CHARLES J. KAHN, Jr., Magistrate Judge.
This habeas case, filed under 28 U.S.C. § 2254, is before the court upon petitioner's petition (doc. 1), respondent's amended answer (doc. 18), relevant portions of the state court record (doc. 14), and petitioner's replies (docs. 16, 26). Respondent seeks dismissal of the petition as time-barred, arguing in the alternative that petitioner is not entitled to habeas relief because Ground One is without merit and Ground Two is procedurally defaulted. The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that the petition is untimely and should be dismissed.
On August 20, 2010, petitioner was found guilty by jury verdict of robbery with a firearm in Escambia County Circuit Court Case No. 09-CF-4665. (Doc. 14, Ex. A, p. 34).
On August 25, 2011, petitioner filed his first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 (Ex. G, pp. 30-35), which he later amended (id., pp. 39-44). The state circuit court denied the amended motion on September 4, 2012, after an evidentiary hearing. (Ex. H, pp. 149-240 (order); Ex. G, pp. 60-129 (transcript of evidentiary hearing)). The First DCA affirmed, per curiam and without a written opinion. Vindel v. State, 115 So.3d 1008 (Fla. 1st DCA 2013) (copy at Ex. K). The mandate issued July 23, 2013. (Id.).
On January 16, 2014, petitioner submitted a "Second or Successive Motion for Post Conviction Relief". (Ex. L, pp. 1-7). The state circuit court dismissed the motion "as successive and untimely." (Id., p. 17). The First DCA affirmed, per curiam and without a written opinion. Vindel v. State, 145 So.3d 837 (Fla. 1st DCA 2014) (copy at Ex. O). The mandate issued July 22, 2014. (Id.). Petitioner filed his federal habeas petition on August 28, 2014. (Doc. 1, p. 1).
Because petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA governs this petition. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L. Ed. 2d 481 (1997). AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of:
§ 2244(d)(1). The limitation period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2).
Petitioner has not asserted that a State-created impediment to his filing a federal habeas petition existed, that he bases his claims on a right newly recognized by the United States Supreme Court, or that the facts supporting his claims could not have been discovered through the exercise of due diligence before his conviction became final. Accordingly, the statute of limitations is measured from the remaining trigger, which is the date on which petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1).
Petitioner's judgment of conviction was affirmed on direct appeal on June 20, 2011. Petitioner did not seek further review. Petitioner's conviction became "final" for purposes of § 2244(d) on September 19, 2011, when the ninety-day period for seeking certiorari from the United States Supreme Court expired.
At the time petitioner's conviction became final, petitioner's first Rule 3.850 motion (filed on August 25, 2011) was pending, which statutorily tolled the limitations period until July 23, 2013, the date the mandate issued in petitioner's appeal from the order denying postconviction relief. See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (recognizing that a "properly filed" postconviction motion is "pending" under Florida procedure, and consequently tolls the limitations period, until the appellate court's issuance of the mandate on appeal).
Petitioner's "Second or Successive Motion for Post Conviction Relief" filed on January 16, 2014, dismissed by the state court as untimely (and successive), did not statutorily toll the limitations period because it was not "properly filed" within the meaning of § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S.Ct. 1807, 161 L. Ed. 2d 669 (2005) (holding that a state postconviction application rejected by the state court as untimely is not "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2): "When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." (internal quotation marks and citation omitted)); Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L. Ed. 2d 329 (2007) (holding that an untimely state postconviction petition was not "properly filed" under § 2244(d)(2), regardless of the state time limit's nonjurisdictional status); see also Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311, 1318 (11th Cir. 2006) (holding that when a state court determines that a postconviction application is untimely, yet also rejects the application on an alternative basis such as lack of merit, "the timeliness decision standing alone compels a federal court to conclude that the state motion was not `properly filed.'" (citations omitted)).
As more than one year passed between issuance of the First DCA's mandate in petitioner's first postconviction appeal on July 23, 2013, and the filing of petitioner's federal habeas petition on August 28, 2014, the petition is untimely. Petitioner seeks to overcome expiration of the statute of limitations by invoking the miscarriage of justice exception. Petitioner asserts:
(Doc. 26, pp. 1-2). Ground Two of petitioner's habeas petition, which claims that trial counsel was ineffective for failing to present "evidence for [petitioner's] benefit" at trial, (doc. 1, Ground Two, p. 5), describes, in detail, the DNA evidence now forming the basis of petitioner's actual innocence claim. Petitioner alleges:
(Doc. 1, pp. 5-6) (emphasis in original).
In McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 185 L. Ed. 2d 1019 (2013), the Supreme Court held that federal courts have equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition. Id. at 1934. "In order to show the type of `miscarriage of justice' that will excuse a procedural bar, a petitioner must make a colorable showing of actual innocence." Crawford v. Head, 311 F.3d 1288, 1327 (11th Cir. 2002) (quoting Isaacs v. Head, 300 F.3d 1232, 1255 (11th Cir. 2002)). Such a showing requires the petitioner to satisfy the Schlup standard, McQuiggin, 133 S. Ct. at 1928 (citing Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L. Ed. 2d 808 (1995)), by demonstrating that constitutional error "probably resulted" in the conviction of one who is actually innocent. Schlup, 513 U.S. at 324, 326-27. "To be credible, such a 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." Id., 513 U.S. at 324. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329; see House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L. Ed. 2d 1 (2006) (emphasizing that the Schlup standard is "demanding" and seldom met). "The gateway should open only when a petition presents `evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" McQuiggin, 133 S. Ct. at 1936 (quoting Schlup, 513 U.S. at 316).
Even assuming the alleged DNA analysis/report exists and is as petitioner describes, petitioner fails to meet the threshold showing required by Schlup. At trial, the State presented an abundance of identification evidence which included, but was not limited to: (1) video footage from the surveillance camera of the store petitioner robbed, which captured images of petitioner (unmasked) robbing the clerk at gunpoint, (2) video footage of petitioner placing the gun he used during the robbery into his right front jeans pocket as he left the store, and a deputy sheriff's testimony that when he removed petitioner from the getaway car (a gold Cadillac with Alabama plates) minutes after the robbery and within 4-6 blocks of the store, the deputy retrieved a gun from petitioner's right front jeans pocket, (3) the store-clerk victim's unequivocal out-of-court and in-court identifications of petitioner as the robber, supported by the victim's testimony that she observed petitioner's face at close range for 3-4 minutes during the robbery and made mental notes of his features so she could identify him later, (4) the store-clerk victim's testimony that when she saw petitioner at the show-up identification conducted within minutes of the robbery, petitioner was wearing the same jeans he wore during the robbery, (5) testimonial and physical evidence that as petitioner was pulled from the passenger side of the getaway vehicle, a plastic bag taken from the store, filled with property stolen from the store, spilled from petitioner's lap onto the ground, and (6) the store-clerk victim's testimony detailing petitioner's physical characteristics which made her certain — in both her show-up identification and her in-court identification of petitioner as the robber — that it was petitioner who robbed her and not petitioner's co-defendant. (Ex. B, pp. 90-154 (trial transcript)).
Viewing the totality of the evidence (both petitioner's proffered new evidence and the evidence presented at trial), the undersigned concludes that the alleged DNA test result revealing a lack of petitioner's DNA on the shirt, hat and rubber gloves worn during the robbery and recovered from petitioner's area of the getaway vehicle is not "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Schlup, 513 U.S. at 316. Petitioner has not met his burden under Schlup, and provides no specific basis to find that amendment of his petition could cure this deficiency.
Petitioner's federal habeas petition was filed outside AEDPA's one-year statute of limitations, and is time-barred. Petitioner has not made the threshold showing required by Schlup to invoke the miscarriage of justice exception. Petitioner's failure to timely file his federal habeas petition requires dismissal of this case.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.
The petitioner in this case fails to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning of this term) (citation omitted). Accordingly, the court should deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. That the petition for writ of habeas corpus (doc. 1), challenging petitioner's judgment of conviction and sentence in State of Florida v. Selvin Emilson Vindel, Escambia County Circuit Court Case No. 09-CF-4665, be DISMISSED WITH PREJUDICE.
2. That the clerk be directed to close the file.
3. That a certificate of appealability be DENIED.
