition at 5, 15–23 (“Counsel

had a duty to object to the illegal departure sentences on Counts 1 and 2 as he did on Count 3.”). And,

in Ground Two, the Petitioner blames his resentencing counsel for failing to ask the trial court to

articulate some basis for its upward departure. See id. at 6, 24–30 (“Counsel was ineffective for failure

to object when the sentencing judge imposed upward guidelines departure sentences and did not orally

articulate the reason for departure at the time [the] sentences were imposed.”). We needn’t delve into

the merits of these claims, though, because they’re premised on facts that have been available to the

Petitioner since the day of his resentencing. Section 2244(d)(1)(D), in sum, doesn’t save the Petitioner

here.

D. Equitable Exceptions

Nor can the Petitioner benefit from either of the two equitable exceptions to § 2244(d)(1). To

justify the first such exception—equitable tolling—he would have to “show (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (cleaned up); see also Holland v.

Florida, 560 U.S. 631, 649 (2010) (same). “The diligence required for equitable tolling purposes is

reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (cleaned up). The

Petitioner bears the burden of justifying the application of equitable tolling with “specific” allegations.

Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014) (“The petitioner has the burden

of establishing his entitlement to equitable tolling; his supporting allegations must be specific and not

conclusory.”).

The Petitioner has failed to show that he pursued his rights diligently. In fact, as we’ve said,

he hasn’t told us anything about (1) what efforts he took to file his Petition before the quarantine, or

(2) whether he even tried to access the Court—or otherwise pursue his rights—after the pandemic

began. He thus fails at the first prong of the equitable-tolling test. See Arthur v. Allen, 452 F.3d 1234,

1253 (11th Cir.), opinion modified on reh’g, 459 F.3d 1310 (11th Cir. 2006) (“To show diligence, a

petitioner claiming deficiencies in the prison law library must provide details of the specific actions

taken toward filing the petition.”).

The second exception—actual innocence—helps the Petitioner even less. “[A] credible

showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits

notwithstanding the existence of a procedural bar to relief.” McQuiggin v. Perkins, 569 U.S. 383, 392

(2013). This exception, however, “applies to a severely confined category: cases in which new evidence

shows ‘it is more likely than not that no reasonable juror would have convicted the petitioner.’” Id. at

395 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). As a result, “time limitations apply to the typical

case in which no allegation of actual innocence is made.” Id. at 394. The Petitioner doesn’t allege that

he’s “actually innocent”—which is reason enough to dispense with this second exception. See generally

Petition. Nor could he. The Petitioner, after all, is challenging only his resentencing lawyer’s failure to

object to certain sentencing enhancements—and not to any aspect of his criminal conviction.

The Petitioner, in short, doesn’t qualify for equitable tolling—and he never argues that he

does. See generally id.

EVIDENTIARY HEARING

Because the record unequivocally precludes relief, we needn’t hold an evidentiary hearing on

the Petitioner’s claims. See Shriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the [state court] record

refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not

required to hold an evidentiary hearing.”).

CERTIFICATE OF APPEALABILITY

A COA is appropriate only where the movant makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To deserve a COA, therefore, the movant must show

that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable

or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). But, as here, “[w]here a district court has

disposed of claims . . . on procedural grounds, a COA will be granted only if the court concludes that

‘jurists of reason’ would find it debatable both ‘whether the petition states a valid claim of the denial

of a constitutional right’ and ‘whether the district court was correct in its procedural ruling.” Eagle v.

Linahan, 279 F.3d 926, 935 (11th Cir. 2001) (quoting Franklin v. Hightower, 215 F.3d 1196, 1199 (11th

Cir. 2000)); see also West v. United States, 579 F. App’x 863, 865 (11th Cir. 2014) (“Where the district

court denies rehef on procedural grounds the petitioner seeking a COA must show that: (1) jurists of

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

right; and (2) jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.”’).

Because no “jurists of reason” would find the Petition’s untimeliness “debatable,” the

Petitioner has failed to show that he’s entitled to a COA.

* ok

Having carefully reviewed the record and the governing law, the Court hereby

ORDERS AND ADJUDGES that the Petition [ECF No. 1] is DISMISSED. A COA is

DENIED. Any pending motions, including any requests for an evidentiary hearing, ace DENIED.

All deadlines are TERMINATED. The Clerk of Court shall CLOSE this case.

DONE AND ORDERED in Fort Lauderdale, Florida, this 15th day of June 2021.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

cc: AIL. Burgess

654332

Everglades Correctional Institution

Inmate Mail/Parcels

1599 SW 187th Avenue

Miami, FL 33194

PRO SE

Melynda Layne Melear

Attorney General Office

1515 N Flagler Drive

9th Floor

West Palm Beach, FL 33401-3432

561-837-5000

Email: crimappwpb@myfloridalegal.com

Noticing 2254 SAG Broward and North

Email: CrimAppWPB@MyFloridaLegal.com