REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, Chief Magistrate Judge.
This cause is before the court on Petitioner's petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (ECF No. 1). Respondent filed a motion to dismiss the petition as untimely, with relevant portions of the state court record (ECF No. 16). Petitioner responded in opposition to the motion (ECF Nos. 19, 28).
The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that the habeas petition should be dismissed as untimely.
I. BACKGROUND AND PROCEDURAL HISTORY
Petitioner challenges the judgment of conviction and sentence entered in the Circuit Court in and for Liberty County, Florida, Case No. 2007-CF-60 (ECF No. 1 at 1). The procedural background of that case is established by the state court record submitted by Respondent (ECF No. 16).1 Petitioner was charged with one count of resisting a law enforcement officer with violence (Ex. D). Petitioner was arrested on May 17, 2007 (see Ex. B). The arrest report sets forth the following factual basis for the charge:
On the above date [05-17-2007] at appx. 1115 hrs, I Deputy Phinney was dispatched to 11276 NW Lake Mystic Road in Bristol, FL, in reference of [sic] a verbal altercation. Upon arrival I made contact with James Copeland which is Shannon Copeland's father. Mr. Copeland stated that he needed a deputy to try to talk to Shannon that she was acting out and would not take her medication for mental illness. Mr. Copeland invite [sic] me into his home to talk with Shannon at which time Shannon saw me coming. She then grabbed the telephone and started yelling at her father and myself. Shannon then left the room and locked herself into the bathroom and called someone to come get her. I then tried to talk with Shannon through the bathroom door and she kept telling me to leave that [sic] she was not crazy and was not going back to the mental hospital. I ask [sic] Shannon to open the door so we could talk that [sic] nobody was there to hurt her or take her away. At which time she called me a freak and she stated that she was not going to take her medicine, she was fine. She then climbed out the bathroom window and ran. After seeing the bathroom window open on the outside of the house, I went back to my patrol car to start looking for her. It was confirmed that [Martin] County had two warrants for Shannon's arrest. At this time Mr. Copeland was talking to Johnette Wahlquist. I told Mr. Copeland that there was two active warrants for Shannon's arrest, and if they saw which way she ran I needed to know. Mrs. Wahlquist stated that Shannon had called her and wanted her to pick her up, that she was at the neighbor's house. I instructed Mrs. Wahlquist to pick up Shannon. At which time I waited up the road. I then spotted Shannon in Mrs. Wahlquist's vehicle, at which time I conducted a traffic stop on Mrs. Wahlquist's vehicle at the corner of SR 12 and Harvel Street. Shannon attempted to run but instead she grabbed Mrs. Wahlquist around the head and neck area, as I instructing [sic] her that she was under arrest on two warrants. I then grabbed her right arm to remove her from the vehicle. She was pulling and yelling [that] nobody was taking her to jail, she was not going back to the mental hospital. At which time I removed her left arm that she had around Mrs. Wahlquist's neck enough for Mrs. Wahlquist to free herself. I then pulled Shannon out on the ground and placed her in handcuffs. She continued to resist and pull away until she was secured in the back of my patrol car and transported to the Liberty County jail. Upon arriving at the Liberty County jail, Shannon would not exit my patrol car. Shannon was then removed by myself and Lt. Chad Smith, and escorted into the jail. At which time Shannon was placed in the holding cell where she began to get hostile with Lt. Smith and Captain Partridge. Shannon was then sprayed with a one second blast of pepper spray by Lt. Smith. After trying to calm Shannon to book her on the two warrants from [Martin] County, she became irate again and started spitting toward myself and Captain Partridge, and another one second blast of pepper spray was deployed by Captain Partridge. Shannon was then placed back into the holding cell where Shannon urinated in [sic] the floor. Shannon then scooped the urine up into her hands and threw it on myself, Captain Partridge, and Deputy Partridge that was standing directly in front of the holding cell. At this time, Deputy Partridge deployed the M-26 taser, striking Shannon, one prong striking her in the lower chest area, and the other prong in the lower stomach area. Shannon then complied. EMS was notified to evaluate Shannon after being tased with the M-26.
(Ex. B). The Sheriff's Office requested that the prosecutor charge Petitioner with one count of resisting arrest with violence, and one count of battery on a law enforcement officer by expelling certain fluids (see id.); however, the prosecutor only charged her with the former count, that is, resisting a law enforcement officer with violence (Ex. D).
On June 8, 2007, upon the written report of a court-appointed expert, the trial court adjudged Petitioner incompetent to proceed and committed her to the Department of Children and Families to attain competence to proceed (Ex. C). On June 18, 2007, the State and defense counsel jointly moved for a mental evaluation to determine Petitioner's competency (Ex. E). On June 22, 2007, the trial court ordered the appointment of an expert to conduct a competency evaluation (Ex. F).
On August 14, 2007, with the circuit court "having been advised by the Department of Children and Families, by and through the Administrator of the Florida State Hospital, the facility in which the Defendant is currently being treated, the above named Defendant no longer meets the criteria for continued commitment under the provisions of Chapter 916, Florida Statutes," ordered a hearing to be held "on the issues raised in the Administrator's report" (Ex. G). A hearing was held on September 5, 2007 (Ex. H). At the commencement of the hearing, both the State and defense stipulated to the Hospital's report finding Petitioner competent to proceed (id.). Petitioner, having executed a written plea and acknowledgment of rights form prior to the hearing (Ex. I), entered a plea of nolo contendere to the charge of resisting a law enforcement officer with violence (Ex. H). The trial court conducted a colloquy and accepted Petitioner's plea as "being entered into freely, intelligently, and voluntarily and with a factual basis to support the charges" (id. at 3-6). Prior to imposing sentence, the court inquired whether Petitioner wished to address the court. Petitioner stated the following:
I was taking my medication. That was a misunderstanding that they had or someone had that I wasn't taking my medication, but I was. And I was seeing a doctor on a regular basis, a psychiatric nurse, and a licensed clinical social worker, so.
. . . .
I was very frightened. I thought—I didn't realize there were warrants out for me. My dad had called the police because he was upset with me over a minor thing. And the police showed up, and it frightened me. And I just left. And then it was after that that I understand that they found out there were warrants for me. They didn't come to the house to pick me up for warrants. My dad had called and told them that I was mentally ill and wasn't taking my medicine because he was upset with me. So, I didn't understand that there were warrants out for me. And when they put me in the holding cell, they pepper sprayed me and tased me with a taser gun. Then they started giving me water to put on my eyes, and then they stopped giving me water. And then I started scooping it up off the floor to put on my eyes. And that's when they said that I was expelling fluids at them. And that is not true.
(Ex. H at 13-14). After Petitioner addressed the court, the court adjudicated her guilty and imposed sentence of 113 days in the county jail with credit for 113 days of time served, and a three-year term of probation with special conditions that she (1) comply with recommendations for her treatment and take her medication for her mental health condition, (2) not return to Martin County except to answer the pending case and (3) have no contact with the person who was the subject of the aggravated stalking charge in the Martin County case (id. at 14). The trial court advised Petitioner that she had a right to appeal; that if she desired to do so, she needed to file a notice of appeal within 30 days; and that if she could not afford a lawyer, the court would appoint one for her at public expense (id. at 15). The judgment of conviction was rendered on September 5, 2007 (Ex. J). Petitioner did not appeal the judgment.
On January 7, 2009, an affidavit of violation of probation ("VOP") was filed (Ex. K). The violation report charged Petitioner with the following:
Violation of condition (1) of the Order of Probation by failing to make a full and truthful report to the probation officer on the form provided for that purpose and by failing to report to the probation office as directed, in that, on 1/1/09, the offender was instructed by Officer P. Morgan to report to the probation office on 1/5/09, in Quincy, Florida, and as grounds for belief that he [sic] offender violated her probation, Officer Al Joyner states that the offender failed to report as directed and as of 1/6/09, the offender has not reported as instructed or contacted the probation office.
(Ex. K).
An amended affidavit of VOP was filed on January 12, 2009, adding the following charge:
Violation of condition (3) of the Order of Probation by changing her residence without procuring the consent of the probation officer, and as grounds for belief that the offender violated her probation, Officer Al Joyner states that on or about 1/5/09, the offender did move from her last known place of residence at 11276 NW Lake Mystic Road, Bristol, FL without procuring the consent of the probation officer. An attempt to contact the offender at her residence on 1/5/09, was unsuccessful and this officer was informed that the offender no longer lived at the above address and they did not know where she was living. The offender's current whereabouts are unknown at this time.
(Ex. L). Petitioner was arrested on the VOP warrant on July 2, 2009 (Ex. N).
On July 30, 2013, Petitioner filed pro se "Motion for Relief," in which she requested that a "final disposition" be made on the VOP charge (Ex. O). On August 14, 2013, Petitioner filed a pro se "Petition for Writ of Habeas Corpus" in the Liberty County circuit court, but cited Florida Rule of Appellate Procedure 9.100 as its basis (Ex. P). The clerk of court assigned Case Number 2013-169-CA (id.). On December 5, 2013, the Liberty County circuit court dismissed the petition on the following grounds:
In the instant habeas petition, Petitioner captions case 07CF60 and appears to seek relief from the detainer lodged against her in Liberty County Case 07CF60 with the Department of Corrections. This habeas petition proceeded separately from her Case 07CF60. The Court takes judicial notice that the State Attorney is now actively prosecuting Petitioner on the charges in Case 07CF60. Further, the docket in the aforementioned case reflects that on July 30, 2013, Petitioner filed a motion seeking similar relief, disposition of the probation violation charges. As such, her claim is now mooted by the prosecution of the charges.
(Ex. S). Petitioner appealed the decision to the Florida First District Court of Appeal ("First DCA"), but the First DCA dismissed the appeal on April 4, 2014, due to Petitioner's failure to comply with a prior order of the court. (Ex. T).
Petitioner filed the instant federal habeas action on November 19, 2014 (ECF No. 1 at 15).2 She asserts the following grounds for relief:
Ground One: Ineffective assistance of counsel.
Dennis Cromley, a public defender, represented me. I never met with him until the day I entered the plea. He never provided me with the paperwork so I would be informed of the allegations against me. He did not pursue the insanity defense even though I had been found insane/incompetent on this charge.
Ground Two: Pleas not voluntary.
I was not properly medicated, mentally ill, and not fully informed of what I had been accused of.
(ECF No. 1 at 5, 7).
II. ANALYSIS
Pursuant to the requirements set forth in 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, which became effective on April 24, 1996, a one-year period of limitation applies to the filing of a habeas petition by a person in custody pursuant to a state court judgment. The limitation period runs 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;
(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.
Section 2244(d)(1).
Respondent argues that the appropriate statutory trigger for the federal limitations period is the finality date of the judgment of conviction, pursuant to § 2244(d)(1)(A) (see ECF No. 16 at 8). Petitioner does not argue that a different statutory trigger applies, nor do the allegations of her § 2254 petition suggest that a different trigger applies.
Petitioner did not appeal the judgment of conviction and sentence for resisting arrest with violence, which was rendered September 5, 2007. Therefore, the judgment became final thirty days later, on October 6, 2007.3 See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653, 181 L. Ed. 2d 619 (2012) ("[W]ith respect to a state prisoner who does not seek review in a State's highest court, the judgment becomes `final' under § 2244(d)(1)(A) when the time for seeking such review expires[.]"); Hampton v. State, 837 So.2d 611 (Fla. 5th DCA 2003) (absent direct appeal, the judgment and sentence became final 30 days after rendition); Davis v. State, 693 So.2d 700 (Fla. 2d DCA 1997) (same); Gust v. State, 535 So.2d 642 (Fla.1st DCA 1988) (same). The one-year deadline for filing a § 2254 petition expired one year later, on October 6, 2008. See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (limitations period should be calculated according to "anniversary method," under which limitations period expires on anniversary of date it began to run) (citing Ferreira v. Dep't of Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)). On or before October 6, 2008, Petitioner did not file any post-conviction application in state court that qualified for statutory tolling under § 2244(d)(2), nor did she file her § 2254 petition. Therefore, it is untimely.
Petitioner argues she is entitled to review of her § 2254 petition through the "actual innocence" exception to the time bar (see ECF No. 1 at 13; see also ECF Nos. 19, 28). In McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 185 L. Ed. 2d 1019 (2013), the Supreme Court held that there is an "equitable exception" to the statute of limitations set forth in § 2244(d), but only when the petitioner presents new evidence that shows it is more likely than not that no reasonable juror would have convicted her. 133 S. Ct. at 1928, 1931, 1933. The Court cautioned that "tenable actual-innocence gateway pleas are rare: `[A] petitioner does not meet the threshold requirement unless [s]he persuades the district court that, in light of [] new evidence, no juror, acting reasonably, would have voted to find [her] guilty beyond a reasonable doubt.'" Id. (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L. Ed. 2d 808 (1995) and citing House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L. Ed. 2d 1 (2006)).
The Supreme Court stated in Schlup:
a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] 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.
513 U.S. at 327. The Supreme Court has explained that "`actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L. Ed. 2d 828 (1998).
Here, Petitioner was convicted of resisting an officer with violence, a violation of Florida Statutes § 843.01. Petitioner was guilty of that offense if the evidence satisfied the following elements beyond a reasonable doubt: (1) Petitioner knowingly and willfully resisted or opposed an officer by offering or threatening to do him violence or by doing violence to him; (2) at the time, the person was an officer and was engaged in the lawful execution of a legal duty; and (3) at the time, Petitioner knew that the person was an officer. See Fla. Stat. § 843.01; Fla. Standard Jury Instructions in Criminal Cases, Part Two: Instructions on Crimes, Chp. 21, § 21.1.
In Petitioner's § 2254 petition and her responses to the motion to dismiss, Petitioner alleges that the Sheriff of Liberty County and his deputies were corrupt; that Deputy Phinney falsified his arrest report; and that she (Petitioner) was not aware of the existence of the two outstanding warrants for her arrest at the time Deputy Phinney attempted to arrest her on May 17, 2007 (see ECF No. 1 at 18; ECF No. 28 at 1, 4). However, Petitioner does not dispute that the two outstanding warrants actually existed, nor does she dispute that she knew that Deputy Phinney was an officer, and that she resisted or "pulled away" from him when he attempted to arrest her on the warrants (see id.). Furthermore, although Petitioner refutes Deputy Phinney's allegations with regard to her (Petitioner's) conduct after she was arrested and booked into the Liberty County jail, the State did not charge Petitioner with any offense relating to that post-arrest conduct; instead, Petitioner was charged and convicted only of resisting the deputy while he was attempting to arrest her (see Ex. D).
Petitioner also appears to contend she is innocent because she was insane and incompetent at the time she entered her nolo contendere plea (see ECF No. 28 at 1, 4). However, Petitioner has proffered no evidence to refute the evidence in the state court record that prior to entry of the plea, the Administrator of Florida State Hospital reported to the trial court that Petitioner was competent to proceed, which Petitioner's counsel admitted at the commencement of the plea proceeding on September 5, 2007 (see Ex. G, Ex. H at 3).
Petitioner has failed to demonstrate she is "actually innocent" of the charge of which she was convicted. Therefore, she is not entitled to review of her § 2254 petition through the "actual innocence" exception to the time bar.
Petitioner's filings also include a litany of alleged injustices she has suffered over the past fourteen years (see ECF No. 1 at 16-31; ECF No. 28). To the extent she intends these assertions as supporting a claim of equitable tolling, she has failed to demonstrate that she is entitled to equitable tolling of the § 2254 limitations period.
"Because the time period specified in 28 U.S.C. § 2244 is a statute of limitations, not a jurisdictional bar, the Supreme Court has held § 2244(d) does not bar the application of equitable tolling in an appropriate case." Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1157 (11th Cir. 2014) (citing Holland, 560 U.S. at 645). "[A] petitioner is entitled to equitable tolling only if [s]he shows (1) that she has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely filing." Holland, 560 U.S. at 649. As an extraordinary remedy, equitable tolling is "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).
Equitable tolling is assessed on a case-by-case basis, considering the specific circumstances of the case. See Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir. 2012); see Holland, 560 U.S. at 649-50 (clarifying that the exercise of a court's equity powers must be made on a case-by-case basis). The petitioner has the burden of establishing her entitlement to equitable tolling; her supporting allegations must be specific and not conclusory. Hutchinson, 677 F.3d at 1099. "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653; see also Smith v. Comm'r, Ala. Dep't of Corr., 703 F.3d 1266, 1271 (11th Cir. 2012) (per curiam) (acknowledging petitioners are not required "to exhaust every imaginable option, but rather to make reasonable efforts"). Determining whether a factual circumstance is extraordinary to satisfy equitable tolling 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 (quotation marks and citation omitted).
Petitioner has not alleged the existence of any circumstance during the period October 6, 2007 to October 6, 2008, let alone an extraordinary one, that actually prevented her from filing a § 2254 petition. Indeed, Petitioner does not allege she made any attempt to file a § 2254 petition during that time, or that she even attempted to ascertain the federal deadline. Petitioner thus failed to demonstrate she is entitled to equitable tolling of the federal limitations period.
III. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and 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)." Rule 11(a), Rules Governing Section 2254 Cases. 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 undersigned finds no 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 how to satisfy this showing) (citation omitted). Therefore, the undersigned recommends that the district court deny a certificate of appealability in its final order. Rule 11(a) additionally 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 this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. That Respondent's motion to dismiss (ECF No. 16) be GRANTED.
2. That the habeas petition (ECF No. 1) be DISMISSED with prejudice as untimely.
3. That a certificate of appealability be DENIED.
