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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SEAN DAVIS,

Petitioner,

v. Case No. 3:21-cv-697-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Sean Davis, an inmate of the Florida penal system, initiated

this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas

Corpus by a Person in State Custody. Doc. 1. Petitioner is serving a life term of

incarceration for second degree murder. Respondents filed a Response arguing

that the case is untimely filed and requesting dismissal with prejudice. See

generally Doc. 6 (Resp.).1 Petitioner replied. See Doc. 10. This case is ripe for

review.

1 Attached to the Response are several exhibits. The Court cites the exhibits as

“Resp. Ex.”

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) A 1-year period of limitation shall apply to

an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a

State court. The limitation period shall run

from the latest of--

(A) the date on which the judgment

became final by the conclusion of

direct review or the expiration of

the time for seeking such review;

(B) the date on which the

impediment to filing an application

created by State action in violation

of the Constitution or laws of the

United States is removed, if the

applicant was prevented from filing

by such State action;

(C) the date on which the

constitutional right asserted was

initially recognized by the Supreme

Court, if the right has been newly

recognized by the Supreme Court

and made retroactively applicable

to cases on collateral review; or

(D) the date on which the factual

predicate of the claim or claims

presented could have been

discovered through the exercise of

due diligence.

(2) The time during which a properly filed

application for State post-conviction or other

collateral review with respect to the pertinent

judgment or claim is pending shall not be

counted toward any period of limitation under

this subsection.

28 U.S.C. § 2244(d).

III. Analysis

On October 13, 2011, a jury found Petitioner guilty of second degree

murder. Resp. Ex. 1. On November 8, 2011, the trial court sentenced Petitioner

to a life term of incarceration. Id. Petitioner sought a direct appeal, and on July

20, 2012, the First District Court of Appeal per curiam affirmed Petitioner’s

conviction and sentence without a written opinion. Resp. Ex. 2. Petitioner’s

judgment and sentence became final ninety days later on October 18, 2012. His

one-year statute of limitations began to run the next day – October 19, 2012 –

and ran for 365 days until it expired on October 21, 2013,2 without Petitioner

filing a motion that would toll his limitations period. Petitioner filed the

Petition over seven years later on July 9, 2021. See Doc. 1.

After the expiration of his statute of limitations, Petitioner filed with the

trial court a pro se motion for new trial on May 14, 2014, and a pro se motion

2 Because the 365th day fell on Saturday, October 19, 2013, Petitioner had until

Monday, October 21, 2013, to file his federal habeas petition. See Fed. R. Civ. P.

6(a)(1)(C).

under Florida Rule of Criminal Procedure 3.850 on August 4, 2014. Resp. Exs.

4, 5. Because there was no time left to toll, however, Petitioner’s motions for

postconviction relief did not toll the federal one-year limitations period. See

Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating that where a

state prisoner files postconviction motions in state court after the AEDPA

limitations period has expired, those filings cannot toll the limitations period

because “once a deadline has expired, there is nothing left to toll”); Webster v.

Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“Under § 2244(d)(2), even ‘properly

filed’ state-court petitions must be ‘pending’ in order to toll the limitations

period. A state-court petition like [the petitioner]’s that is filed following the

expiration of the limitations period cannot toll that period because there is no

period remaining to be tolled.”). As such, the Petition, filed on July 9, 2021, is

untimely filed.

In his Response, Petitioner seemingly asks the Court to overlook this

procedural bar because he is entitled to equitable tolling. Doc. 10 at 1-4. “When

a prisoner files for habeas corpus relief outside the one-year limitations period,

a district court may still entertain the petition if the petitioner establishes that

he is entitled to equitable tolling.” Damren v. Florida, 776 F.3d 816, 821 (11th

Cir. 2015). The United States Supreme Court established a two-prong test for

equitable tolling of the one-year limitations period, stating that a petitioner

“must show (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstances stood in his way and prevented timely

filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007); see Cadet v. Fla. Dep’t of

Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (recognizing equitable tolling is an

extraordinary remedy “limited to rare and exceptional circumstances and

typically applied sparingly”); see also Brown v. Barrow, 512 F.3d 1304, 1307

(11th Cir. 2008) (noting the Eleventh Circuit “held that an inmate bears a

strong burden to show specific facts to support his claim of extraordinary

circumstances and due diligence.” (citation omitted)).

Here, Petitioner seems to argue he is entitled to equitable tolling because

the assistant public defender appointed to represent Petitioner during his direct

appeal should have either timely filed his federal habeas petition or promptly

filed with the trial court a motion to toll Petitioner’s one-year limitations period.

See Doc. 10 at 1-4. He appears to contend that when he learned his appellate

attorney did not file a tolling motion in state court, he diligently pursued his

remedies by filing a pro se motion. Id. at 3-4. But according to Petitioner, the

trial court did not issue an order on his pro se postconviction motion until

almost three years later. Id. at 4.

“[A]ttorney negligence, even gross or egregious negligence, does not by

itself qualify as an ‘extraordinary circumstance’ for purposes of equitable

tolling; either abandonment of the attorney-client relationship, such as may

have occurred in Holland [v. Florida, 560 U.S. 631 (2010)], or some other

professional misconduct or some other extraordinary circumstance is required.”

Clemons v. Comm’r, Ala. Dep’t of Corr., 967 F.3d 1231, 1242 (11th Cir. 2020)

(quoting Cadet, 853 F.3d at 1227). For example, in Holland, the Court found

collateral counsel’s conduct “amounted to more” than the “garden variety” of

negligence because not only did counsel fail to inform Holland, a death row

inmate, that the Florida Supreme Court affirmed the denial of his state

postconviction motion “despite Holland’s many pleas for that information,” but

counsel also: (1) ignored Holland’s many letters and requests to file a federal

habeas petition on time; (2) failed to do the research necessary to determine the

proper filing date for his federal habeas petition; (3) failed to communicate with

Holland during the two-and-one-half years that his postconviction motion was

pending “despite various pleas from Holland that [counsel] respond to his

letters”; and (4) Holland had unsuccessfully tried to discharge his attorney due

to “a complete breakdown in communication.” Holland, 560 U.S. at 652; see also

Cadet, 853 F.3d at 1216.

Here, Petitioner makes no allegations showing that his appellate

counsel’s conduct amounted to the type of “abandonment” contemplated by

Holland and Cadet. Petitioner does not argue that his appellate counsel failed

to respond to any inquiry about the status of his direct appeal, the filing of a

federal habeas petition, or the filing of a tolling motion. Rather, Petitioner’s

allegations indicate that he simply assumed that the scope of appellate

counsel’s appointment included filing state postconviction motions and/or a

federal habeas petition. Also, Petitioner neither explains when he learned that

appellate counsel did not file a tolling motion or a federal petition, nor why he

waited six months after the expiration of his one-year period to file his first pro

se postconviction motion in state court. As such, the Court finds neither

extraordinary circumstances nor due diligence to justify the rare remedy of

equitable tolling.

Petitioner also attempts to overcome this procedural bar by alleging a

claim of actual innocence. See Doc. 10 at 5-8. “[A]ctual innocence, if proved,

serves as a gateway through which a petitioner may pass whether the

impediment is a procedural bar . . . or, as in this case, expiration of the statute

of limitations.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). To avoid the

one-year limitations period based on actual innocence, a petitioner must

“present new reliable evidence that was not presented at trial” and “show that

it is more likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt in light of the new evidence.” Rozzelle v. Sec’y,

Fla. Dep’t of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012) (quotations and

citations omitted); see Schlup v. Delo, 513 U.S. 298, 327 (1995) (finding that to

make a showing of actual innocence, a petitioner must show “that it is more

likely than not that no reasonable juror would have found [the p]etitioner guilty

beyond a reasonable doubt”).

Here, Petitioner neither references nor presents any actual “new reliable

evidence” to establish his innocence as a matter of fact. Instead, relying on the

underlying allegations of Ground Two of the Petition, Petitioner asserts that he

is aware of new evidence that would challenge the DNA evidence the state

presented at trial. Doc. 10 at 5-8; see also Doc. 1 at 7. Notably, he seems to allege

that at trial, the state did not present evidence of how or why Petitioner’s DNA

was found on certain items. Doc. 10 at 5-6. According to Petitioner, trial

testimony from a DNA specialist about “touch” or “transfer” DNA is new

evidence that would explain why Petitioner’s DNA was found on those items

and show he is actually innocent. Id. But this testimony would not necessarily

lead to Petitioner’s exoneration as a matter of fact. Instead, it would simply

provide an alternative explanation for why Petitioner’s DNA was present and

at most challenge the credibility of that evidence.

In sum, Petitioner has offered no new reliable evidence that was

unavailable at the time of trial. He has not produced exculpatory evidence,

trustworthy eyewitness accounts, or critical physical evidence that was not

available at the time of his trial. Indeed, he has not pointed to any evidence to

show it is more likely than not that no juror, acting reasonably, would have

found him guilty beyond a reasonable doubt in light of the new evidence.

Accordingly, this is not an “extraordinary” case under the Schlup standard.

Considering the foregoing, the Court finds the Petition is untimely filed,

and Petitioner has not shown an adequate reason why the dictates of the one-

year limitations period should not be imposed upon him.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) and this case are DISMISSED with

prejudice.

2. The Clerk of Court shall enter judgment dismissing the Petition

and this case with prejudice.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.3

3 The Court should issue a certificate of appealability only if Petitioner makes

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

To make this substantial showing, Petitioner “must demonstrate that reasonable

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

or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

DONE AND ORDERED at Jacksonville, Florida, this 8th day of July,

2024.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Sean Davis, #128334

counsel of record

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