DIAZ v. DIXON

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case Number: 24-60215-CIV-MARTINEZ

REINALDO DIAZ,

Petitioner,

v.

FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

/

ORDER DISMISSING 28 U.S.C. § 2254 PETITION AS TIME BARRED

THIS CAUSE came before this Court on Petitioner Reinaldo Diaz’s pro se Petition for

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (the “Petition”), (ECF No. 1.) Petitioner, a

state prisoner, challenges his convictions and sentences in Case No. 03-10586-CF-10A in the

Seventeenth Judicial Circuit in and for Broward County, Florida. This Court has considered the

Petition, the State’s Response to the Order to Show Cause, (ECF No. 18), along with the supporting

appendix and state court transcripts, (ECF Nos. 19, 20), and Petitioner’s Reply, (ECF No. 21.)

After careful consideration, the Petition is DISMISSED as time barred.!

I. PROCEDURAL HISTORY

A. State Proceedings

In 2003, Petitioner and his co-defendant, Israel Lake, were charged with one count of

burglary with an assault or battery while armed (Count 1); two counts of armed robbery (Counts

2 and 3); three counts of armed kidnaping (Counts 4—6); and one count of falsely impersonating

| The dismissal of a section 2254 habeas petition as time-bared is with prejudice and is a

merits adjudication for purposes of successiveness. See Jordan y. Sec’y, Dep’t of Corr., 485 F.3d

1351, 1353 (11th Cir. 2007).

an officer during the commission of a felony (Count 7). (Resp’t Ex. 2, ECF No. 19-1 at 12-16.)

Petitioner’s first trial ended with the trial court striking the jury panel during voir dire. (Resp’t Exs.

10, 11, id. at 55-59.) Petitioner’s second trial ended in a mistrial. (Resp’t Ex. 13, 16, id. at 62, 70.)

Petitioner’s third trial ended in a conviction on counts 1—5. (Resp’t Ex. 20, id. at 80-86.) Petitioner

was sentenced to fifty years in state prison. (Resp’t Ex. 27, id. at 156~71.)

During Petitioner’s second and third trials, defense counsel sought to introduce a

photograph of a former Hialeah police officer who was a suspect in a series of similar robberies

committed with Petitioner’s co-defendant in Miami-Dade County. (Trial Tr., ECF No. 20-3 at

222:13—227:6.) Counsel argued that this officer looked like Petitioner, and he hoped that he would

“get lucky” and have the victim identify the officer as the actual perpetrator. (/d. at 223:5-224:7.)

The trial court denied counsel’s request to admit the photograph. (/d. at 227:2.)

Petitioner filed a direct appeal, and the Fourth District Court of Appeal (“Fourth DCA”)

affirmed Petitioner’s convictions and sentences in a written opinion on August 1, 2007. Diaz v.

State, 961 So. 2d 381 (Fla. 4th DCA 2007).

On April 21, 2009, Petitioner filed a pro se motion for post-conviction relief pursuant to

Fla. R. Crim. P. 3.850. (Resp’t Ex. 39, ECF No. 19-2 at 2-22.) It was denied by the trial court on

May 20, 2011, following an evidentiary hearing. (Resp’t Ex. 46, id. at 50-55.) Petitioner appealed,

and the Fourth DCA affirmed, per curiam. Diaz v. State, 100 So. 3d 706 (Fla. 4th DCA 2012).

Between 2013 and 2020, Petitioner filed several other pro se motions in state court attacking his

convictions and sentences, which were either denied or have not been ruled upon.

B. Federal Habeas Proceeding

On January 29, 2024, Petitioner filed the instant pro se Petition under 28 U.S.C. § 2254 in

the Middle District of Florida. (ECF No. 1.) The Petition was transferred to this Court. (ECF No.

3.) The Petition raises two claims. First, Petitioner alleges that the prosecution withheld evidence

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of his innocence in violation of Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose that

police had developed a different suspect, a former Hialeah police officer who looked like

Petitioner. (ECF No. 1 at 5-8.) Second, Petitioner alleges that the jury returned a legally

inconsistent verdict by convicting him of armed robbery, armed burglary, and armed kidnapping

without finding that he actually possessed a firearm. (/d. at 10-12.) The State responded, arguing

that Petitioner’s claims are untimely, procedurally defaulted, and without merit. (ECF No. 18.)

Petitioner filed a Reply. (ECF No. 21.) The matter is ripe for review.

IL. DISCUSSION — TIMELINESS

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-

year statute of limitations for all federal habeas petitions. See 28 U.S.C. § 2244(d)(1). Under the

AEDPA, the limitations period shall run from the latest of—

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking

such review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of the

United States is removed, if the applicant was prevented from filing

by such action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if that 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).

Here, the relevant provision is sub-section (A): Petitioner’s one-year limitations period

began to run on “the date on which [his] judgment became final by the conclusion of direct

review.” § 2244(d)(1)(A). Petitioner does not allege that the State created an unconstitutional

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impediment to filing the Petition, § 2244(d)(1)(B), his claims do not rely on a newly recognized

tight by the Supreme Court, § 2244(d)(1)(C), nor are they based on newly discovered facts, §

2244(d)(1)(D).?

Here, because the Fourth DCA issued a written opinion affirming Petitioner’s convictions

and sentences, his judgment became final on August 31, 2007—thirty days after the Fourth DCA’s

affirmance—when the period for seeking discretionary review with the Florida Supreme Court

expired. See Fla. R. App. P. 9.120(b); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (holding that

“for a state prisoner who does not seek review in a State’s highest court, the judgment becomes

‘final’ on the date that the time for seeking such review expires”); Cook v. Dixon, No. 21-CV-

14108-BB, 2022 WL 20582638, at *2 (S.D. Fla. Mar. 24, 2022) (“In Florida, if the appellate court

affirms a conviction in a written or elaborated opinion, a petitioner may seek discretionary relief

in the Florida Supreme Court. If discretionary review is not sought, the conviction becomes final

when the 30-day period for seeking review in the Florida Supreme Court expires.” (citation

omitted)). Thus, absent any tolling, Petitioner had until August 31, 2008, to file his Petition.

A. Statutory Tolling

The limitations period is tolled for “[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.” 28 U.S.C. § 2244(d)(2). In other words, the one-year clock continues to tick during any

gaps in the state post-conviction review process. See San Martin v. McNeil, 633 F.3d 1257, 1266

(11th Cir. 2011). Here, the statute of limitations ran untolled for more than one year after

Petitioner’s judgment became final. Petitioner did not file his first post-conviction application—

his Rule 3.850 motion—auntil April 21, 2009, eighteen months after his judgment became final.

* As explained in the Court’s discussion of “Actual Innocence,” infra, the evidence

Petitioner relies on to support his first ground was known to him at trial.

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(Resp’t Ex. 39, ECF No. 19-2 at 2-22.) At that point, none of Petitioner’s filings could toll the

statute of limitations because it had expired. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.

2001) (a post-conviction motion cannot toll the AEDPA’s limitations period after it has expired).

Thus, Petitioner is not entitled to statutory tolling.

B. Equitable Tolling

The AEDPA’s one-year limitations period “is subject to equitable tolling in appropriate

cases.” Holland vy. Florida, 560 U.S. 631, 645 (2010). The Supreme Court has established a two-

part test for equitable tolling: the petitioner “must show ‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely

filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005)). Equitable tolling is, therefore, “an extraordinary remedy limited to rare and

exceptional circumstances and typically applied sparingly.” Cadet v. Fla. Dep’t of Corr., 742 F.3d

473, 477 (11th Cir. 2014) (quotation and citation omitted). The Eleventh Circuit “has held that an

inmate bears a strong burden to show specific facts to support his claim of extraordinary

circumstances that are both beyond his control and unavoidable even with diligence.” Brown y.

Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008).

Petitioner appears to present arguments for equitable tolling. In explaining why he did not

raise his first ground in state court, Petitioner avers that he “is no lawyer . . . struggles with the

English language .. . and until now has been wholly reliant on the mis-advise [sic] . . . of court’s

appointed counsel and [ ] prison law clerks. . . .” (ECF No. 1 at 5.) Petitioner claims that he has

now “been befriended by one knowledgeable in such matters of law” who is “willing to guide the

Petitioner is his quest for relief... .” Ud.)

Petitioner’s pro se status, his lack of legal knowledge or English proficiency, and his

reliance on inmate law clerks are not grounds that support equitable tolling. See Perez v. Florida,

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519 F. App’x 995, 997 (11th Cir. 2013) (“An inability to understand English does not constitute

extraordinary circumstances justifying equitable tolling. Furthermore, we have not accepted a lack

of a legal education and related confusion or ignorance about the law as excuses for a failure to

file in a timely fashion”); Outler v. United States, 485 F.3d 1273, 1282 n.4 (11th Cir. 2007))

(“/PJro se litigants, like all others, are deemed to know of the one-year statute of limitations.”’)

Likewise, Petitioner’s conclusory allegation about attorney misadvice does not support equitable

tolling. See Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1237 (11th Cir. 2017) (“an attorney’s

negligence, even gross negligence, or misunderstanding about the law is not by itself a serious

instance of attorney misconduct for equitable tolling purposes”). Accordingly, Petitioner is not

entitled to equitable tolling of the statute of limitations.

C. Actual Innocence

Lastly, a petitioner may overcome the statute of limitations by showing actual innocence.

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.’” Jd. at 395 (quoting Schlup v. Delo, 513 U.S. 298, 329

(1995)). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.

United States, 523 U.S. 614, 623 (1998). For a claim of actual innocence to be credible, a petitioner

must “support his allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—

that was not presented at trial.” Schlup, 513 U.S. at 324. In assessing such evidence, “the district

court is not bound by the rules of admissibility that would govern at trial[,]” and must “consider

the probative force of relevant evidence that was either excluded or unavailable at trial.” Jd. at

327-28. Such evidence is “unavailable in the vast majority of cases, [and] claims of actual

innocence are rarely successful.” Jd. at 324.

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Petitioner raises a claim of actual innocence in support of his first ground. He alleges a

Brady violation, claiming that the prosecutor withheld evidence of “how police investigators had

developed a different suspect”—former Hialeah police officer Omar Diaz—who allegedly

committed similar robberies with Petitioner’s co-defendant. (ECF No. 1 at 5.) Petitioner’s trial

counsel ultimately obtained this evidence and sought to admit it in the second and third trials.

Counsel informed the trial court that the Miami-Dade Police Department had issued a press release

depicting Omar Diaz as a suspect in robberies involving police impersonation. (Trial Tr., ECF No.

20-3 at 222:18—20.) During the second trial, Petitioner’s counsel obtained a photograph of Omar

Diaz and sought to show it to one of the victims during cross-examination, hoping that he would

“set lucky and have [the victim] say, ‘This is the person who robbed me.”” (/d. at 224:5—7.)

Counsel emphasized that Omar Diaz looked like Petitioner, a point which the trial court

acknowledged but did not fully endorse. (/d. at 226:25—227:2.) Petitioner’s counsel argued that

this photographic evidence was admissible as “reverse Williams rule’? evidence because the

robbery in this case also involved police impersonation (including the use of a police badge), and

the presence of cash in the victims’ home “could suggest that a police officer had information that

he leaked or [ ] used himself.” Ud. at 224:3—5.)

The trial court excluded this evidence in both the second and third trials, finding that it

lacked a proper foundation because the victim had never been shown the photograph of Omar

Diaz. (Id. at 14-15.) On direct appeal, Petitioner argued that the trial court erred in excluding this

evidence because it was crucial to his defense theory of misidentification. (Resp’t Ex. 33, ECF No.

9-1 at 216-222.) The Fourth DCA affirmed, ruling that “[t]here was an insufficient basis to offer

See Williams v. State, 110 So.2d 654 (Fla. 1959) (holding that evidence of other crimes,

wrongs or acts is properly admitted when relevant to prove a material fact in issue). “[A] defendant

may introduce similar fact evidence of other crimes or ‘reverse Williams rule evidence’ for

exculpatory purposes.” Edwards v. State, 857 So. 2d 911, 912 (Fla. 3d DCA 2003).

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the photograph as reverse Williams rule evidence” because “[d]efense counsel did not request to

proffer the photograph to the witness outside the presence of the jury.” Diaz, 961 So. 2d at 382.

In his Petition, Petitioner argues that this photograph (which he attaches to the Petition)

demonstrates that “[t]his is a case of mistaken identification” and that the actual perpetrator was

Omar Diaz. (ECF No. 1 at 6-7); (ECF No. 1-1 at 69.) Petitioner highlights the fact that he was

convicted solely based on eyewitness identification, and that the State lacked physical evidence

connecting him to the crime. (ECF No. 1 at 8.) In his Reply, Petitioner further alleges that the

police badge found in his co-defendant’s car belonged to Omar Diaz, although he provides no

evidence to support this claim. (ECF No. 21 at 5.)

Petitioner’s evidence does not show that “it is more likely than not that no reasonable juror

would have convicted [him].” Schlup, 513 U.S. at 329. Petitioner’s conviction was supported by

the eyewitness identification of two victims, who positively identified Petitioner in both a photo

lineup and at trial and were confident in their identification. (Trial Tr., ECF No. 20-3 at 289:19—

290:5, 429:2-431:16.) The State also possessed evidence that Petitioner had committed similar

robberies in which he impersonated a police officer, and Petitioner’s co-defendant told police that

he and Petitioner had known each other for twenty-seven years. (Resp’t Ex. 8, ECF No. 19-1 at

34-35); (Trial Tr., ECF No. 20-3 at 236:17-18). Although these pieces of evidence were not

presented to the jury, they may be considered by this Court in determining whether Petitioner has

shown actual innocence. See Schlup, 513 at 327 (in evaluating a claim of actual innocence, courts

are “not bound by the rules of admissibility that would govern at trial”); House v. Bell, 547 US.

518, 538 (2006) (holding that the habeas court must consider all the evidence, both “incriminating

and exculpatory,” whether it was admissible at trial or not).

Crucially, Petitioner has offered no evidence linking Omar Diaz to the crime in this case.

The only evidence Petitioner offers in support of his innocence is that Omar Diaz bears some

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resemblance to him and was a suspect in other robberies involving his co-defendant. But Petitioner

has produced no evidence showing that Omar Diaz was ever charged in those robberies, and

Petitioner’s counsel merely speculated at trial that he might “get lucky” and have the victim

identify Omar Diaz as the robber in this case. (Trial Tr., ECF No. 20-3 at 224:6.) That is

insufficient to qualify as “new reliable evidence” supporting an actual innocence claim. Schlup,

513 US. at 324; see also Goshay v. Dixon, No. 22-CV-54, 2022 WL 4001144, at *5 (N.D. Fla.

Aug. 17, 2022), adopted, 2022 WL 4002898 (“[Petitioner’s] speculation falls far short of satisfying

Schlup’s ‘new reliable evidence’ standard.”).

Furthermore, this Court must consider the significant delay in presenting this evidence. See

McQuiggin, 569 U.S. at 399 (“Unexplained delay in presenting new evidence bears on the

determination whether the petitioner has made the requisite showing” of actual innocence). It took

Petitioner more than sixteen years to present his actual innocence claim on post-conviction review,

despite knowing about this evidence since his trial. See id. at 400 (finding that the petitioner’s

evidence was likely “insufficient to meet Schlup’s actual-innocence standard” where the district

court found that the evidence was “substantially available to [the petitioner] at trial.”). Petitioner

alleges that was unable to present this claim until he befriended an inmate law clerk who helped

him file the instant Petition. But the credibility of this assertion is belied by the fact that Petitioner

filed multiple post-conviction motions and appeals in state court, asserting numerous grounds for

relief.

Finally, the fact that this evidence was available at trial, and two different trial judges

considered it and declined to admit it, underscores its insufficiency to meet Schlup’s high bar. See

Glenn y. Sec’y, Dep’t of Corr., No. 18-13622-F, 2018 WL 11298687, at *1 (11th Cir. Nov. 20,

2018) (finding that the petitioner’s claims were not “based on ‘new’ evidence, as they both are

based on information that was available or presented at trial”); Blake v. Sec’y, Dep’t of Corr., No.

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18-13739-K, 2019 WL 11805025, at *1 (11th Cir. Mar. 29, 2019) (finding that the petitioner’s

evidence that “two witnesses at his trial later recanted their testimonies” did not meet the actual

innocence standard where “the state court that heard the witnesses’ recantations found that they

were not credible”). In sum, Petitioner has not demonstrated actual innocence.

Il. EVIDENTIARY HEARING

Petitioner is not entitled to an evidentiary hearing because he has not alleged specific facts

that, if true, would entitle him to habeas relief. Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740,

763 (11th Cir. 2010) (“Having alleged no specific facts that, if true, would entitle him to federal

habeas relief, [Petitioner] is not entitled to an evidentiary hearing.”).

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that:

1. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (ECF No. 1), is

DISMISSED as time barred.

2. A certificate of appealability is DENIED because Petitioner has failed to make a

substantial showing of the denial of a constitutional right. See § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000).

3. The Clerk is directed to CLOSE this case and mail a copy of this Order to Petitioner

at the address of record.

4. Final judgment shall be entered by separate order.

DONE AND ORDERED in Chambers at Miami, Florida, this 3) day of May, 2024.

angie

UNITED STATES DISTRICT JUDGE

Copies provided to:

Counsel of record via CM/ECF

Reinaldo Diaz, pro se

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