CASEY

v.

SECRETARY, DOC (LEE COUNTY)

This matter is before the Court on the second amended 28 U.S.C. § 2254 petition for habeas corpus relief filed, through counsel, by Brian M. Casey, a prisoner of the Florida Department of Corrections. (Doc. 75). Casey attacks the manslaughter conviction and sentence entered by the Twentieth Judicial Circuit Court, in and for Lee County, Florida. (Id.) Respondents move the Court to dismiss the second amended petition as untimely because each of the claims raised in the petition was filed after the expiration of the one-year statute of limitation for 28 U.S.C. § 2254 habeas petitions. (Doc. 104). In reply, Casey argues that the Court should consider the petition on the merits because: (1) the petition was timely; (2) the arguments in the second amended petition relate back to the timely-filed original petitions; or (3) equitable tolling applies because Casey’s mental impairment prevented him from timely filing a “rational and reality-based petition.” (Doc. 105 at 1).1 Upon careful review of the docket and the pleadings in this case, the Court concludes that it cannot reach the merits of the claims raised in the second amended petition because, as explained below, the pleadings, exhibits, and attachments before the Court establish that it must be dismissed as untimely. However, to the extent Petitioner is able to do so, he may file a third amended complaint raising claims that relate back to the timely claims filed in his original petition.

I. Background and Procedural History

A. Relevant State Court Proceedings

On December 14, 2010, the State charged Casey with one count of second-degree murder in case number 10-CF-019945. (Doc. 104-2 at 2). On September⁷, 2012, Casey entered a negotiated no-contest plea to the reduced charge of manslaughter by a habitual violent felony offender. (Id. at 19–20). The trial court sentenced Casey to fourteen years in prison followed by sixteen years of probation. (Id. at 71).2 Casey timely appealed, but he voluntarily dismissed

B. Federal Habeas Proceedings

Casey signed his first 28 U.S.C. § 2254 petition on November 2, 2016. (Doc. 1).3 He raised the following five claims in the petition:

cv-696-FtM-JLB-MRM (Case 2:15-cv-696)). 3 Under the “mailbox rule,” a pleading is considered filed by an inmate on the date it was delivered to prison authorities for mailing, which (absent contrary evidence) is the date it was Ground 1. A physical altercation between Petitioner and trial counsel rendered his plea involuntary, in violation of the Sixth Amendment; Ground 2. Appellate counsel refused to file a direct appeal and the sentencing transcripts were altered on the appellate record; Ground 3. Trial counsel was ineffective for failing to preserve his appellate rights and for failing to advise him to reject a plea agreement on speedy trial and discovery violations; Ground 4. Trial counsel was ineffective for failing to file a motion to disqualify the judge based on the judge’s “unfair hearings on a motion to suppress”; and Ground 5. Trial counsel was ineffective for failing to advise Petitioner to reject his plea on the ground that the judge should have been recused. (Doc. 1 at 4–9). Before Respondents answered the petition, Casey filed a motion to appoint counsel along with an amended petition. (Docs. 9. 10). In his amended petition, Casey appeared to conflate and confuse issues from his second-degree murder trial (the conviction at issue in Case 2:15-cv-696) with those from his plea-based manslaughter conviction. The seven claims raised in the amended pro se petition, as stated by Casey, are as follows:

signed. Washington v. United States, 243 F. 3d 1299, 1301 (11th Cir. 2001). Ground 1. The Defendant was denied a First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights and the plea is void;4 Ground 2. The Defendant was denied his Sixth Amendment right to counsel and First, Fourth, Fifth, and Fourteenth Amendment rights to post-conviction proceedings. Counsel [had no] authority to represent Petitioner terminated and the Plea is void; Ground 3. The Defendant was denied a Sixth Amendment Right to effective counsel that would not challenge Sixth Amendment Speedy Trial violations of Fla. R. Crim. P. § 3.191 violations. Counsel refused to preserve Appeal Rights and misrepresented to client his legal standing in the Plea Agreement; Ground 4. The Defendant was denied a Sixth Amendment right to effective counsel that failed to recuse Judge Edward Volz and Defendant feared trial with a judge that rigged his murder trial in [a] related case and denied legally sufficient Motions to disqualify. Counsel refused to seek prohibition proceedings and plea is involuntary; Ground 5. The Defendant was denied a Sixth Amendment right to effective counsel that did not seek rehearing on a Motion to Suppress Statements, denied on December 13th, 2011 in a fundamentally unfair hearing without evidence or witnesses requested on December 5th, 2011; where the Court informed the Defendant subpoenas would issue, but then held the hearing by surprise to produce a harsh outcome. The Defendant was denied a Fourteenth Amendment right to appeal where the court changed the transcripts of said hearing to hide judicial misconduct during the hearing

33). Most of Casey’s complaints of trial court error concerned alleged fraud in Casey’s second-degree murder trial, at issue in Case 2:15-cv-696. However, he also alleged that “the State promised Casey that if he took the plea he would be discharged on speedy trial in his direct appeal on his convictions of murder and arson from [his earlier trial].” (Doc. 10-14 at 28). On the same

22, 2017 to await resolution of Casey’s interlocutory appeal in Case 2:15-cv-696. (Doc. 40). On October 17, 2017, the Eleventh Circuit dismissed the interlocutory appeal in Case 2:15-cv-696 pursuant to Casey’s motion for voluntary dismissal. (See Case

Casey filed the first counseled petition on January 22, 2018 (Doc. 65), and at the Court’s direction, an amended counseled petition on February 20, 2018. (Doc. 75). Casey raised the following claims in the second amended petition: Ground One. Mr. Casey was taken through a guilty plea and sentencing while incompetent to proceed, in violation of his Substantive Due Process rights and the Fifth, Sixth, and fourteenth Amendments to the U.S. Constitution. Ground Two. Mr. Casey was denied effective assistance of trial counsel (based upon failure to investigate and raise incompetency), in violation of the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Ground Three. The combination of all constitutional errors in this case violates Mr. Casey’s due process rights provided by the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. (Doc. 75 at 4, 7, 9).8

II. Analysis

A. A 28 U.S.C. § 2254 federal habeas corpus petition is subject to a one-year statute of limitation. Under 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-year period

(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 that 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.

28 U.S.C. § 2244(d)(1). Here, Casey does not allege, nor does it appear from the pleadings or record, that the statutory triggers set forth in sections 2244(d)(1)(B)-(D) apply. Therefore, the limitations period is measured from the remaining statutory trigger, which is the date Casey’s conviction became final. 28 U.S.C. § 2244(d)(1)(A). B. Casey’s original habeas petition was untimely under 28 U.S.C. § 2244(d)(1)(A). Casey voluntarily dismissed the direct appeal of his conviction on July 17, 2014. His conviction then became final on October¹⁵, 2014, ninety days after the voluntary dismissal. See Chapman v. McNeil, No. 3:08cv5/LAC/EMT, 2008 WL 2225659, at *3 (N.D. Fla. May 28, 2008) (recognizing that most courts in the

Eleventh Circuit have concluded that a state conviction becomes final ninety days after the state appellate court grants the defendant’s motion for voluntary dismissal of the appeal). Casey filed his first pro se habeas petition on November 2, 2016. Therefore, it was filed 384 days late unless tolling principles apply to render it timely.

C. Casey is entitled to statutory tolling on his pro se

28 U.S.C. § 2254 petitions. “The 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 shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). On August⁴, 2014—before his conviction became final under 28 U.S.C. § 2244(d)(1)—Casey filed his first Rule 3.850 Motion. The Rule 3.850 Motion remained “pending” (and tolled the AEDPA statute of limitation) until mandate issued on June¹, 2016. See Woulard v. Sec’y, Dep’t of Corr., 707 F. App’x 631, 633 (11th Cir. 2017) (recognizing that a state postconviction motion remains pending until the appellate court issues the mandate for its order affirming the trial court’s denial of the motion). However, because Casey’s Rule 3.800(a) motion to withdraw his plea was still pending at that time, the AEDPA clock did not start to run again until Casey voluntarily withdrew the appeal of the denial of the Rule 3.800(a) motion on July⁶, 2016.9 None of the one-year period to file his federal habeas had yet passed, so Casey had through July⁶, 2017, to file a timely habeas petition. Casey, acting pro se, filed his first 28 U.S.C. § 2254 petition in this Court 117 days later, on November 2, 2016, and he amended that petition on January 3, 2017. Therefore, all claims raised in Casey’s pro se petitions were timely. D. Casey is not entitled to statutory tolling for the new claims raised in the counseled petitions. On January¹², 2017, the Court directed Counsel to file an amended petition ”or file a notice that [Petitioner] wishes to proceed on the claims set forth in the original petition” by April¹², 2017. (Doc. 13). If filed on that date, any new claims raised in the petition would have been timely.

However, because Casey’s AEDPA statute of limitation expired on July⁶, 2017, any new claim filed after that date was outside of the one-year limitation period unless it related back to the claims raised in Casey’s original pro se petitions. See Zack v. Tucker, 704 F. 3d 917, 922–23 (11th Cir. 2013) (recognizing that the timeliness of a § 2254 petition “must be evaluated on a claim-byclaim basis”).¹⁰ As noted, the new claims raised in Casey’s counseled petitions question his competence to enter a no contest plea of manslaughter to the second-degree murder charge in case number 10-CF-019945. (Doc. 75 at 4, 7, 9). Respondents argue that each of these claims was raised for the first time in Casey’s counseled petitions, and is therefore, untimely. (Doc. 104).

Although the fantastical allegations made in Casey’s state and federal pleadings may support a conclusion that he suffered from a mental impairment when he filed those pleadings, a due process claim based on Casey’s competency to enter a plea was simply not raised in his pro se petitions and was not timely raised in his counseled amended petitions. The tenuous connection (that the plea was involuntary) between Casey’s pro se claims of fraud and trickery by state actors and Counsel’s claims of Casey’s mental incompetence during his plea proceedings is not tied to a “common core of operative facts” such that Ground One of the second amended petition relates back to claims raised in the timely pro se petitions.¹² See Ciccotto v. United States, 613 F. App’x 855, 859 (11th Cir. 2015) (finding that claims that counsel was ineffective for failing to request a competency evaluation and that the trial court erred by not ordering a competency evaluation did not relate back to the claims raised in the timely petition because nowhere in the grounds originally raised did the petitioner suggest that he “was actually incompetent to stand trial or sufficiently close

F. Casey is not entitled to equitable tolling on the new

claims raised in the counseled petition. A habeas petitioner is entitled to equitable tolling of the AEDPA statute of limitation if he can show that: (1) he has pursued his rights diligently; and (2) some extraordinary circumstance stood in his way to prevent timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). “Equitable tolling is an extraordinary remedy which is typically applied sparingly.” Lawrence v. Florida, 421 F. 3d 1221, 1226 (11th Cir. 2005). To satisfy the diligence requirement, a petitioner must show only “reasonable diligence,” not “maximum feasible diligence.” Holland, 560 U.S. at 653. Counsel argues that Casey’s ongoing mental impairment is an extraordinary circumstance that entitles him to equitable tolling of the AEDPA statute of limitation. (Doc. 105 at 8–20). In support, Counsel points to the pro se petitions filed by Casey at the outset of this case, noting that the defects in the original petitions led to Counsel’s appointment. (Id. at 13). Indeed, when appointing Counsel, the Court found that Casey’s amended petition was “based on a delusional perception of reality” and that Casey’s “disorganization in communication” made it difficult to follow. (Id. at 14). Counsel now argues that Casey’s mental impairment was constant throughout the AEDPA timeframe, and as a result, he would have been incapable of filing a timely nondefective habeas petition. (Id. at 18). Counsel’s argument misses the mark. When a petitioner’s mental incompetence causes him to untimely file his habeas petition, the incompetence may constitute an “extraordinary circumstance” for purposes of tolling the AEDPA statute of limitation. See Hunter v. Ferrell, 587 F. 3d 1304, 1308 (11th Cir. 2009). However, a blanket assertion of mental incompetence is insufficient to automatically toll the AEDPA statute of limitation. Id. (“[M]ental impairment is not per se a reason to toll a statute of limitation.”). Rather, the petitioner must show a causal link between the mental condition and the untimely filing. Lawrence v. Florida, 421 F. 3d 1221, 1226–27 (11th Cir. 2005) (holding that the petitioner’s claims of lifelong mental impairments “without more, is insufficient to justify equitable tolling”). Here, Casey has not shown a causal link between his alleged mental impairment and the late filing. When the Court appointed Counsel, 187 days remained to file a timely amended habeas petition. While Counsel now argues that Casey could not have filed a timely cognizable petition within the remaining time frame (due to his mental impairment), she has not explained how his impairment prevented his court-appointed attorney from timely raising the incompetency claims on his behalf. In other words, Counsel has not demonstrated a causal link between Casey’s impairment and the untimely filing.¹³

Casey also cites Sossa v. Diaz, 729 F. 3d 1225 (9th Cir. 2013) to support his claim for equitable tolling. In Sossa, the petitioner had filed a timely pro se federal habeas corpus petition that contained no claims for relief. The court gave Sossa the opportunity to file an amended petition. However, the court granted extensions to file the amended petition that ultimately made it untimely. The district court dismissed the amended petition because there were no claims in the original petition for relation back. The Ninth Circuit held that Sossa was entitled to equitable tolling because the orders granting him extra time to file an amended petition led him to believe that the amended petition would be timely.

Here, unlike the petitioner in Sossa, Casey was not proceeding pro se in his amended petition. Counsel was presumably aware of the risk that new claims would be time-barred if they did not relate back to the timely claims Casey asserted in his pro se petitions. See Pliler v. Ford, 542 U.S. 225, 231 (2004) (“Explaining the details of federal habeas procedure and calculating statutes of limitations are tasks normally and properly performed by trained counsel as a matter of course.”); Dominguez v. Williams, No. 2:12-CV-01609, 2014 WL 4635741, at *3 (D. Nev. Sept. 16, 2014) (“[C]ounsel, unlike [petitioner], is not a pro se litigant who is inexperienced in the law. Counsel would need to take into account the possibility that an amended petition or an extension of time might run afoul of the statute of limitations.”). Also, while Casey’s initial complaint and amended complaint contained numerous substantive claims, Mr. Sossa’s initial petition contained no substantive claims. The Court’s orders granting extensions in this case did not affirmatively mislead Casey or Counsel into believing that the amended petition could contain new and unrelated claims. In other words, Casey could have filed an out-of-time petition containing claims that amended, supplemented, or related back to those timely raised, and those claims would also have been timely. Casey is not entitled to equitable tolling based on Sossa. Because Casey does not establish an “extraordinary circumstance” justifying the application of equitable tolling to his new claims,¹⁵ the claims raised in the counseled petition must be dismissed as time-barred under 28 U.S.C. § 2244(d).

G. Casey may file a third amended complaint raising

claims that relate back to the timely pro se petitions. Counsel was appointed in this case because Casey has difficulty expressing his habeas claims. His pro se petitions contained allegations that appeared illogical or even delusional. However, as noted by the Court, Casey also raised claims in his first pro se petition that, if true, could warrant habeas relief. Specifically, he asserted that trial and appellate counsel did not preserve his appellate rights and that trial counsel was ineffective for advising Petitioner to plead guilty—presumably because he had valid defenses to the charges. (Doc. 1 at 4–9). Petitioner will be allowed a final opportunity to file a timely habeas petition. Counsel should review the earlier (timely) petitions and the state court record to extract any potentially meritorious claims (if they exist) that relate back to the timely-raised claims.

III. Conclusion

Accordingly, it is hereby ORDERED:

1. The claims raised in the second petition for writ of habeas corpus (Doc. 75) are DISMISSED as time-barred.
2. Within THIRTY (30) DAYS from the date on this Order Counsel shall either file a third amended petition containing only claims that relate back to the timely claims or advise the Court that, in her opinion, the original petitions did not contain meritorious claims.
3. Mr. Casey’s pro se motions (Docs. 133, 135, 137) are STRICKEN without prejudice to Counsel filing any new motions deemed necessary.
4. Mr. Casey’s objection to the Magistrate Judge’s Orders striking his earlier pro se pleadings (Doc. 136) is OVERRULED. DONE AND ORDERED in Fort Myers, Florida on March 18, 2022.

f — ~ Af MN E Job

JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2 Copies to: Counsel of Record