VIRGINIA M. HERNANDEZ COVINGTON, District Judge.
Petitioner Raleigh Flint, a state of Florida inmate proceeding pro se, initiated this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). He challenges his convictions entered by the Circuit Court for the Tenth Judicial Circuit, Polk County, Florida. Respondent filed a response (Doc. 8), and Flint filed a reply (Doc. 11). Respondent then filed a supplemental response (Doc. 15). Upon review, Flint's petition must be dismissed as time-barred.
Flint was charged with fleeing or attempting to elude (high speed) (count one); fleeing or attempting to elude (count two); driving while license suspended or revoked (count three); possession of cocaine (count four); resisting an officer with violence (count five); battery on a law enforcement officer (count six); and criminal mischief (count seven). (Doc. 17, Ex. 1.) In 2006, a jury convicted Flint as charged on counts one, two, three, four, and six. (Doc. 17, Ex. 2, p. 101.) He was convicted of lesser-included offenses on counts five and seven. (Id.) On count one, Flint was sentenced to fifteen years in prison as a habitual felony offender. (Id., pp. 104, 107.) He received concurrent sentences of five years in prison on counts two, four, and six, and was designated a prison released reoffender ("PRR") with regard to count six. (Id., pp. 105-08.) Flint was sentenced to time served on counts three, five, and seven. (Id., p. 109.)
The state appellate court per curiam affirmed Flint's convictions and sentences. (Doc. 17, Exs. 3, 4.) Flint's motion for rehearing was denied. (Doc. 17, Ex. 4.) Flint filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which the state court denied. (Doc. 17, Exs. 5, 6.) The state appellate court per curiam affirmed the order of denial. (Doc. 17, Ex. 7.) Flint's subsequent state habeas petition was denied by the state appellate court. (Doc. 17, Exs. 10, 11, 12.) His motion for rehearing and rehearing en banc was dismissed as untimely. (Doc. 17, Ex. 13.)
Flint then filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), alleging in relevant part that he did not qualify as a PRR on count six. (Doc. 17, Ex. 15.) The state trial court agreed, determining that the PRR designation on count six was erroneous. (Doc. 17, Ex. 18.)
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year period of limitation for filing a § 2254 federal habeas petition. This one-year period begins running on the later of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The limitation period is tolled for "[t]he 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. . . ." 28 U.S.C. § 2244(d)(2).
"AEDPA's statute of limitations runs from the date the judgment pursuant to which the petitioner is in custody becomes final, which is the date both the conviction and sentence the petitioner is serving become final." Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286, 1288 (11th Cir. 2007). In its supplemental response, Respondent asserts that Petitioner is not in custody on count six, for which he was resentenced in 2011, because the sentence on that count expired by the time Flint filed his federal habeas petition on December 4, 2013. Respondent contends that Flint is in custody on the conviction and fifteen-year sentence on count one imposed in 2006. Therefore, Respondent contends that the date Flint's judgment became final was December 11, 2007, when the time to file a petition for a writ of certiorari in the United States Supreme Court expired following the state appellate court's September 12, 2007 affirmance of Flint's 2006 conviction and sentence.
Even assuming, however, that Flint's April 4, 2011 resentencing on count six is the date from which the one-year limitations period is calculated, Flint's petition is untimely under § 2244(d)(1)(A). Because Flint did not appeal his April 4, 2011 sentence, his judgment became final thirty days later, on May 4, 2011. See Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) (where petitioner did not seek direct review of his conviction, judgment became "final" for purposes of § 2244 on the date his right to appeal expired); Booth v. State, 14 So.3d 291, 292 (Fla. 1st DCA 2009) ("Appellant did not appeal his judgment and sentence. Thus, his judgment and sentence became final 30 days later when the time for filing an appeal passed.").
After Flint's judgment became final, 19 days of un-tolled time passed before he filed his state habeas petition on May 23, 2011. (Ex. 21.) The petition was denied on June 14, 2011, and Flint's motion for rehearing was denied on August 1, 2011. (Doc. 17, Exs. 22, 23.)
In his reply, Flint states that his petition is timely pursuant to 28 U.S.C. § 2244(d)(1)(B), under which the limitations period runs from "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." In other words, "in the event of illegal state action preventing the petitioner from filing, the limitation period does not begin until after the state impediment is removed." Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1216 (11th Cir. 2000). Flint claims that he "has been delayed from filing his petition by the actions of the State of Florida, Department of Corrections staff impeding the Petitioner from filing." (Doc. 11, p. 1.)
Preliminarily, Flint does not identify with specificity the precise actions attributable to the State, when these actions occurred, or how they impeded his ability to timely file his federal habeas petition. Additionally, he provides no precise date upon which he believes the one-year period began running under § 2244(d)(1)(B). Flint's generalized assertion is insufficient to establish that § 2244(d)(1)(B) applies to determine the start of his one-year limitation period.
It appears that Flint intends to refer to an alleged confiscation of his legal papers by Department of Corrections personnel. He claims that while the papers were in the possession of a prison law clerk, they were confiscated during a "random shakedown" on August 31, 2012, and not returned until December 2012.
Furthermore, Flint does not show that he was prevented from timely filing his habeas petition by this alleged impediment. By the time his papers were allegedly taken on August 31, 2012, his federal limitations period had expired, even assuming that he had from the date his judgment became final upon resentencing in 2011 to timely file his petition. Flint's judgment upon resentencing became final on May 4, 2011. Nineteen days of un-tolled time passed until May 23, 2011, when he filed his state habeas petition. This proceeding concluded when the state appellate court denied Flint's motion for rehearing on August 1, 2011. At that time, 346 days of Flint's one-year limitation period remained. The deadline for filing a federal habeas petition was July 12, 2012.
Thus, Flint cannot show that this alleged confiscation of his legal materials by Department of Corrections personnel from August 31, 2012 to December 2012 prevented him from completing and filing a timely federal habeas petition. Flint had ample time to file his federal habeas petition when the alleged impediment did not exist. Accordingly, because Flint fails to show that any State-created impediment prevented him from timely filing his federal habeas petition, he does not demonstrate that § 2244(d)(1)(B) applies to determine the date upon which his limitations period began.
Flint argues that the Court should consider his petition timely through equitable tolling. The one-year limitation period set forth in § 2244(d) "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is appropriate when a petitioner demonstrates "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Equitable tolling "is an extraordinary remedy `limited to rare and exceptional circumstances and typically applied sparingly.'" Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 477 (11th Cir. 2014) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)). The petitioner bears the burden of establishing the applicability of equitable tolling by making specific allegations. Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1158 (11th Cir. 2014).
"The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653 (internal citation and quotation marks omitted). Determining whether a circumstance is extraordinary "depends not on `how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period.'" Cole, 768 F.3d at 1158 (quoting Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)). A petitioner must "show a causal connection between the alleged extraordinary circumstances and the late filing of the petition." San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).
Flint asserts that he was prevented from timely filing his federal habeas petition due to several concerns stemming from his representation by counsel. Counsel was appointed to represent Flint at his 2011 resentencing hearing. (Doc. 17, Ex. 18.) It appears that Flint's family then retained this attorney to represent Flint from approximately May 2011, until April 2, 2012. (Doc. 1-1, pp. 2-3, 11.) Flint now claims that because of his attorney's "lack of due diligence and competence" during the time "from May 13, 2011 until April 2, 2012, it is evident that when he was hired as [Flint's] representative and did not file anything to toll the time, or obtain relief." (Doc. 1, p. 27.) Additionally, Flint claims that he mailed counsel the only copy of his "legal documents," and that he was "left with nothing to pursue or research until August 12, 2012," when, he appears to allege, counsel returned his documents to him. (Id.) Therefore, Flint argues, he is entitled to equitable tolling due to counsel's alleged deficiencies and delays and counsel's possession of his legal papers during the representation.
To the extent Flint's argument concerning counsel's alleged delays and failure to file tolling motions amounts to a claim of attorney negligence, Flint does not establish the existence of extraordinary circumstances.
Nor does Flint demonstrate that he was diligently pursuing his rights but that his attorney's actions or possession of his legal papers prevented him from timely filing his federal habeas petition. Although Flint blames his attorney's alleged delays, the retainer agreement reflects that counsel was only to work on a postconviction motion. (Doc. 1-1, p. 3.) Counsel's subsequent letter to Flint further provides that counsel was never retained to work on any federal pleadings, and that counsel never asked Flint to delay any filings in federal court. (Doc. 1-1, p. 11.)
Additionally, Flint's supporting documentation reflects that he was aware that he faced a deadline for filing his federal habeas petition. (Doc. 1-1, pp. 7, 8, 15.) Despite this, Flint allowed the limitation period to expire. He does not demonstrate that he diligently attempted to timely file his federal habeas petition but that extraordinary circumstances in the form of counsel's alleged delays or possession of Flint's legal documentation prevented him from doing so.
Flint further claims that equitable tolling is warranted because, as addressed in his argument in support of applying § 2244(d)(1)(B), his legal materials were allegedly confiscated by Department of Corrections personnel from August 31, 2012, until December 2012. But Flint cannot establish a causal link between the alleged confiscation of his legal papers on this date and his untimely filing. As addressed, even assuming the limitations period is calculated by the date his judgment upon resentencing in 2011 became final, the one-year limitation period expired prior to August 31, 2012.
Similarly, Flint asserts that he lost "all prior research" when he was transferred between prisons on April 23, requiring him "to start all over." (Doc. 1, p. 27.) Flint does not state which year he was transferred. Assuming his transfer was in 2013, again, Flint can show no connection between this occurrence and the untimely filing of his federal habeas petition because his one-year limitation period had already expired. Assuming Flint's transfer was prior to 2013, his vague assertion is insufficient to establish that equitable tolling is justified. A lack of access to a petitioner's legal materials generally does not constitute an extraordinary circumstance. See Dodd, 365 F.3d at 1283. And Flint makes no showing that he diligently pursued the timely filing of his habeas petition but that a loss of his research due to his transfer between prisons resulted in his inability to do so.
Accordingly, as Flint does not establish that equitable tolling is applicable, his petition must be dismissed as time-barred.
The Court declines to issue a certificate of appealability pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts because Flint has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). Furthermore, because Flint is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
It is therefore
