Wayman Sims v. State of Florida

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

CASE NO. 21-14153-CIV-CANNON/McCabe

DUSTIN ALLAN WAYMAN SIMS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

______________________________________/

ORDER ACCEPTING IN PART AND REJECTING IN PART REPORT AND

RECOMMENDATION ON 28 U.S.C. § 2254 PETITION

THIS CAUSE comes before the Court upon the Petition for Writ of Habeas Corpus by a

state prisoner filed by Dustin Allan Wayman Sims (“Petitioner”) pursuant to 28 U.S.C. § 2254

[ECF No. 1]. On October 28, 2022, Magistrate Judge Ryon M. McCabe issued a Report and

Recommendation on the Petition (the “Report”) [ECF No. 28]. The Report determines that a

portion of the Petition is timely under 28 U.S.C. § 2244(d)(1)(D) of the Antiterrorism and Effective

Death Penalty Act (AEDPA) but ultimately recommends (1) dismissal of the Petition for lack of

exhaustion and (2) denial of the Petition on the merits because it raises no cognizable or redressable

federal constitutional claim [ECF No. 28]. Respondent filed objections to the Report, disagreeing

with the Report’s conclusion on timeliness but otherwise agreeing with the Report [ECF No. 29].

Petitioner likewise filed objections to the Report, challenging the Report’s exhaustion and

merits-based conclusions [ECF No. 30].

Upon a de novo review, the Court ACCEPTS IN PART AND REJECTS IN PART the

Report. The Court ACCEPTS the Report’s recommendation to dismiss the Petition for lack of

exhaustion and to deny the Petition on the merits. The Court REJECTS the Report’s

determination that the decision by Florida’s First District Court of Appeals in Williams v. State,

304 So. 3d 843 (Fla. Dist. Ct. App. 2020), granting post-conviction relief to a defendant in another

case constitutes a new “fact” sufficient to render the Petition timely under 28 U.S.C.

§ 2244(d)(1)(D) [ECF No. 28 pp. 9–10].

BACKGROUND

Underlying State Criminal Case

On August 28, 2015, less than two years after being released from a county jail for a prior

conviction and sentence related to firearm and theft charges, the State charged Petitioner by

amended information with the following charges: robbery with a deadly weapon (Count 1),

aggravated assault with a deadly weapon (Count 2), burglary of a structure while armed (Count 3),

burglary of a conveyance while armed (Count 4), and third-degree grand theft (Count 5)

[ECF No. 14-1 pp. 4–5, 14]. During a two-day trial, the prosecution produced evidence showing

that Petitioner burgled a church and vehicle, robbed a church pastor at knife point, and stole a

laptop and cell phone [ECF No. 14-1 pp. 504–05, 703–05, 754, 797). At the conclusion of the

trial, the jury found Petitioner guilty on all counts [ECF No. 14-1 pp. 7–9, 742–44].

On October 19, 2015, the trial court sentenced Petitioner to life in prison on Counts I, III,

and IV pursuant to the Prisoner Releasee Reoffender (“PRR”) provisions of sections

775.082(9)(a)(1) and 775.082(9)(a)(3) of the Florida Statutes (2015) [ECF No. 14-1 pp. 806–09].

These sections mandated enhanced penalties, including life in prison, for defendants who

committed certain qualifying offenses “within 3 years of being released from a state correctional

facility . . . .” Fla. Stat. § 775.082(9)(a)(1) (2014) (emphasis added). In doing so, the trial court

rejected Petitioner’s argument that Petitioner did not qualify as a PRR because he served his

previous sentence in a county jail as opposed to a state correctional facility [ECF No. 14-1

pp. 779–80]. The trial court rejected Petitioner’s argument by relying on persuasive authority from

Florida’s Fifth District Court of Appeals, specifically, Louzon v. State, 78 So. 3d 678 (Fla. Dist.

Ct. App. 2012) [ECF No. 14-1 pp. 781–95].1 In Louzon, the Fifth District Court of Appeals

rejected the same argument that Petitioner made at sentencing, namely, that a defendant could not

qualify as a PRR when the defendant is released from a county jail as opposed to a state

correctional facility. Louzon, 78 So. 3d at 680–81. Accordingly, the trial court determined that it

had no discretion under the law and was required to sentence Petitioner to life in prison pursuant

to the PRR statute [ECF No. 14-1 pp. 806–07].

Direct Appeal to Fourth District Court of Appeals

On October 27, 2015, Petitioner appealed his conviction and sentence to Florida’s Fourth

District Court of Appeals [ECF No. 14 pp. 68–69]. The Fourth District affirmed on November 2,

2016, citing to the Fifth District’s decision in Louzon and its own decision three years before in

Taylor v. State, 114 So. 3d 335 (Fla. Dist. Ct. App. 2013) [ECF No. 14 pp. 78, 139]. Sims v. State,

202 So. 3d 954, 955 (Fla. Dist. Ct. App. 2016). Petitioner did not seek further review with the

Florida Supreme Court. As such, his conviction and sentence became final 90 days later, on

January 31, 2017. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (“Applying the rule in

Kaufmann2 to the present case, Appellant was entitled to file a petition for a writ of certiorari in

the United States Supreme Court within 90 days of the entry of the judgment against him by the

Florida Supreme Court. The statute of limitations under 28 U.S.C. § 2244(d) should not have

1 Petitioner was convicted and sentenced in the Nineteenth Judicial Circuit in and for St. Lucie

County, which is part of Florida’s Fourth District Court of Appeal.

2 Kaufmann v. United States, 282 F.3d 1336 (11th Cir. 2002).

begun to run until this 90–day window had expired.” (internal citation and footnote omitted)); Fed.

R. Civ. P 6(a)(1) (“When the period is stated in days or a longer unit of time . . . exclude the day

of the event that triggers the period . . . .”).

Rule 3.850 Post-Conviction Motion

On November 18, 2018, 656 untolled days later, Petitioner filed a motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 [ECF No. 14-1

pp. 140–67]. Although Petitioner’s Rule 3.850 Motion referenced the trial court’s determination

that Petitioner was classified as a PRR, the Rule 3.850 Motion did not raise that issue as a basis

for postconviction relief [ECF No. 14-1 pp. 140–67]. Instead, Petitioner argued in the Rule 3.850

Motion that he was entitled to such relief because his trial counsel was ineffective through a

combination of (1) failing to seek suppression of the victim’s out of court line-up identification;

(2) failing to object to, or mount any defense supported by expert testimony to rebut, fingerprint

evidence; and (3) failing to object to statements that were prejudicial toward Petitioner

[ECF No. 14-1 pp. 144–63]. The trial court denied the motion in part on May 2, 2019, and in full

on November 2, 2019 [ECF No. 14-1 pp. 175–77, 205–06]. On April 2, 2020, the Fourth District

Court of Appeals affirmed the trial court’s order [ECF No. 14-1 p. 213].

By the time Petitioner filed his Rule 3.850 Motion, the federal limitations period had

expired, and the Rule 3.850 Motion did not toll the federal limitations period. See Tinker v. Moore,

255 F.3d 1331, 1333 (11th Cir. 2001) (holding that a properly filed application for state

postconviction relief does not provide statutory tolling of the AEDPA limitations period where the

motion for state postconviction relief was not filed until after section 2244(d)’s one-year limitation

period had expired). While Petitioner’s Rule 3.850 Motion was pending, however, the Florida

Supreme Court held in State v. Lewars, 259 So. 3d 793 (Fla. 2018), that a defendant who is released

from a county jail rather than a state correctional facility does not qualify as a PRR. Id. at 802–

03. In doing so, the Florida Supreme Court expressly rejected the Fifth District Court of Appeals’

decision in Louzon. Id. at 802.

Rule 3.800(a) Motion to Correct Illegal Sentence

Following the Lewars decision, and while Petitioner’s Rule 3.850 Motion was still pending,

Petitioner filed his first Rule 3.800(a) Motion under the Florida Rules of Criminal Procedure to

correct an illegal sentence [ECF No. 14-1 pp. 217–20; ECF No. 15-1 pp. 7–10]. In that Rule

3.800(a) Motion, Petitioner argued that he was serving an illegal life sentence because the Florida

Supreme Court’s decision in Lewars should apply retroactively to his case [ECF No. 14-1

pp. 219–220]. On May 2, 2019, the trial court denied Petitioner’s Motion, determining that

Petitioner’s sentence had become final two years prior to the Lewars decision, and that the Lewars

decision did not apply retroactively [ECF No. 14-1 pp. 227–28 (incorporating State’s response)].

The Fourth District Court of Appeals subsequently affirmed the trial court’s denial of Petitioner’s

Rule 3.800(a) Motion, agreeing that Lewars does not apply retroactively under Florida’s Witt

retroactivity law. Sims v. State, 286 So. 3d 292, 293–94 (Fla. Dist. Ct. App. 2019) (citing Witt v.

State, 387 So. 2d 922, 931 (Fla. 1980)).3 Petitioner appealed to the Florida Supreme Court, but on

April 16, 2020, the Florida Supreme Court declined to accept jurisdiction—making the Fourth

District Court of Appeals’ decision final [ECF No. 14-1 pp. 278–79, 314].

3 While Petitioner’s appeal on his first Rule 3.800(a) Motion was pending, the Florida legislature

amended section 775.082(9)(a) to abrogate Lewars. Ch. 2019-167, § 30, at 37–38, Laws of Fla.

(amending § 775.082(9)(a)(1)). The amended statute now reads, in pertinent part: “‘Prison

releasee reoffender’ means any defendant who commits, or attempts to commit: [qualifying

offenses] within 3 years after being released from a state correctional facility operated by the

Department of Corrections or a private vendor, a county detention facility following incarceration

for an offense . . . .” Fla. Stat. § 775.082(9)(a)1 (emphasis added) (2019).

First District Court of Appeals’ Decision in Williams v. State

On November 4, 2020, Florida’s First District Court of Appeals issued an opinion in

Williams v. State, 304 So. 3d 843 (Fla. Dist. Ct. App. 2020), a case involving another prisoner

seeking state habeas relief. In Williams, the defendant was serving a fifteen-year sentence because

he, like Petitioner, was classified as a PRR after serving time in a county jail. Id. at 843. Unlike

Petitioner, however, the defendant in Williams had sought review in the Florida Supreme Court as

to the lawfulness of his PRR status on direct appeal, arguing that the First District Court of

Appeals’ interpretation of the PRR provision conflicted with the Second District Court of Appeals’

interpretation in Lewars v. State, 277 So. 3d 143 (Fla. Dist. Ct. App. 2017). Id. The First District

Court of Appeals declined to certify the issue to the Florida Supreme Court, effectively ending

Williams’s direct appeal. Id. But then the Florida Supreme Court issued Lewars, prompting

Williams to initiate state post-conviction relief proceedings—ultimately leading the First District

Court of Appeals to grant habeas relief on miscarriage-of-justice grounds, to vacate Mr. Williams’s

sentence, and to remand for resentencing. In granting such relief, the First District Court of

Appeals recognized Williams’s prior request for certification of a conflict, stating as follows:

“Because Petitioner asked for certification of conflict with Lewars, it would be manifestly unjust

under the circumstances to deny Petitioner the same relief as was afforded the defendant in

Lewars.” Id.

Second Rule 3.800(a) Motion to Correct Illegal Sentence

Following the First District Court of Appeals’ decision in Williams, Petitioner filed a

second Rule 3.800(a) Motion [ECF No. 25-2 pp. 73–77]. Despite not challenging his conviction

and sentence on direct appeal to the Florida Supreme Court, Petitioner argued in his second Rule

3.800(a) Motion that he should be afforded the same relief given to the defendant in Williams,

noting that Petitioner’s sentence was not final at the time Lewars was decided [ECF No. 25-2

pp. 73–77]. On April 25, 2021, the state trial court denied Petitioner’s second Rule 3.800(a)

Motion, and on August 26, 2021, the Fourth District Court of Appeals affirmed [ECF No. 25-2

pp. 79–80, 147].

Instant 28 U.S.C. § 2254 Petition

Petitioner filed the instant Habeas Petition on April 1, 2021 [ECF No. 1], more than four

years after his state conviction and sentence became final (and prior to the state trial court ruling

on Petitioner’s second Rule 3.800(a) Motion). Petitioner asserts that he “does not qualify as a

PRR,” that “his life sentence is illegal,” and that “the failure to provide [him] relief violates the

Constitution” [ECF No. 1 p. 6]. At bottom, Petitioner makes a broad argument that the state courts

violated his Fourteenth Amendment due process rights by (1) failing to apply Lewars retroactively

to his case; (2) failing to apply Florida’s “pipeline” doctrine to his case; and (3) treating him

differently than the defendant in Williams who received habeas relief [ECF No. 1 pp. 17–19].

After referral from this Court, oral argument, and supplemental briefing [ECF No. 23],

Judge McCabe issued the Report [ECF No. 28]. Judge McCabe deemed the Petition timely under

28 U.S.C. § 2244(d)(1)(D) but recommended dismissal for failure to exhaust state remedies and

denial on the merits for failing to raise a cognizable or meritorious federal constitutional claim

[ECF No. 28]. Both parties filed competing Objections to the Report as described above

[ECF Nos. 29, 30]. The Report is ripe for adjudication.

LEGAL STANDARD

To challenge the findings and recommendations of a magistrate judge, a party must file

specific written objections identifying the portions of the proposed findings and recommendation

to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822

(11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court

reviews de novo those portions of the report to which objection is made and may accept, reject, or

modify in whole or in part, the findings or recommendations made by the magistrate judge.

28 U.S.C. § 636(b)(1).

DISCUSSION

I. Timeliness under 28 U.S.C. § 2244(d)(1)(D)

As noted, Judge McCabe determines in the Report that the Petition is timely under 28

U.S.C. § 2244(d)(1)(D) “to the extent it raises a Fourteenth Amendment due process claim based

on an alleged disparity with the Williams case” [ECF No. 28 p. 10].4 Judge McCabe reached this

4 Respondent objects to the Report’s decision even to consider timeliness under section

2244(d)(1)(D), pointing out that Petitioner did not invoke section 2244(d)(1)(D) in his initial

Petition or Reply [ECF No. 29 p. 4]. A court has discretion in habeas cases to raise the timeliness

of a petition sua sponte so long as it gives the parties notice and an opportunity to respond, and

otherwise comports with the dictates of Supreme Court authority on the subject—including the

instruction not to consider a timeliness defense sua sponte in cases of intentional

relinquishment. See Wood v. Milyard, 566 U.S. 463, 473 (2012); Day v. McDonough, 547 U.S.

198, 210–11 (2006); Jackson v. Sec’y for Dep’t of Corr., 292 F.3d 1347, 1349 (11th Cir.

2002). Judge McCabe’s timeliness review in this case accorded with those authorities. Petitioner

first addressed the matter of timeliness in the Petition itself, albeit relying on Lewars as a new

“predicate” and citing section 2244(d)(2), not 2244(d)(1)(D) [ECF No. 1 p. 14]. Respondent

raised the defense of untimeliness in its Response, focusing on the date on which Petitioner’s

conviction became final and the length of untolled time, see 28 U.S.C. § 2244(d)(1)(A), (d)(2)

[ECF No. 13 p. 9]. Petitioner then responded on the matter of timeliness in Reply, at that point

citing section 2244(d)(1)(C) and (d)(1)(D) and relying again on Lewars as the triggering point for

assessing timeliness [ECF No. 15 pp. 2, 3]. Following those steps, Judge McCabe held a hearing

and gave all parties notice and an opportunity to be heard on the section 2244(d)(1)(D) issue,

ordering supplemental briefing on “whether a disparate sentencing result achieved by another

defendant in another court can constitute a ‘factual predicate’ for purposes of 28 U.S.C.

§ 2244(d)(1)(D)” [ECF No. 24]. On this record, in the absence of any intentional relinquishment,

and given the ample procedure afforded, the Court sees no abuse of discretion in Judge McCabe’s

conclusion by treating the Williams decision—in which the First District Court of Appeals afforded

habeas relief to Mr. Williams—as a new “factual predicate” sufficient to trigger the one-year

limitation period under 28 U.S.C. § 2244(d)(1)(D) [ECF No. 28 pp. 9–10].5 That conclusion is

incorrect: the First District Court of Appeals’ legal decision in another case regarding another

defendant did not affect the fact of Petitioner’s conviction, sentence, or judgment. The Williams

decision thus does not qualify as a new “factual predicate” to be “discovered through the exercise

of due diligence” within the meaning of 28 U.S.C. § 2244(d)(1)(D).6

Congress enacted AEDPA “with the ‘overriding purpose’ of achieving finality in federal

and state criminal cases.” Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1154 (11th Cir. 2014).

“In keeping with its finality purpose, § 2244(d)(1) restricts a state prisoner’s limitations period for

filing a § 2254 habeas petition to one year, which begins to run from the latest of four specified

dates.” Id. (internal quotation marks and citations omitted). The only asserted avenue left for

timeliness in this case is section 2244(d)(1)(D), which provides that the one-year federal

limitations period runs from “the date on which the factual predicate of the claim or claims

consideration of section 2244(d)(1)(D). Judge McCabe also addressed the merits of the Petition,

and neither party has been materially prejudiced on account of the Report’s close inquiry of section

2244(d) as a whole, including subsection (d)(1)(D).

5 Judge McCabe correctly determined that the Petition is untimely under 28 U.S.C.

§ 2244(d)(1)(A) and (C) [ECF No. 28 pp. 8–9]. Petitioner raises no objection to those conclusions.

6 Rounding out the section 2244(d)(2)(D) inquiry, Judge McCabe also concluded that Petitioner

acted with due diligence because the purported new “fact,” Williams, “arose not in Petitioner’s

own case, but in another case over which he had no control” [ECF No. 28 p. 10]. Aron v. United

States, 291 F.3d 708, 711 (11th Cir. 2002) (“[T]he court should begin the timeliness inquiry under

§ 2255(4) by determining whether the petitioner exercised due diligence . . . .”). The Court does

not disagree that Petitioner pursued relief diligently following the decision in Williams, but for the

reasons stated below, Williams does not constitute a new “factual predicate” to begin with under

Section 2255(d)(1)(D), making inapt the “due diligence” inquiry in this case.

presented could have been discovered through the exercise of due diligence.” 28 U.S.C.

§ 2244(d)(1)(D).

Section 2244(d)(1)(D), like the analogous provision in section 2255(f)(4),7 has been

referred to as the “newly discovered evidence provision,”8 and it has been applied to a limited set

of “factual predicates”: “(1) [the] receipt of a copy of an appellate brief and discovery of an

attorney’s failure to file an appeal, (2) vacatur of a prior state conviction, and (3) the date of a state

parole board’s decision.” Frederick, 300 F. App’x at 733 (internally citing Aron, 291 F.3d at 712;

Rivers v. United States, 416 F.3d 1319, 1322 (11th Cir. 2005); and Day v. Hall, 528 F.3d 1315,

1317 (11th Cir. 2008)). As the Eleventh Circuit has explained in describing the requirements of

section 2244(d)(1)(D), “‘it should go without saying that a factual predicate must consist of facts.’”

Cole, 768 F.3d at 1155 (11th Cir. 2014) (italics in original) (quoting Rivas v. Fischer, 687 F.3d

514, 535 (2d Cir. 2012)); id. at 1155 (“The ‘factual predicate’ also has been referenced as the

underlying ‘vital facts’ of a petitioner’s claim.” (quoting Ford v. Gonzalez, 683 F.3d 1230, 1235

(9th Cir. 2012)).

Against this backdrop, Petitioner’s reliance on the Williams case as a new “factual

predicate” fails. The plain language of section 2244(d)(1)(D) refers to facts, yet the Williams

decision is a legal opinion that did not impact the fact of Petitioner’s sentence. Bazemore v. United

States, 595 F. App’x 869, 873 (11th Cir. 2014) (citing 28 U.S.C. § 2254(f)(4));see also Madaio v.

United States, 397 F. App’x 568, 570 (11th Cir. 2010) (“[T]he discovery of a new court legal

7 28 U.S.C. § 2255(f)(4) (triggering provision that depends on “the date on which the facts

supporting the claim or claims presented could have been discovered through the exercise of due

diligence”).

8 See McQuiggin v. Perkins, 569 U.S. 383, 400–01 (2013); Melson v. Allen, 548 F.3d 993, 998–99

(11th Cir. 2008); Frederick v. McNeil, 300 F. App’x 731, 733 (11th Cir. 2008) (citing cases).

opinion, as opposed to new factual information affecting the claim, does not trigger the limitations

period” under section 2255(f)(4)). Indeed, Williams did not arise in Petitioner’s proceeding, and

it did not alter the fact or existence of Petitioner’s judgment in any factual way [see ECF No. 28

p. 10 (noting that Williams did not arise in Petitioner’s case)].

Petitioner has cited no authority in which a court has deemed a legal opinion in another

defendant’s case a “factual predicate” satisfying section 2244(d)(1)(D) or its sister provision in

section 2255(f)(4). Nor is the Supreme Court’s decision in Johnson v. United States, 544 U.S. 295

(2005), such a case. In Johnson, a federal court imposed an enhanced sentence on Mr. Johnson

based on a prior conviction in Georgia state court. Id. at 298. The Georgia trial court subsequently

vacated that state conviction after determining that Mr. Johnson had not voluntarily waived his

right to counsel. Id. at 301. Within three months of the vacatur of his state court conviction, Mr.

Johnson filed a habeas petition under section 2255 seeking relief from his federal

sentence—relying on the state vacatur order as “new evidence” supporting timeliness under

section 2255(f)(4). Id. Ultimately, after not prevailing in the Eleventh Circuit, the Supreme Court

granted Mr. Johnson’s petition to address “whether vacatur of a prior state conviction used to

enhance a federal sentence can start the 1-year limitation period under the fourth alternative of the

§ 2255 rule.” Id. at 302. On that question, the Court answered yes—the state-court vacatur of a

defendant’s conviction used to enhance a federal sentence can be treated as a matter of “fact” for

purposes of AEDPA’s newly-discovered limitation provision, provided the petitioner shows due

diligence in seeking the state court vacatur.9 Id. at 302.

9 The Supreme Court ultimately determined that Mr. Johnson’s Section 2255 Petition remained

untimely, because Mr. Johnson was not diligent in seeking the vacatur of his state court conviction.

Johnson, 544 U.S. at 311.

The sequence of events in Johnson is nowhere close to what happened here, for the reasons

already stated. No sentence or conviction was vacated in Petitioner’s case, nor did anything

happen in Petitioner’s proceeding itself to change the fact or existence of his conviction or

judgment. What happened was that another prisoner, Williams, sought and obtained habeas relief

on miscarriage-of-justice grounds, citing Lewars and his own earlier attempt to seek Florida

Supreme Court review via a certification of conflict. But nothing about Williams’s case had the

effect of altering the existence or fact of Petitioner’s conviction, sentence, or judgment.

Accordingly, Johnson does not apply. See Sanchez v. United States, 318 F. App’x 801, 804 n.6

(11th Cir. 2009) (“The Supreme Court [in Johnson] did not address whether court opinions also

constitute matters of fact. Thus, the ‘court ruling’ to which [defendant] referred was not the sort

of court ruling at issue here, and Johnson is irrelevant.”); see also Keller v. Pringle, 867 F.3d 1072,

1075 (8th Cir. 2017) (rejecting the defendant’s argument that Johnson supported his position that

new legal opinions qualified as “factual predicates” under section 2244(d)(1)(D) because “the state

court decisions involving other defendants did not invalidate any operative fact in [defendant’s]

case”).

Because Williams does not constitute a new fact triggering the statute-of-limitations under

section 2244(d)(1)(D), the timeliness of the instant Petition is properly determined based on “the

date on which the judgment became final by the conclusion of direct review or the expiration of

the time for seeking such review.” 28 U.S.C. §2244(d)(1)(A). And, as Judge McCabe correctly

pointed out, Petitioner’s federal limitations period under section 2244(d)(1)(A) expired on January

31, 2018 [ECF No. 28 p. 8]. See Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1289 n.1 (11th

Cir. 2007) (noting that limitations period should be calculated using “the anniversary date of the

triggering event”). Petitioner did not file the instant Petition until April 1, 2021, over three years

after the federal limitations period expired. Therefore, the instant Petition is untimely.

II. Exhaustion and Merits

Although the Court disagrees with the Report’s determination on timeliness, the Court

accepts the Report’s other well-reasoned conclusions, both on exhaustion and on the merits of

Plaintiff’s federal due process claims. As to those issues, Petitioner makes a series of generalized

and unmeritorious objections to the Report [ECF No. 30].

Petitioner first “objects to the finding” in the background section of the Report in which

Judge McCabe notes that Petitioner did not raise the issue of his PRR status—or any issue related

to the constitutionality of his sentence—in his first Rule 3.850 Motion [ECF No. 30 p. 2 (objecting

to ECF No. 28 p. 4 (“Petitioner raised numerous grounds for relief, but did not raise his PRR status

or any issue relating to the constitutionality of his sentence.”))]. The basis of this objection is

unclear, but in any event, the Report is correct that Petitioner did not raise any claim in his first

Rule 3.850 Motion related to his PRR status or the constitutionality of his sentence. Petitioner

does not dispute that point in his objection, conceding that the PRR was not “an issue to be litigated

in the 3.850 Motion” [ECF No. 30 p. 2]. This objection fails.

Petitioner next criticizes the Report’s conclusion that he did not raise a federal due process

claim in state court [ECF No. 30 pp. 2–3]. Petitioner says he sufficiently raised a federal due

process claim because (1) “paragraph 6 of his Florida Rule of Criminal Procedure 3.800 Motion .

. . specifically and correctly indicated that the United States Supreme Court precedent” governed

his pipeline argument; and (2) the “WHEREFORE” clause in his Rule 3.800 Motion “argued

denial of relief would be a ‘due process’ violation” [ECF No. 30 ¶ 3]. These arguments are without

merit. As to Petitioner’s assertion that he invoked United States Supreme Court precedent,

specifically Padilla v. Kentucky, 559 U.S. 356 (2010), in paragraph 6 of his Rule 3.800 motion,

the Rule 3.800 motion made merely a passing reference to the Supreme Court’s decision in Padilla

and to the Florida Supreme Court’s reliance on Padilla in Castano v. State, 119 So. 3d 1208 (Fla.

2012) [ECF No. 25-2 p. 74]. This fleeting citation to Padilla, with no discussion of due process,

is insufficient to fairly present any federal constitutional issue before the State court.10 Nor is the

singular reference to “due process” at the bottom of the Motion in the “WHEREFORE”

clause—again with no development or analysis—adequate to raise a federal due process claim.

Indeed, as the Eleventh Circuit has stated, “‘[o]blique references which hint that a [federal] theory

may be lurking in the woodwork will not turn the trick.’” Kelley v. Sec’y for Dep’t of Corr., 377

F.3d 1317, 1345 (11th Cir. 2004) (quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)).

Only after a state prisoner has afforded the state courts an opportunity to consider the “exact same

claim” (and take any corrective action) can a federal court consider that claim on federal habeas

review. Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1158 (11th Cir. 2022), cert. denied sub

nom. Green v. Dixon, 143 S. Ct. 982 (2023). These principles are “vital” to the maintenance of

“finality, federalism, and comity between state and federal courts.” Id. Petitioner’s objection fails.

Petitioner’s final objections go to the merits of his due process claim (and to the subsidiary

due process claims raised therein) [ECF No. 30 pp. 3–4; see ECF No. 1 pp. 17–19; ECF No. 28

p. 12 (describing Petitioner’s claims within the umbrella of due process)]. As he argued in the

Petition and Reply, Petitioner asserts that his PRR issue was “still in the Pipeline” at the time

Lewars was decided and that he was similarly situated to the defendant in Williams [ECF No. 30

10 Padilla concerned ineffective assistance of counsel in the immigration context. Castano applied

Padilla to a state defendant because Padilla was issued while that state defendant’s post-conviction

motion was pending on the same issue. Neither decision cites federal due process or the Fourteenth

Amendment.

¶¶ 5–6]. The Court disagrees for the reasons stated in the Report and further explained herein.

Even assuming Petitioner’s due process claim(s) were timely and fully exhausted, and further

assuming that a state court violates a defendant’s federal due process rights by applying a case

retroactively to one prisoner and not another who is similarly situated, no such violation is present

here because Petitioner and Mr. Williams are not similarly situated. As the Report explains

[ECF No. 28 pp. 14–18], Mr. Williams and Petitioner were not similarly situated at the time

Lewars was decided, and Florida did not misapply its so-called “pipeline” rule—a rule that requires

disposition of a case on appeal to be “made in accord with the law in effect at the time of the

appellate court’s decision rather than the law in effect at the time the judgment appealed was

rendered.” Hendeles v. Sandford Auto Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978). In other

words, Petitioner could receive the benefit of Lewars under Florida’s pipeline rule only if “an

appellate court mandate [had] not yet issued on [his] direct appeal.” Castanoe, 119 So. 3d at 1210

(Pariente, J., concurring).11 Yet in Petitioner’s case, the mandate on his direct appeal was issued

on November 18, 2016 [ECF No. 25-2 p. 12], over two years before the Florida Supreme Court

decided Lewars. Thus, Petitioner could not have received the benefit of Lewars under Florida’s

pipeline rule. Petitioner’s pipeline argument fails.

Petitioner’s assertion that the First District Court of Appeals retroactively applied Lewars

to Mr. Williams is also incorrect. The First District Court of Appeals did not conduct a

retroactivity analysis when it granted Mr. Williams the benefit of the Florida Supreme Court’s

decision in Lewars. Williams, 304 So. 3d at 843; compare with Sims, 286 So. 3d at 293–294.

Rather, as discussed above, the First District Court of Appeals granted Williams habeas relief

11 This is analogous to the federal rule established in Griffith v. Kentucky, 479 U.S. 314, 328 (1987)

(“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases,

state or federal, pending on direct review or not yet final.”).

because on direct appeal, Williams “asked for certification of conflict with [the Second District

Court of Appeals’ decision in] Lewars,” making it “manifestly unjust under the circumstances to

deny [Mr. Williams] the same relief as was afforded the defendant [by the Florida Supreme Court]

in Lewars.” Williams, 304 So. 3d at 843. That unique posture is very different from the procedural

posture pertinent to Petitioner, whose conviction was already final and who had already filed his

Rule 3.850 postconviction motion prior to the Florida Supreme Court issuing its decision in

Lewars. Petitioner’s final objections to the Report’s merits-based conclusions also fail.

III. Certificate of Appealability

Under 28 U.S.C. § 2254(c)(2), “[a] certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2254(c)(2). To meet this standard, a petitioner must show that “jurists of reason” would find

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.” Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 483 (2000)). It is doubtful

whether a certificate of appealability is warranted in this case based on the record and authorities

cited herein. But out of an abundance of caution, and in light of the Report, the Court issues a

certificate of appealability on the following issues as modified from the Report:

(1) Whether the First District Court of Appeal’s legal ruling in Williams v. State, 304

So. 3d 843 (Fla. Dist. Ct. App. 2020), constitutes a new “factual predicate” under

28 U.S.C. § 2244(d)(1)(D) as applied to Petitioner;

(2) Whether Petitioner properly exhausted in state court his federal due process claim

as raised in the instant Petition;

(3) Whether the state court’s decision not to give Petitioner the benefit of State v.

Lewars, 259 So. 3d 793 (Fla. 2018), in his motion to correct illegal sentence, Sims

v. State, 286 So. 3d 292 (Fla. Dist. Ct. App. 2019), “resulted in a decision that was

contrary to, or involved an unreasonable application, of clearly established Federal

law, as determined by the Supreme Court of the United States.”

CASE NO. 21-14153-CIV-CANNON/McCabe

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED AND ADJUDGED as follows:

1. The Report [ECF No. 28] is ACCEPTED IN PART AND REJECTED IN PART in

accordance with this Order.

2. Petitioner’s Petition for Relief from a Conviction or Sentence [ECF No. 1] is

DISMISSED as untimely and unexhausted and alternatively DENIED on the merits.

3. A certificate of appealability shall issue on the three issues identified in this Order.

4. Final Judgment will be entered by a separate order.

5. The Clerk is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 17th day of August

2023.

UNITED STATES DISTRICT JUDGE

ce: counsel of record

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