Burns v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

PHILLIP BURNS,

Petitioner,

v. Case No. 3:22-cv-526-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER OF DISMISSAL WITH PREJUDICE

I. Status

Petitioner, an inmate of the Florida penal system, initiated this action on

May 9, 2022 (mailbox rule), 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) and a Petition

for Equitable Tolling (Doc. 2).1 He challenges a 2015 state court (Duval County,

Florida) judgment of conviction for attempted second degree murder and

possession of a firearm by a convicted felon. Petitioner is serving a thirty-year

term of imprisonment. Respondents filed a Motion to Dismiss Untimely Petition

1 The Court denied without prejudice the Petition for Equitable Tolling (Doc. 2), noting

that it would render a decision on the timeliness of the Petition, if appropriate, after

reviewing the Respondents’ response and Petitioner’s reply. See Order (Doc. 4).

for Writ of Habeas Corpus (Doc. 7), with exhibits (Docs. 7-1 to 7-222). Petitioner

filed a Reply (Doc. 12) and a Supplemental Reply (Doc. 15).3 This case is ripe

for review.4

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;

2 For all documents filed in this case, the Court cites to the document and page

numbers as assigned by the Court’s electronic case filing system.

3 In the Supplemental Reply, Petitioner requests the Court direct Respondents to

address his claims on the merits and/or schedule an evidentiary hearing and appoint

the Federal Public Defender to represent him. See Doc. 15. Given the findings herein,

the Court denies Petitioner’s requests.

4 “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.

(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. Procedural History

On October 14, 2015, following a jury trial, Petitioner was adjudicated

guilty of attempted second degree murder (a lesser-included offense) (count one)

and possession of a firearm by a convicted felon (count two). See Doc. 7-1 at 118-

26. The trial court sentenced him to a forty-year term of imprisonment on count

one and a concurrent fifteen-year term of imprisonment on count two, with a

three-year minimum mandatory on count two. See id.; see also id. at 185. The

trial court ordered that count two’s three-year minimum mandatory term run

consecutively to the sentence on count one. See Doc. 7-1 at 185.

Petitioner, through counsel, filed a direct appeal. See Doc. 7-5. The state

filed an answer brief, see Doc. 7-6, and Petitioner filed a counseled reply, see

Doc. 7-7. While the appeal was pending, Petitioner, through counsel, filed a

motion in the trial court pursuant to Florida Rule of Criminal Procedure

3.800(b)(2) alleging a sentencing error. Doc. 7-4 at 5-13. The trial court did not

rule on the motion; thus, after 60 days, the motion was deemed denied. See Fla.

R. Crim. P. 3.800(b)(2)(B). With respect to the pending appeal, the First District

Court of Appeal issued a written opinion on March 23, 2017, “affirm[ing] the

convictions without comment, but vacat[ing] [Petitioner’s] sentences because

the trial court believed . . . that the sentences imposed . . . had to be consecutive

sentences.” Doc. 7-8 at 4-5. Thus, the First DCA remanded the case for

resentencing. Id. at 5.

On June 23, 2017, the trial court conducted a de novo resentencing

hearing on both counts. See Doc. 7-9. The court imposed a thirty-year term of

imprisonment, with a thirty-year minimum mandatory, on count one and a

concurrent fifteen-year term of imprisonment, with a three-year minimum

mandatory, on count two. See id. at 67-69. That same day, the trial court

entered a “NEW” judgment memorializing the new sentences and signed it nunc

pro tunc to October 14, 2015, the date of the original judgment. See Doc. 7-10

at 10-18.

Petitioner, through counsel, filed a direct appeal, and his counsel

submitted an initial brief pursuant to Anders v. California, 386 U.S. 738 (1967),

representing that the “appeal is without merit.” Doc. 7-12 at 9. On July 19, 2018,

the First DCA per curiam affirmed Petitioner’s sentences without issuing a

written opinion. See Doc. 7-14 at 3-4. The First DCA issued its mandate on

August 16, 2018. Id. at 2.

On September 11, 2018, Petitioner filed a pro se “amended” motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See

Doc. 7-17. The trial court summarily denied the Rule 3.850 motion on June 12,

2019. See Doc. 7-18.5 Petitioner, through counsel, appealed the denial of his

Rule 3.850 motion. See Doc. 7-19. On April 28, 2020, the First DCA per curiam

affirmed the decision without issuing a written opinion and issued its mandate

on May 26, 2020. See Doc. 7-21.

In the meantime, on January 21, 2020 (mailbox rule), Petitioner filed with

the First DCA a pro se petition for writ of habeas corpus, arguing that his

5 The judge signed the order on June 10, 2019, but it was not filed with the Clerk until

June 12, 2019. See Doc. 7-18 at 2, 18. Under Florida law, “[a]n order is rendered when

a signed, written order is filed with the clerk of the lower tribunal.” Fla. R. App. P.

9.020(h).

appellate counsel was ineffective. See Doc. 7-15. On May 14, 2020, the First

DCA denied the petition “on the merits.” Doc. 7-16 at 2.

Petitioner filed the instant case on May 9, 2022.

IV. Analysis

Petitioner’s judgment and sentence became final on October 17, 2018,

which is 90 days after the First DCA’s per curiam decision affirming Petitioner’s

second direct appeal.6 See Clay v. United States, 537 U.S. 522 (2003); Close v.

United States, 336 F.3d 1283, 1285 (11th Cir. 2003) (“According to rules of the

Supreme Court, a petition for certiorari must be filed within 90 days of the

appellate court’s entry of judgment on the appeal or, if a motion for rehearing

is timely filed, within 90 days of the appellate court’s denial of that motion.”

(citing Supreme Court Rule 13.37)). Before the judgment became final, however,

Petitioner filed his Rule 3.850 motion; thus, the one-year limitations period

remained tolled through May 26, 2020, when the First DCA issued its mandate

6 Respondents contend that the June 23, 2017 judgment is a “new judgment and

sentence for purposes of § 2254 habeas corpus starting AEDPA’s 365 day deadline.”

Doc. 7 at 7. The judgment itself is labeled “NEW JUDGMENT” and the trial judge

signed it on June 23, 2017, nunc pro tunc to October 14, 2015. Doc. 7-10 at 10-18.

Because neither party addresses the implication of the “nunc pro tunc” designation,

and because the Petition is untimely under any calculation, the Court assumes for

purposes of this Order only that Petitioner’s judgment and sentence became final after

his second direct appeal. But see Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261

(11th Cir. 2020).

7 See Sup. Ct. R. 13.3 (“The time to file a petition for a writ of certiorari runs from the

date of entry of the judgment or order sought to be reviewed, and not from the issuance

date of the mandate.”).

in the appeal from the summary denial of the Rule 3.850 motion. The one-year

limitations period began the next day (May 27, 2020) and expired one year later

without the filing of a tolling motion.8 As such, the Petition, filed on May 9,

2022, is untimely.

Petitioner acknowledges that his Petition is untimely filed, but he argues

that he is entitled to equitable tolling based on his attorney’s “grossly negligent”

and “dishonest” conduct which effectively resulted in “attorney abandonment.”

Doc. 12 at 2; see also Doc. 2. He claims that the actions of his attorney who

represented him on the appeal of the denial of his Rule 3.850 motion and the

COVID-19 pandemic9 prevented him from filing this case between May 27, 2020

and May 27, 2021. Doc. 12 at 8-9.

“The United States Supreme Court has held that AEDPA’s statutory

limitations period may be tolled for equitable reasons.” Thomas v. Att’y Gen.,

992 F.3d 1162, 1179 (11th Cir. 2021). However, “equitable tolling is an

extraordinary remedy ‘limited to rare and exceptional circumstances and

typically applied sparingly.’” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221

8 Petitioner’s pro se state court petition for writ of habeas corpus had no effect on the

one-year limitations period, because it was filed and disposed of during the pendency

of Petitioner’s appeal from the denial of his Rule 3.850 motion.

9 Petitioner contends that he was under “the ‘blanket restriction’ of COVID-19 in all

litigation matters” from September 18, 2019, to November 8, 2019. Doc. 12 at 4. But

COVID-19 was not identified in China until December 2019, and it did not affect the

United States until early 2020. See CDC Museum COVID-19 Timeline, available at

https://www.cdc.gov/museum/timeline/covid19.html (last visited May 28, 2025).

(11th Cir. 2017) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.

2009)). To warrant the application of this extreme remedy, a 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.”

Holland v. Fla., 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005)). “The petitioner has the burden of establishing his entitlement

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

conclusory.” Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir.

2014) (citation omitted); see Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir.

2008) (“[A]n inmate bears a strong burden to show specific facts to support his

claim of extraordinary circumstances and due diligence.” (citation omitted)).

Petitioner contends that the attorney his family hired to pursue the

appeal of his Rule 3.850 proceeding effectively abandoned him. He complains

that his attorney did not communicate with him during his appeal. Doc. 12 at

3-4. But he acknowledges that his attorney sent him a copy of the initial brief

the attorney filed on Petitioner’s behalf10 and a copy of the First DCA’s decision,

10 Petitioner asserts that his attorney “amended the already filed Brief appealing the

denial of [his] 3.850 Motion, and filed his version without any input from [Petitioner].”

Doc. 2 at 4. A review of the First DCA’s docket reflects that the notice of appeal was

filed on August 20, 2019, counsel filed a notice of appearance on September 18, 2019,

and counsel filed the initial brief on November 8, 2019. See Doc. 7-20; Burns v. State,

No. 1D2019-3021 (Fla. 1st DCA). There is no indication on the state court’s docket that

a pro se initial brief was filed.

along with a letter. Id. at 4-5. In the letter, counsel explained that the First

DCA issued a per curiam affirmance without a written opinion, that there were

“no further steps to take with [the] appeal,” and there was nothing further

counsel could do with Petitioner’s case. Doc. 2-3 at 2-3; see also Doc. 2 at 4 (“Mr.

Molansky sent the denial from the Initial Brief and a letter saying he was

finished representing the Petitioner in April 2020.”).11 Petitioner summarizes

the contact his mother had with the attorney and contends that they were led

to believe the attorney was still representing him after his Rule 3.850 appeal

concluded. See Doc. 12 at 6-8. He argues that given his attorney’s conduct, his

one-year limitations period was tolled through July or August 2021, thus

making his Petition timely filed.

The Court has thoroughly reviewed Petitioner’s filings but finds that he

fails to show he is entitled to equitable tolling. He acknowledges that he

received the attorney’s April 29, 2020 letter with a copy of the First DCA’s

decision. See Doc. 12 at 5. He further acknowledges that when he received that

letter, “he tried to contact [the attorney] to ask questions about the Federal time

limitations,” but the attorney “would not respond.” Doc. 2 at 5. Thus, Petitioner

11 Petitioner filed a copy of the “Legal Representation Agreement” between him and

his postconviction appellate attorney. Doc. 2-1 at 2-5. The “Scope of Engagement” was

defined as “[r]epresentation in appeal to the district court of appeal,” and the “Matter

Involved” was “[r]epresentation in appeal of post conviction motion.” Id. at 2 (some

capitalization omitted). The agreement is signed by Petitioner’s father and dated

September 18, 2019. Id. at 5; Doc. 2 at 2.

was aware of the time limitations and that his attorney was no longer

representing him. Even more, the attorney’s failure to respond should have

placed Petitioner on further notice that his attorney was no longer representing

him. Yet, Petitioner still failed to diligently pursue his rights and never timely

filed anything with this Court.

But even giving Petitioner the benefit of the doubt that he believed

counsel was still representing him in some capacity and thus he was precluded

from filing any pro se motions or petitions, Petitioner concedes that on or about

February 10, 2021, he was informed that the attorney “had no intentions of

continuing with the case. [The attorney] withdrew his expressed intentions and

officially abandoned the case.” Doc. 12 at 7 (emphasis omitted). At that time,

Petitioner still had a little more than three months left on his one-year

limitations period. The circumstances Petitioner describes simply do not

amount to the extraordinary circumstances necessary to invoke equitable

tolling. See Dodd v. United States, 365 F.3d 1273, 1283 (11th Cir. 2004)

(“[L]ockdowns and periods in which a prisoner is separated from his legal

papers are not ‘extraordinary circumstances’ in which equitable tolling is

appropriate.”); Moore v. Frazier, 605 F. App’x 863, 868 (11th Cir. 2015)

(recognizing that pro se litigants “are deemed to know of the one-year statute

of limitations,” and “a lack of a legal education” has never been sufficient to

excuse untimely filing (internal quotations and citations omitted)); Perez v.

Florida, 519 F. App’x 995, 997 (11th Cir. 2013) (“[W]e 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.”); Mendoza v. Fla. Dep't of Corr., No.

3:13-cv-1247-J-34PDB, 2016 WL 6727749, at *4 (M.D. Fla. Nov. 15, 2016)

(“Inmate law clerks are not lawyers, and therefore any negligence on their part

will not justify equitable tolling.”); Wallace v. United States, 981 F. Supp. 2d

1160, 1165 (N.D. Ala. 2013) (recognizing that “institutional transfers, periods

of confinement under more restrictive conditions than general population, and

lack of ready access to legal paperwork and law libraries are not extraordinary

circumstances; they are usual incidents of prison life” (internal quotations and

citations omitted)).12

Petitioner has failed to present circumstances that would justify the

extraordinary remedy of equitable tolling, and he also does not make any

showing of actual innocence. See Rozzelle v. Sec’y Fla. Dep’t of Corr., 672 F.3d

1000, 1011 (11th Cir. 2012). Therefore, this case is due to be dismissed with

prejudice as untimely. Accordingly, it is

12 The Court does not rely on unpublished Eleventh Circuit or district court opinions

as binding precedent; however, they may be cited in this Order when the Court finds

them persuasive on a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-

61 (11th Cir. 2022); Stone v. First Union Corp., 371 F.3d 1305, 1310 (11th Cir. 2004)

(noting that “[a]lthough a district court would not be bound to follow any other district

court’s determination, the decision would have significant persuasive effects”); see also

Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not considered

binding precedent, but they may be cited as persuasive authority.”).

ORDERED:

1. The requests made in Petitioner’s Supplemental Reply (Doc. 15) are

DENIED.

2. This case is DISMISSED with prejudice as untimely.

3. If Petitioner appeals, 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.

A, The Clerk shall enter judgment dismissing this case with prejudice

as untimely, terminate any pending motions, and close this case.

DONE AND ORDERED at Jacksonville, Florida, this 17th day of June,

2025.

& Cimotbeg g. Corrig on

Wy. TIMOTHY J. CORRIGAN

Senior United States District Judge

13 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.

12

JAX-3 6/12

c:

Phillip Burns, #113702

Counsel of Record