WILLIAM F. JUNG, District Judge.
Petitioner, a Florida prisoner, instituted this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. Dkt. 1. At the Court's direction, he filed an amended petition (Dkt. 8), which he later supplemented (Dkts. 13, 15). Respondents responded to Petitioner's petition and filed relevant portions of the state court record. Dkt. 23. Petitioner filed a reply in support of his petition. Dkt. 25. The Court has reviewed the entire record. Because the Court may resolve the petition on the basis of the record, an evidentiary hearing is not warranted. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 8(a). Upon consideration, the Court concludes that the petition is due to be dismissed as untimely.
In 2011, Petitioner entered a no contest plea to four counts of attempted sexual battery upon a person under 12 years old (Counts I through IV) and one count of lewd or lascivious molestation of a victim less than 12 years of age (Count V). Dkt. 23-1 at 4-6, 8-11.
On March 14, 2012,
On May 22, 2012, Petitioner filed a pro se notice of appeal challenging his conviction and sentence. Id. at 41. On July 18, 2012, the Fifth DCA dismissed the appeal for lack of jurisdiction because it was untimely. Id. at 43-44.
In May 2014, Petitioner filed a pro se motion for postconviction relief in the trial court. Id. at 46-57. On May 20, 2014, the trial court dismissed the motion as untimely but gave Petitioner 30 days to file an amended motion. Id. at 60-61.
In late June 2014, Petitioner wrote a letter to the trial judge to "plead [mercy] on 1 out of 5 of [his] charges." Id. at 63. In that letter, Petitioner stated that he "admitted to doing 4 out of 5" but that he signed the plea thinking that "the molestation charge was taken off [his] [record]." Id. The trial court interpreted the letter as a motion to withdraw the plea as to Count V and dismissed the motion with prejudice on July 10, 2014 because it was untimely. Id. at 68-69.
On September 3, 2015, Petitioner filed a pro se motion for postconviction DNA testing in the trial court. Id. at 71-77. The trial court denied the motion on September 10, 2015. Id. at 79-85.
On November 17, 2015, Petitioner filed an amended pro se motion for postconviction DNA testing. Id. at 87-95. The trial court construed the motion as a motion for rehearing of its denial of the first motion for DNA testing and a motion for postconviction relief based on the ineffective assistance of counsel. Id. at 97-98. On December 2, 2015, the court dismissed the motion, finding it untimely. Id.
On November 28, 2016, Petitioner sent another letter (id. at 100-03), which the trial court treated as a motion to withdraw plea (id. at 107-08). On December 12, 2016, the trial court dismissed the motion as untimely. Id. at 107-08.
In early March 2017 (around the same time he filed his federal habeas petition, discussed below), Petitioner filed a petition for writ of habeas corpus with the Florida Supreme Court.
On March 27, 2017, Petitioner filed a pro se document titled "Motion for Post-Conviction Case [Review] And Case Complaint on Law Enforcement Departments" in the state trial court. Dkt. 23-1 at 110-20. On April 5, 2017, the trial court dismissed the motion because it was untimely and did not allege any grounds that would qualify as an exception to the time limit. Id. at 122-23.
On September 5, 2017, Petitioner sent another letter to the state trial court judge. Id. at 125-28. The trial court interpreted the letter as a third motion to withdraw plea and dismissed it as untimely on October 2, 2017. Id. at 130-31.
Petitioner filed a petition for writ of habeas corpus in this Court on March 3, 2017. Dkt. 1. On March 13, 2017, this Court ordered Petitioner to file an amended petition. Dkt. 4.
In April 2017, Petitioner filed his amended petition for writ of habeas corpus in this Court, setting forth 15 grounds for relief. Dkt. 8. On August 8, 2017, Petitioner filed a document titled "Official Supp[l]emental Exhibit Motion," which included copies of what Petitioner describes as "CPT
Because Petitioner appears to be making a claim of actual innocence, the Court briefly discusses Petitioner's supplemental filings as well as related allegations from his amended habeas petition. In his first supplemental filing, Petitioner submitted what appear to be reports generated during the investigation of the claims against him. Those reports show that the victim, J.S.—who was 10 years old at the time— was seen for a forensic interview by a Child Protection Team ("CPT") case coordinator on February 9, 2010. Dkt. 13 at 3. The interview resulted in "positive findings of sexual abuse by family friend and roommate, [Petitioner]." Id. During the interview, J.S. "disclosed multiple incidents of penile-anal penetration with ejaculation, digital-vaginal penetration, cunnilingus, fondling and licking of her breasts, and forced masturbation by [Petitioner]." Id. She reported that the most recent incident occurred on February 8, 2010. Id. The writer of the report noted that "[t]here were several noted inconsistencies in [J.S.'s] history, but such inconsistencies are likely due to cognitive issues that may be the result of [J.S.'s] repeat victimization." Id. On this point, the reports show that J.S.'s "family ha[d] an extensive history with the department with past reports that were closed with verified findings of sexual abuse for both [J.S.] and her sister . . ." and that J.S. had "disclosed a history of sexual abuse by multiple perpetrators including her biological father." Id. at 5.
The reports also show that J.S. was seen for a medical evaluation on February 9, 2010 and that she "provided a positive history of sexual abuse and described the incidents in detail using all five senses." Id. at 3. The overall findings from the examination were "positive for sexual abuse by history, but with no physical findings." Id. The reports also state, "It is of note that an examination with no findings, in no way, indicates that the sexual abuse did not occur." Id.
The reports also show that, later—on February 22, 2010
According to Petitioner, semen was found on February 22, 2010 (Dkt. 8 at 8) but was never tested (Dkt. 15 at 2). It appears that Petitioner is claiming that, if the semen had been tested, it would have matched to J.B., not Petitioner. Dkt. 8 at 8 ("DNA was not found [until] the child on child case came into play"), 9 ("everyone wishes to listen to a 12 year old boy who done the crim[e]").
In his newly-discovered information document, Petitioner notes that J.S. told the CPT team that her mother told her not to speak of the abuse by J.B. or she could be taken from her mother's care. Dkt. 15 at 2. He also claims that the "truth in the matter" is J.B. "was not only 12 years old at that time [but] also a family member to a Citr[u]s County Government offic[i]al," which explains "why in all records everyone denied that [J.B.] had done [anything] [and] also why the sperm/sem[e]n was never tested." Id. He states that "Holly West from the Citr[u]s County [H]ea[l]th Department has stated that `NO sexual activity' between vict[i]m and movant and stated sex[u]al activity did happen between vict[i]m and [J.B.]." Id. (internal emphasis omitted). Finally, he notes that this case is "missing the fact of his medical history that makes [him] physical[l]y unable to do the crim[e] as well as movant never lived at vict[i]m's home." Id. at 3.
Finally, Petitioner's amended petition includes some assertions that can be read as claims of actual innocence, including the following: (1) "My case was the case that was upon allegations. The child protection team had mix two cases together" (Dkt. 8 at 10); (2) "somehow that semen ended up in Petitioner[']s case as well as it was never tested[;] there was no semen found during the medical examination of the Petitioner[']s case" (id. at 14); and (3) "They had let the child on child case close on allegations when that case had positive findings of sexual acts as well as semen being found" (id. at 15).
Respondents filed their response to Petitioner's amended habeas petition on April 10, 2018. Dkt. 23. In May 2018, Petitioner filed a document titled "Motion for Formal Hearing," the first sentence of which read, "COMES NOW, Petitioner Stephen Haecker pro se with his reply from the Assistant Attorney General Rebecca R. McGuigan." Dkt. 25. The Court denied the motion to the extent that Petitioner was requesting a formal hearing and appointment of counsel. Dkt. 26. The Court explained that it would consider the arguments set forth in the document as Petitioner's reply in support of his habeas petition. Id. Thus, the matter is now ripe for review.
Respondents argue that Petitioner's amended petition should be dismissed because it was untimely under 28 U.S.C. § 2244(d). Dkt. 23.
First, the Court concludes that Petitioner's amended petition
Only subsection (A) is at issue here.
Notably, Petitioner's untimely notice of direct appeal—filed on May 22, 2012—did not toll the statute of limitations because it was not "properly filed" under § 2244(d)(2). Smith v. Sec'y, Fla. Dep't of Corr., No. 3:17-CV-113-J-32JBT, 2018 WL 6724762, at *3 (M.D. Fla. Dec. 21, 2018) (citations omitted).
Petitioner's amended petition and supplements, however, can be liberally construed to invoke equitable tolling. Specifically, the form for filing a federal petition for writ of habeas corpus asks a petitioner to explain why the one-year statute of limitations in § 2244(d) does not bar the petition if the petitioner's judgment of conviction became final over a year ago. In response to that prompt, Petitioner wrote the following in his amended petition:
Dkt. 8 at 13. Elsewhere in the amended petition, Petitioner states that he "suffers from a violent seizure [d]isorder which causes at times continuous seizures [leaving] Petitioner unable to concentrate on matters for more than a few minutes a time." Id. at 15.
A habeas petitioner is "entitled to equitable tolling only if he shows (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. Florida, 560 U.S. 631, 649 (2010) (internal quotation and citation omitted). The petitioner bears the burden of proving circumstances that justify the application of equitable tolling. Lugo, 750 F.3d at 1209 (citation omitted). A petitioner "must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue." Id. (internal quotation and citation omitted). "[T]he allegations supporting equitable tolling must be specific and not conclusory." Id. (citation omitted). "Because equitable tolling is an extraordinary remedy, it is limited to rare and exceptional circumstances and typically applied sparingly." Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (internal quotation and citation omitted).
Here, Petitioner has not shown that he is entitled to the extraordinary remedy of equitable tolling. First, he has not shown that an extraordinary circumstance prevented timely filing. The fact that Petitioner ultimately had to "work alone" on the case is not an extraordinary circumstance warranting equitable tolling. Rich v. Dep't of Corr. State of Fla., 317 F. App'x 881, 883 (11th Cir. 2008) (citation omitted) (pro se status does not warrant equitable tolling). Petitioner's claim that he was "under the impression that counsel was doing the appeal" is also conclusory. He does not explain why he believed counsel was filing an appeal for him, what steps he took to contact his attorney when it appeared that an appeal was not being pursued, or when his incorrect "impression" was corrected. See Sharma v. United States, No. 6:12-cv-1081-Orl-19DAB, 2013 WL 12334829, at *4 (M.D. Fla. July 12, 2013) (rejecting claim of equitable tolling in § 2255 case where petitioner made conclusory claims that she was under the "impression" that her attorney would handle her direct appeal and habeas proceeding but did not indicate how she came by this impression or when it was corrected and gave no details about her attempts to contact him).
Likewise, Petitioner's conclusory claims that he was "very sick" do not establish an extraordinary circumstance warranting equitable tolling. The only illness mentioned in the record is Petitioner's claim that he has a seizure disorder that "at times" causes "continuous seizures [leaving] [him] unable to concentrate on matters for more than a few minutes at a time." Dkt. 8 at 15. But "mental impairment is not per se a reason to toll a statute of limitations." Hunter, 587 F.3d at 1308 (citation omitted). Rather, the alleged impairment must have affected Petitioner's ability to file a timely habeas petition before tolling is warranted. Id. The standard is rigorous: "To be entitled to equitable tolling on the basis of mental illness, a petitioner must show more than that it is difficult for him to understand and act upon his legal rights; rather, he must show that he was incapable of preparing and filing a federal habeas petition . . . any earlier than he did." Hay v. Sec'y, DOC, No. 3:15-cv-619-J-39PDB, 2017 WL 3387385, at *4 (M.D. Fla. Aug. 7, 2017) (internal quotation and citation omitted).
While Petitioner's allegation that he is sometimes "unable to concentrate on matters for more than a few minutes at a time" might indicate the presence of a condition that could warrant equitable tolling for some period of time, see Hunter, 587 F.3d at 1308-09 (petitioner entitled to hearing on equitable tolling where, among other things, he presented evidence that he had trouble communicating and was incapable of managing his own affairs), Petitioner has not explained how often (if at all) his seizure disorder affected him prior to the running of the statute of limitations or how long it rendered him "unable to concentrate on matters for more than a few minutes at a time" during that period. He certainly has not shown that he was incapacitated for the entirety (or even a portion) of the one-year federal habeas limitations period or the nearly five years that elapsed between the expiration of the statute of limitations and his March 3, 2017 federal habeas petition. Compare with id. (evidence that petitioner had been diagnosed with "chronic, irreversible mental retardation" was probative of his mental limitations during the limitations period and beyond).
To the contrary, the record includes multiple state court filings from Petitioner, both before and after the federal habeas statute of limitations expired. Those filings were clearly written by a layperson and reflect a lack of sophisticated legal knowledge, but they are, for the most part, intelligible and logical. Some of them also include citations to and discussions of statutes and caselaw. See, e.g., Dkt. 23-1 at 71-77, 87-95, 110-20. Petitioner was also ultimately able to file a federal habeas petition and an amended petition.
Second, even if the Court were to assume the existence of an extraordinary circumstance that prevented Petitioner from filing a timely federal habeas petition, Petitioner has not demonstrated sufficient diligence in pursuing his federal rights. "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653 (internal quotations and citation omitted). Here, Petitioner's only suggestion of diligence is that he "has been working on this case [non] stop for the last 5 years" (Dkt. 8 at 13), which the Court interprets as a reference to his multiple state court filings (most of which were untimely or otherwise improper). Even if the Court were to accept this representation,
Moreover, as Respondents argue, the record belies Petitioner's claim that he worked on his case "non stop" for five years. The state court record reveals large gaps—including an almost two-year gap between Petitioner's May 22, 2012 notice of appeal (which was dismissed on July 18, 2012) and his May 2014 motion for postconviction relief, during which time the federal habeas statute of limitations expired. Petitioner has not explained what, if anything, he was doing during those gaps to protect his federal habeas rights. Thus, the Court concludes that Petitioner cannot establish the diligence necessary to warrant equitable tolling.
Finally, the Court concludes that Petitioner has not made a sufficient showing of actual innocence
As best as the Court can tell, Petitioner is claiming that he is actually innocent because: (1) he was physically incapable of committing the crime and did not live with the victim; (2) J.S.'s mother told her not to tell anyone about the abuse by J.B.; (3) everyone took J.B. at his word when he denied abusing J.S. because he is related to a government official; and (4) there was no physical evidence that Petitioner sexually abused J.S., but there was physical evidence that J.B. abused her. It also appears that Petitioner is claiming that investigators mixed up his case with J.B.'s and incorrectly relied on the presence of semen in his case while closing J.B.'s case as an "allegations only" case. In reality, he claims, it was his case that was the "allegations only" case.
Some of this evidence is not new—such as Petitioner's alleged physical inability to commit the crime and the fact that he allegedly did not live with J.S. And the rest of this evidence does not suggest that Petitioner is actually innocent, which—in this context—means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). This is not a case where the victim alleged that one person abused her but the identity of the perpetrator was unclear. The case reports are clear that J.S. alleged that two separate people— Petitioner and J.B.—sexually abused her. Thus, the fact that semen from J.B. might have been found on February 22, 2010 (or that there was evidence of sexual activity between J.B. and J.S.) does not suggest that Petitioner is factually innocent of sexually abusing J.S. on February 8, 2010 (or any other time). Likewise, the fact that officials in Citrus County might have had a motive to exonerate J.B. of the abuse he allegedly committed does not suggest that Petitioner is actually innocent of the separate acts of abuse of which he was accused. The fact that J.S.'s mother allegedly told her not to talk about the abuse by J.B. also does not suggest that Petitioner is factually innocent of abusing J.S. Moreover, the lack of physical evidence of sexual activity between Petitioner and J.S. does not suggest his actual innocence of the crimes of which he was convicted—which were attempted sexual battery (Counts I-IV) and lewd or lascivious molestation (Count V). Dkt. 23-1 at 4-5.
Finally, Petitioner's "mix up" theory is unsupported by the record. The case reports he submitted are clear that J.S. accused two people of abusing her— Petitioner and J.B. They are equally clear that there was no physical evidence of sexual activity between Petitioner and J.S. but that "an examination with no findings, in no way, indicates that the sexual abuse did not occur." Dkt. 13 at 3.
Moreover, even if the Court assumed that all of Petitioner's "new" evidence was new and was somehow suggestive of his actual innocence, it would still have to be weighed against the other evidence to determine whether it is more likely that not that no reasonable juror would have convicted him beyond a reasonable doubt in light of all the evidence. The other evidence in this case includes J.S.'s statement that Petitioner sexually abused her. A reasonable juror could have believed J.S.'s allegations, even if there were some inconsistencies in her statements. Cf. Kuenzel v. Comm'r, Ala. Dep't of Corr., 690 F.3d 1311, 1317-18 (11th Cir. 2012) (rejecting claim of actual innocence and noting that a reasonable juror could have believed two witnesses even though they had given inconsistent statements). Thus, the Court cannot conclude that it is "more likely than not that no reasonable juror would have convicted [Petitioner] in light of the new evidence." Accordingly, Petitioner's claim of actual innocence is not sufficient to overcome the statute of limitations and his habeas petition is due to be dismissed as untimely.
For the reasons stated above, the Court finds that Petitioner's amended petition for writ of habeas corpus (Dkt. 8) is untimely and, thus, dismisses the petition with prejudice. The Clerk is instructed to enter judgment accordingly, terminate any pending motions, and close the file.
In addition, a certificate of appealability ("COA") and leave to appeal in forma pauperis are denied. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). "A [COA] may issue. . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make a 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) (quotation omitted), or that "the issues presented were adequate to deserve encouragement to proceed further," Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation and citation omitted). Petitioner has not made the requisite showing in these circumstances. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
