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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JEFFREY L. HAWKINS,

Petitioner,

v. Case No. 3:21-cv-1116-TJC-MCR

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

ORDER

I. Status

Petitioner, 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) on November 1, 2021.1 He challenges a 2010

state court (Duval County, Florida) judgment of conviction for two counts of

lewd and lascivious molestation of a child and two counts of lewd and lascivious

exhibition involving a child, “all counts . . . on a single person less than 12 years

of age.” See Doc. 1 at 4. Petitioner is serving a fifty-year term of incarceration.

1 The Petition is dated November 2, 2021, see Doc. 1 at 18, but the prison stamp on

the appendix (Doc. 1-1) reflects that Petitioner submitted his filing for mailing on

November 1, 2021, and the mailing envelope (Doc. 1-2) is postmarked November 1,

2021. “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.” Jeffries v. United States,

748 F.3d 1310, 1314 (11th Cir. 2014).

See Florida Department of Corrections, Offender Information Search, available

at https://fdc.myflorida.com/OffenderSearch/Search.aspx (last visited Jan. 7,

2025).

Respondents filed a Response (Doc. 7), with exhibits (Docs. 7-1 to 7-15),

arguing that this case is untimely filed and should be dismissed with prejudice.2

Alternatively, they argue the Petition is facially deficient because Petitioner did

not use the Court-approved form or provide all the information required by the

form. See Doc. 7 at 11–13. Petitioner opted not to file a reply, advising that he

will rely on the allegations in his Petition instead (Doc. 8). He does not address

the issue of timeliness in his Petition. See generally Doc. 1. This case is ripe for

review.3

2 Response exhibits will be cited as “Ex.” followed by the corresponding letter

designation (“A,” “B,” etc.) as assigned by Respondents and page number as assigned

by the Court’s electronic case management system.

3 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need

for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318

(11th Cir. 2016) (citing 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.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

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)(1), (2).

III. Analysis

On May 4, 2010, a jury found Petitioner guilty of the following crimes as

charged in a second amended information: lewd or lascivious molestation

(Petitioner touching the minor victim) (Count I); lewd or lascivious molestation

(Petitioner forcing or enticing the minor victim to touch him) (Count II); lewd

or lascivious exhibition (between August 13, 2008 and September 30, 2008)

(Count III); and lewd or lascivious exhibition (between October 1, 2008 and

August 13, 2009) (Count IV). Ex. A at 2; Ex. B at 2–5. On June 11, 2010, the

trial court sentenced Petitioner to terms of fifty years on Counts I and II, five

years on Count III, and fifteen years on Count IV, all to run concurrently, with

a twenty-five-year minimum mandatory sentence. Ex. C at 5–10. Through

appointed counsel, Petitioner sought a belated direct appeal. Ex. J at 18–19.4

On January 23, 2012, the First District Court of Appeal per curiam affirmed

Petitioner’s convictions and sentences without a written opinion. Ex. F at 3–4;

Ex. J at 20–21. His judgment and sentence became final ninety days later, on

4 The First DCA granted Petitioner leave to file a belated appeal. Ex. J at 19.

Monday, April 23, 2012.5

Petitioner’s one-year statute of limitations under AEDPA would have

started on April 24, 2012, but Petitioner filed a motion to correct illegal sentence

under Florida Rule of Criminal Procedure 3.800(a) before then, on March 12,

2012 (mailbox rule), tolling the commencement of his limitations period. See

Ex. H at 2. Shortly thereafter, while his Rule 3.800(a) motion was still pending,

on April 27, 2012 (mailbox rule), Petitioner filed a motion for postconviction

relief under Florida Rule of Criminal Procedure 3.850. Ex. I at 2. The state court

denied Petitioner’s Rule 3.800(a) and Rule 3.850 motions in a single order on

April 26, 2013. Ex. J at 2–8. On October 17, 2013, the First DCA per curiam

affirmed the state court’s order without a written opinion. Ex. L at 4. The

mandate issued on November 13, 2013. Id. at 3.

Before the conclusion of his initial postconviction appeal, Petitioner filed

with the trial court the following three motions, all pro se: a Rule 3.850 motion

for postconviction relief on July 11, 2013 (mailbox rule); an amended Rule 3.850

motion on July 19, 2013 (mailbox rule), in which he vaguely sought discovery,

including DNA testing; and a “final amend[ed]” Rule 3.850 motion on August

12, 2013 (mailbox rule). Ex. M at 4, 19, 34. The trial court dismissed with

prejudice Petitioner’s three successive Rule 3.850 motions as procedurally

5 The 90th day fell on a Sunday, April 22, 2012, so Petitioner had until Monday, April

23, 2012, to file a petition for writ of certiorari with the United States Supreme Court.

barred, noting “all three Motions, which purport[ed] to be amendments to

[Petitioner’s] Motion for Postconviction Relief, were filed without leave of Court

after entry of [the] Court’s final Order of April 26, 2013, denying that Motion

on the merits.” Id. at 59. The trial court further found the claim raised in the

July 11, 2013 motion “to be without merit.” Id. at 53. As to all three motions,

the trial court found that because Petitioner failed to show good cause why the

new grounds raised were not asserted in his original Rule 3.850 motion, the

successive motions constituted an abuse of process and were frivolous. Id. at 59,

61.

On June 10, 2014, the First DCA per curiam affirmed the trial court’s

order without a written opinion, Ex. O at 4, and issued its mandate on July 8,

2014, id. at 3. Petitioner’s AEDPA limitations period began the following day

and expired one year later, on July 9, 2015, without Petitioner filing any proper

tolling motions during that time.6 As such, his November 1, 2021 Petition is

6 According to Petitioner’s state court docket, Petitioner also filed numerous pro se

motions for DNA testing under Florida Rule of Criminal Procedure 3.853 as well as

appeals and petitions for writs of mandamus related to those motions. See Ex. G at

18–25. Those motions did not toll the AEDPA limitations period. See Brown v. Sec’y

for Dep’t of Corr., 530 F.3d 1335, 1337 (11th Cir. 2008) (holding a Rule 3.853 motion

does not toll the AEDPA limitations period because the motion is one for discovery

only and is not itself a collateral attack on a judgment of conviction). Petitioner filed a

second motion for reduction of sentence under Rule 3.800(a) on about May 22, 2017

(docketed date), which the trial court summarily dismissed. See Ex. G at 24. However,

by that time, Petitioner’s AEDPA limitations period had already expired, meaning

“there [was] no period remaining to be tolled.” See Webster v. Moore, 199 F.3d 1256,

1259 (11th Cir. 2000); see also Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004)

(“A state court filing after the federal habeas filing deadline does not revive it.”).

untimely filed. Petitioner fails to allege any facts supporting due diligence or

extraordinary circumstances that would entitle him to equitable tolling. See

Lawrence v. Florida, 549 U.S. 327, 336 (2007); Cadet v. Fla. Dep’t of Corr., 853

F.3d 1216, 1221 (11th Cir. 2017). And he does not invoke the actual innocence

exception as a gateway to avoid enforcement of the one-year limitations period.

For the foregoing reasons, the Petition is untimely, 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) is DISMISSED with prejudice as untimely.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

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.7

7 The Court should issue a certificate of appealability only if the 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)

DONE AND ORDERED at Jacksonville, Florida, this 21st day of

January, 2025.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

Jax-6

C:

Jeffrey L. Hawkins, #J37046

Counsel of Record

(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.