Johnson v. Florida Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JAN 17, 2008

No. 07-12115 & No. 07-12155 THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 05-23293-CV-FAM

RONNIE JOHNSON,

Petitioner-Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

James McDonough, Secretary,

Respondent-Appellee.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(January 17, 2008)

Before DUBINA, BARKETT and HULL, Circuit Judges.

HULL, Circuit Judge:

Ronnie Johnson, a state prisoner under two death sentences, filed a pair of

28 U.S.C. § 2254 petitions, one attacking his first sentence, the other attacking his

second. In separate orders, the district court dismissed each petition as untimely.

We consolidated Johnson’s appeals. After review and oral argument, we affirm.

I. BACKGROUND

On March 11, 1989, Johnson murdered laundromat owner Tequila Larkins, a

hired killing which he committed in return for “about $300 or $400.” Nine days

later, Johnson murdered grocery store owner and community anti-drug activist Lee

Arthur Lawrence, this time for $1,500.1 After his conviction for the Larkins

murder in Florida state court, he was sentenced to death. After his jury conviction

for the Lawrence murder, he was sentenced to death for that crime. On direct

appeal, the Florida Supreme Court affirmed. See Johnson v. State (Johnson I), 696

So. 2d 317 (Fla. 1997) (Lawrence); Johnson v. State (Johnson II), 696 So. 2d 326

(Fla. 1997) (Larkins). The United States Supreme Court denied certiorari review.

See Johnson v. Florida, 522 U.S. 1095, 118 S. Ct. 892 (1998) (mem.); Johnson v.

Florida, 522 U.S. 1120, 118 S. Ct. 1062 (1998) (mem.).

After his direct appeals terminated in early 1998, Johnson did not

collaterally attack his death sentences until early 2001. On March 1, 2001 he filed

1

We refer to the first murder as the “Larkins murder,” and to the second as the “Lawrence

murder.” Furthermore, we refer to all direct and collateral proceedings relating to the Lawrence

murder, docketed first in this Court, as “Johnson I,” and all direct and collateral proceedings

relating to the Larkins murder as “Johnson II.”

2

a motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.850 in Johnson I,

and on March 20, 2001 he filed a Rule 3.850 motion in Johnson II. The state trial

court denied both Rule 3.850 motions. Johnson appealed and also filed petitions

for writs of habeas corpus directly in the Florida Supreme Court. On March 31,

2005, the Florida Supreme Court affirmed the denials of Johnson’s Rule 3.850

motions and denied Johnson’s habeas petitions. See Johnson v. State, 903 So. 2d

888 (Fla. 2005) (Johnson I); Johnson v. State, 921 So. 2d 490 (Fla. 2005) (Johnson

II). The Florida Supreme Court issued its mandates on June 13, 2005.

On December 22, 2005, Johnson filed his 28 U.S.C. § 2254 petitions in

federal district court. The district court denied each as untimely under 28 U.S.C.

§ 2244(d)(1)’s one-year statute of limitations. The district court granted Johnson’s

motions for certificates of appealability. We consolidated Johnson’s appeals.

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal of a § 2254 petition as

untimely. Wade v. Battle, 379 F.3d 1254, 1259 n.5 (11th Cir. 2004). We review

its factual determinations for clear error. LeCroy v. Fla. Dep’t of Corr., 421 F.3d

1237, 1259 (11th Cir. 2005), cert. denied, 546 U.S. 1219, 126 S. Ct. 1458 (2006).

III. DISCUSSION

Under 28 U.S.C. § 2244(d)(1), Johnson’s § 2254 petitions are subject to a

3

one-year statute of limitations, which begins to run on 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

Under 28 U.S.C. § 2244(d)(2), this limitations period is statutorily tolled during the

pendency of a “properly filed application for State post-conviction or other

collateral review” with respect to the pertinent judgment.

Johnson’s convictions and death sentences became final on January 26, 1998

and February 23, 1998, the dates on which the United States Supreme Court denied

his certiorari petitions. Using the “conclusion of direct review” starting date in §

2244(d)(1)(A), Johnson’s limitations periods began to run on January 26, 1998 and

February 23, 1998, and expired on January 27, 1999 and February 24, 1999.

Johnson did not file his § 2254 petitions until December 22, 2005, and thus, if the

2

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) established the

one-year limitations period, and Johnson filed his § 2254 petitions in 2005 after its effective

date.

4

§ 2244(d)(1)(A) starting date applies, they were untimely filed. Moreover,

Johnson’s state post-conviction filings in March 2001 did not stop his AEDPA

clocks because the one-year time had already expired. See Sibley v. Culliver, 377

F.3d 1196, 1204 (11th Cir. 2004) (concluding “[a] state court filing after the

federal habeas filing deadline does not revive it”).

On appeal Johnson raises several arguments discussed below.

A. State Impediment to Filing

Johnson first argues that state action created impediments that prevented him

from filing his § 2254 petitions, and thus his AEDPA clocks did not begin to run

until the impediments were removed. See 28 U.S.C. § 2244(d)(1)(B); Arthur v.

Allen, 452 F.3d 1234, 1249 (11th Cir. 2006), cert. denied, __ U.S. __, 127 S. Ct.

2033 (2007). Johnson alleges three state-created impediments: (1) the “turmoil”

surrounding Florida’s implementation of its post-conviction representation system,

which delayed the appointment of Johnson’s original state post-conviction counsel

until August 9, 1998; (2) the ineffective assistance of Johnson’s original state post-

conviction counsel in not filing Rule 3.850 motions; and (3) the state’s objection,

on privilege and attorney-work-product grounds, to Johnson’s current counsel’s

request, filed in February 2000, for access to documents needed in preparing

5

Johnson’s state post-conviction filings.3

The problem for Johnson is the United States Supreme Court has held that

prisoners in capital cases have no constitutional right to post-conviction counsel.

See Lawrence v. Florida, __ U.S. __, 127 S. Ct. 1079, 1085 (2007) (“Lawrence

II”), aff’g Lawrence v. Florida, 421 F.3d 1221 (11th Cir. 2005) (“Lawrence I”);

Murray v. Giarratano, 492 U.S. 1, 10, 12, 109 S. Ct. 2765, 2771-72 (1989);

Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S. Ct. 1990, 1993-94 (1987).

Thus, a state’s delay in appointing such counsel is not a “violation of the

Constitution or laws of the United States,” as required by § 2244(d)(1)(B). And

this Court has already held that “incompetent” performance by appointed counsel

“is not the type of State impediment envisioned in § 2244(d)(1)(B).” Lawrence I,

421 F.3d at 1226.4 Later, in Gordon v. Secretary, Department of Corrections, 479

F.3d 1299, 1301 (11th Cir. 2007), this Court reaffirmed that “the failure of . . .

court-appointed counsel to file more promptly [for state post-conviction relief does

not qualify as] an impediment to filing created by State action, within the meaning

3

Johnson’s first post-conviction attorney, Stuart Mishkin, was appointed on August 9,

1998, at which time he had more than five months in Johnson II, and more than six months in

Johnson I, left on AEDPA’s statute of limitations.

His current counsel, Charles G. White, was appointed on February 1, 2000, and filed

Johnson’s state post-conviction motions and petitions, as well as his federal § 2254 petitions.

4

The Supreme Court did not consider the state impediment issue in Lawrence II; it

affirmed on other grounds. See Lawrence II, 127 S. Ct. at 1086.

6

of § 2244(d)(1)(B).”

Likewise, Johnson has not established that the State’s objection to the

production of certain documents constituted an illegal impediment to filing his

§ 2254 petitions. To delay the running of the statute of limitations,

§ 2244(d)(1)(B) requires state action that both “violat[ed] . . . the Constitution or

laws of the United States” and “prevented [the prisoner] from filing” his federal

petition. 28 U.S.C. § 2244(d)(1)(B). Johnson has pointed to no federal statute or

constitutional provision that the State’s objections violated. Johnson also has not

demonstrated how the State’s action actually prevented him from timely filing his

§ 2254 petitions.

In any event, the state trial court conducted an in camera review of the

documents on April 28, 2000, and immediately made available to Johnson the first

three categories of documents he had requested.5 As to the remaining documents,

the state court ordered that the NCIC report be produced unless the state objected

within five days.6 The state court refused disclosure of the grand jury

5

Johnson requested access to seven categories of documents: (1) victim autopsies and

other lab results; (2) Johnson’s own medical records (which were withheld because Johnson had

not signed an authorization form for the state corrections department to release them); (3)

Johnson’s sentencing materials, including the sentencing order and Pre-Sentencing Investigation

Report; (4) a National Crime Information Center (NCIC) report regarding Johnson; (5) police

reports; (6) State’s Attorney notes; and (7) a grand jury memorandum with handwritten notes.

6

The record is silent as to whether the State raised a further objection within the five-day

period, and whether and when the documents were eventually produced. The state trial court did

7

memorandum or the State’s Attorney notes, although the court reviewed the latter

for potential Brady 7 violations. The state court declined to produce the police

reports at that time because the state claimed that a version of them, redacted to

remove victim addresses and phone numbers, had already been produced in

discovery to Johnson’s trial counsel, and Johnson’s current counsel had not yet

obtained and reviewed the file from Johnson’s trial counsel.

In fact, Johnson has never identified to this Court a single document to

which he did not ultimately gain access, much less how its lack prevented him

from filing either of his § 2254 petitions.8 Johnson’s factual allegations fall far

short of the standard required to invoke § 2244(d)(1)(B). Therefore, the state

impediment provision does not apply, and the one-year statute of limitations began

to run on the date Johnson’s convictions became final in 1998.

B. Equitable Tolling

Johnson next argues that the limitations period should be equitably tolled.

Equitable tolling may apply “when a movant untimely files because of

issue an order on February 12, 2001 releasing some documents to Johnson, but it is not clear

from the face of the order which documents they were.

7

See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Nothing in the record

indicates that the court discovered any potential violations.

8

He has also failed to mention precisely which documents he did receive, and the dates

on which he received them.

8

extraordinary circumstances that are both beyond his control and unavoidable even

with diligence.” Arthur, 452 F.3d at 1252 (quotation marks and citation omitted);

Helton v. Sec’y for the Dep’t of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001);

Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001).9

Johnson bears the burden of establishing equitable tolling. Outler v. United

States, 485 F.3d 1273, 1280 (11th Cir. 2007). To discharge his burden, he must

demonstrate: “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing.”

Lawrence II, 127 S. Ct. at 1085 (quotation marks and citation omitted).

As grounds for equitable tolling, Johnson proffers again the incompetence of

his first post-conviction attorney. However, this Court has “stated on numerous

occasions that attorney negligence is not a basis for equitable tolling, especially

when the petitioner cannot establish his own diligence in ascertaining the federal

habeas filing deadline.” Lawrence I, 421 F.3d at 1226 (quotation and citations

omitted); see Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (“Mere attorney

negligence does not justify equitable tolling.”). Here, Johnson has not

9

Although the Supreme Court has not expressly approved the application of equitable

tolling to the AEDPA statute of limitations, it has recently assumed, without deciding, that

equitable tolling is available in this context. See Lawrence II, 127 S. Ct. at 1085. This Court’s

precedent is consistent with the Supreme Court’s Lawrence II formulation of the equitable

tolling standard. See id.; Arthur, 452 F.3d at 1252; Lawrence I, 421 F.3d at 1226.

9

demonstrated his own diligence, as his correspondence with his first attorney

reveals that Johnson knew there was a federal timeliness issue. Further, after his

current counsel was appointed, Johnson waited thirteen months before filing his

Rule 3.850 motions. Consequently, Johnson has not shown the requisite diligence

to establish equitable tolling.

Johnson argues that because the state court equitably extended the state

limitations period for filing his Rule 3.850 motions and the State did not object to

the state court’s extension, the federal limitations period for his § 2254 petitions

must be equitably tolled. However, this Court has already held that a federal

habeas petitioner is not entitled to equitable tolling merely because the state court

granted an extension of time to file his state post-conviction petitions. See Howell

v. Crosby, 415 F.3d 1250, 1251-52 (11th Cir. 2005) (holding that § 2254 petitioner

whose state post-conviction petition was timely filed pursuant to an extension of

time granted by state court but which was filed more than one year after his

conviction became final under § 2244(d)(1)(A) was entitled to neither statutory nor

equitable tolling). Moreover, our precedent provides that federal habeas petitioners

who rely upon the timeliness of state post-conviction proceedings to satisfy the

requirements of AEDPA do so at their peril. See id.; see also Tinker, 255 F.3d at

1334-35 (holding that Florida’s then-applicable two-year limitations period for

10

state habeas petitions did not toll the federal one-year period; rather, a federal

petitioner “must exercise his [state remedy] within one year . . . and do so in a

manner that leaves him sufficient time to timely file his federal petition”).

Based on the record in this particular case and our binding precedent, we

cannot say that the district court erred in concluding that Johnson had not

demonstrated entitlement to equitable tolling of AEDPA’s statute of limitations.

C. Actual Innocence

Lastly, Johnson argues that his § 2254 petition concerning the Larkins

murder, even if untimely, must be permitted because he is actually innocent. He is

essentially arguing that AEDPA’s one-year limitations period violates the

Suspension Clause when an otherwise time-barred petitioner can show he is

actually innocent. See Arthur, 452 F.3d at 1244; Wyzykowski v. Dep’t of Corr.,

226 F.3d 1213, 1218 (11th Cir. 2000). This Court has held that before addressing

this difficult constitutional question, we should first consider whether the petitioner

can show actual innocence. See Arthur, 452 F.3d at 1244; Sibley v. Culliver, 377

F.3d 1196, 1205 (11th Cir. 2004); Wyzykowski, 226 F.3d at 1218. To date, this

Court has avoided this constitutional issue because no time-barred petitioner has

made the requisite actual-innocence showing. Arthur, 452 F.3d at 1244; Sibley,

377 F.3d at 1205; Wyzykowski, 226 F.3d at 1218. Thus, we first examine

11

Johnson’s actual-innocence claim as to the Larkins convictions.

To successfully plead actual innocence, a petitioner must show that his

conviction resulted from “a constitutional violation.” Schlup v. Delo, 513 U.S.

298, 327, 115 S. Ct. 851, 867 (1995). To do so, he must demonstrate “that it is

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

beyond a reasonable doubt.” Id. at 327, 115 S. Ct. at 867; Arthur, 452 F.3d at

1245. The petitioner must raise “sufficient doubt about [his] guilt to undermine

confidence in the result of the trial.” Arthur, 452 F.3d at 1245 (quotations and

citation omitted). “‘[A]ctual innocence’ means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611

(1998).

Johnson’s innocence claim is based on the Florida Supreme Court’s Delgado

decision in 2000, discussed below, that interpreted the state’s burglary statute. At

the time of Johnson’s 1991 trial, Florida defined burglary statutorily as “entering or

remaining in a dwelling, a structure, or a conveyance with the intent to commit an

offense therein, unless the premises are at the time open to the public or the

defendant is licensed or invited to enter or remain.” Fla. Stat. Ann. § 810.02(1)

(1989). Interpreting § 810.02(1), the Third District Florida Court of Appeal had

held that if a defendant enters a structure by consent, he may nevertheless be guilty

12

of burglary under § 810.02(1) if the evidence demonstrates that the consent, either

expressly or implicitly, was withdrawn. Ray v. State, 522 So. 2d 963, 965-67 (Fla.

Dist. Ct. App. 1988). Once consent is withdrawn, the Florida appellate court

reasoned in Ray, the offender’s unlawful “remaining in” the premises sufficed to

establish burglary, even though he did not unlawfully “enter.” Id.

Twelve years later, however, and after direct review ended in Johnson II,

the Florida Supreme Court in 2000 overturned Ray, holding that consent to enter

was a complete defense to a burglary charge unless the “remaining in” the premises

with unlawful intent was done “surreptitiously.” Delgado v. State, 776 So. 2d 233,

237-41 (Fla. 2000). Delgado expressly stated that its holding “will not . . . apply

retroactively to convictions that have become final.” Id. at 241 (citing Witt v.

State, 387 So. 2d 922, 928-31 (Fla. 1980)).

Johnson argues (1) that he is actually innocent of burglary under the

Delgado construction of Florida’s burglary statute; (2) that his first-degree murder

charge rested on two independent theories of premeditated murder and felony

murder based on a felony burglary charge; (3) that because the jury’s verdict did

not distinguish between the premeditation and felony-murder theories, he is

innocent of the murder charge; and (4) that the Florida Supreme Court’s refusal to

apply Delgado retroactively to his case violated his federal due process rights.

13

Johnson’s arguments lack merit.10

First, Johnson cannot demonstrate a due process violation from the failure to

retroactively apply the now-abrogated Delgado interpretation of the Florida

burglary statute.11 In Jimenez v. Florida Department of Corrections, 481 F.3d

1337, 1341-43 (11th Cir.), cert. denied sub nom. Jimenez v. McDonough, __ U.S.

__, 128 S. Ct. 628 (2007), this Court denied a § 2254 petitioner’s application for a

COA with respect to this precise issue. Although in Jimenez the petitioner was

procedurally barred from raising the Delgado retroactivity argument for failure to

exhaust state remedies, we also rejected the argument on the merits. See id. at

1342-43 (“Even if his claim were not procedurally barred, Jimenez did not make a

substantial showing that the Florida Supreme Court’s refusal to apply retroactively

10

We note that Johnson does not offer new evidence, but simply a new interpretation of

the burglary statute. Although Schlup suggests that this is insufficient, see Schlup, 513 U.S. at

324, 115 S. Ct. at 865 (“To be credible, [an actual innocence] claim requires petitioner to 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.”), the Supreme Court’s opinion in Bousley, 523 U.S. at 622-24, 118 S. Ct. at

1611-12, suggests otherwise. See id. (indicating that a federal habeas petitioner should be

permitted the opportunity to raise an actual innocence claim based on a new interpretation of the

statute under which he pled guilty). However, we need not reach this issue because, as discussed

infra, even assuming Johnson has raised a proper actual innocence claim, his claim fails.

11

Shortly after Delgado was decided, the Florida legislature amended § 810.02 to make

clear that an invited person entering a premises need not remain surreptitiously and adopted

§ 810.015, which expressly stated the legislature’s intent that Delgado’s holding be “nullified”

and that the burglary statute, § 810.02, be “construed in conformity with . . . Ray.” Fla. Stat.

Ann. § 810.015 (2001). The legislature’s abrogation of Delgado took effect on May 25, 2001.

See Foster v. State, 861 So. 2d 434, 438-41 (Fla. Dist. Ct. App. 2002).

14

an interpretation of the burglary statute violated his constitutional rights.”).

Johnson has not distinguished our prior holding in Jimenez.12 Thus, he cannot

show a due process violation.

Moreover, Johnson does not come within the Delgado rule in any event.

Delgado held that a defendant who was consensually invited inside a person’s

premises could not be guilty of burglary if he or she later committed a crime there

unless the defendant surreptitiously remained in the premises. Delgado, 776 So.

2d 233, 237-41. However, “Delgado . . . concerns only the situation where the

defendant enters the premises with the occupant’s consent. It does not address a

defendant’s entry onto the premises by fraud or trick.” Schrack v. State, 793 So.

2d 1102, 1104 (Fla. Dist. Ct. App. 2001). Under Florida law, a trick- or fraud-

induced entrance will support a burglary conviction because when such means are

used, “there is actually no consent at all.” Id. Here, Johnson gained entrance by

12

Johnson argues that the Florida Supreme Court’s refusal to apply Delgado retroactively

to his case runs afoul of the United States Supreme Court’s pronouncements in Teague v. Lane,

489 U.S. 288, 109 S. Ct. 1060 (1989) and Fiore v. White, 531 U.S. 225, 121 S. Ct. 712 (2001).

But Teague, which concerned the retroactive effect of “new constitutional rules of criminal

procedure,” see Teague, 489 U.S. at 310, 109 S. Ct. at 1075 (plurality opinion), obviously does

not apply to Delgado, the holding of which was neither constitutional nor procedural. In Fiore,

the Supreme Court held that due process prohibited the incarceration of a defendant convicted of

conduct that the state supreme court later held, in a clarification of the law as it existed at the

time of the defendant’s conduct rather than in a post-conviction change in the law, not to be

criminal. Fiore, 531 U.S. at 228-29, 121 S. Ct. at 714. Fiore does not apply here either, because

Delgado, on its face, clearly announced a change in the burglary law rather than a mere

clarification. See Delgado, 776 So. 2d at 241 (recognizing that, by its holding, the Florida

Supreme Court was “reced[ing] from [its] previous opinions,” and declaring that the new

interpretation would not apply retroactively to convictions that had already become final).

15

fraud or trick.

At Johnson’s trial, the evidence showed that at approximately nine o’clock

p.m., Larkins locked the front door of the laundromat she owned with two

customers inside finishing their laundry. Johnson arrived at the locked front door

and asked for change. Larkins got her keys and unlocked the door. Jerry Briggs, a

customer inside the laundromat, testified that Johnson “barged in the door” and

immediately “started arguing and then started physically fighting” Larkins. Briggs

also testified that Johnson “came into the front door and just started hitting

[Larkins] in the face.” Larkins then fell to the ground. Johnson got on top of her,

pulled out a gun, and shot her. Larkins died. Moreover, the State introduced

Johnson’s sworn statement admitting that he entered the laundromat because he

had been hired to kill Larkins. This evidence provides an ample basis for a

reasonable juror to conclude that Johnson did not enter by consent because he

convinced Larkins to unlock the door under the false pretense that he wanted

change. Hence, Delgado does not apply, and Johnson’s actual-innocence argument

fails on this basis too.13

13

In addition to his Delgado retroactivity argument, Johnson argues that he is actually

innocent under a retroactive application of Miller v. State, 733 So. 2d 955 (Fla. 1998), which

held that if a Florida burglary defendant “can establish that the premises were open to the public,

then this is a complete defense.” Id. at 957 (emphasis omitted). However, contrary to Johnson’s

contention in his brief, Miller did not abrogate Ray; indeed, the two cases are entirely consistent.

Compare Miller, 733 So. 2d at 957 (stating, as above, that the premises being open to the public

“is a complete defense”), with Ray, 522 So. 2d at 967 n.6 (“That the premises are open to the

16

IV. CONCLUSION

For all of these reasons, the district court did not err in dismissing Johnson’s

§ 2254 petitions as untimely.

AFFIRMED.

public is a complete defense to a burglary charge . . . .”). Retroactivity of Miller, therefore, is

irrelevant to the question of Johnson’s innocence. Furthermore, the testimony that Larkins’

laundromat was locked at the time Johnson arrived furnishes a sufficient basis upon which the

jury could conclude that the premises were not open to the public.

17