WALTERS

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS (DUVAL COUNTY)

I. Status

Petitioner, William Walters, an inmate of the Florida penal system, initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Doc. 1. He also filed a memorandum of law, see Doc. 2, and an appendix, see Doc. 4, supporting his Petition. Petitioner challenges a state court (Duval County, Florida) judgment of conviction for which he is serving a life term of incarceration. Doc. 1. Respondents argue that the Petition is untimely filed and request dismissal of this case with prejudice. See Doc. 8 (Resp.).¹ Petitioner replied. See Doc. 9. This case is ripe for review.

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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

(2) 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).

III. Analysis

On April⁴, 2001, a jury found Petitioner guilty of robbery with a deadly weapon (count one) and grand theft auto (count four).² Resp. Ex. A at 199-200. The trial court adjudicated Petitioner as a Habitual Felony Offender and sentenced him to a life term of incarceration as to count one and a ten-year term as to count two. Id. at 214-18. Petitioner, with help from appellate counsel, appealed and the First District Court of appeal per curiam affirmed his judgment and sentences without a written opinion on March 31, 2003. Resp. Ex. I. Petitioner filed with the First DCA a pro se motion for extension of time to seek rehearing, which the First DCA denied on April 30, 2003. Resp. Exs. J-

30, 2003. His one-year term ran for 116 days until it was tolled on November 23, 2003, when Petitioner filed a motion under Florida Rule of Criminal Procedure 3.800(a). Resp. Ex. M. While his Rule 3.800(a) motion was still pending,

Petitioner filed a motion under Florida Rule of Criminal Procedure 3.850. Resp. Ex. P. Petitioner’s one-year limitations period remained tolled until May 12, 2011, when the First DCA issued its mandate affirming the trial court’s denial of Petitioner’s Rule 3.850 motions.⁴ Resp. Ex. AA. Petitioner’s AEDPA statute of limitations resumed the next day and expired 249 days later on Monday, January 16, 2012, without Petitioner filing another motion in state court that

Although on June 16, 2011, Petitioner filed a Florida Rule of Criminal Procedure 3.853 motion for postconviction DNA testing, Petitioner’s Rule 3.853 motion did not toll the AEDPA limitations period because the motion did not constitute a challenge to the underlying conviction. See Brown v. Sec’y Dep’t of

Corr., 530 F. 3d 1335, 1338 (11th Cir. 2008) (holding that a Rule 3.853 motion for DNA testing is not an “application for post-conviction or other collateral review” to toll the AEDPA limitations period). Further, because there was no time left to toll, Petitioner’s February 26, 2018, “motion to dismiss/all writ” did not toll his federal limitations period. Resp. Ex. NN; see Sibley v. Culliver, 377 F. 3d 1196, 1204 (11th Cir. 2004) (stating where a state prisoner files postconviction motions in state court after the AEDPA limitations period has expired, those filings cannot toll the limitations period because “once a deadline has expired, there is nothing left to toll”).⁵ As such, the Petition is untimely filed. In his Reply, Petitioner acknowledges that this action is untimely filed, but requests that this Court overlook this procedural bar because he “consulted

512 F. 3d 1304, 1307 (11th Cir. 2008) (noting the Eleventh Circuit “held that an inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence.” (citation omitted)). “[E]quitable tolling is an extraordinary remedy” that is “‘typically applied sparingly.’” Thomas v. Att’y Gen. of Fla., 992 F. 3d 1162, 1179 (11th Cir. 2021) (quoting Hunter v. Ferrell, 587 F. 3d. 1304, 1308 (11th Cir. 2009)). Here, Petitioner contends that “had [he] been correctly advised, he would have promptly filed the instant 2254 Petition seven [] year[s] ago at the conclusion of his Rule 3.850” proceedings. Doc. 9 at 3. However, “attorney negligence, even gross or egregious negligence, does not by itself qualify as an ‘extraordinary circumstance’ for purposes of equitable tolling; either abandonment of the attorney-client relationship, . . . or some other professional misconduct or some other extraordinary circumstance is required.” Clemons v. Comm’r, Ala. Dep’t of Corr., 967 F. 3d 1231, 1242 (11th Cir. 2020) (quoting Cadet v. Fla. Dep’t of Corr., 853 F. 3d 1216, 1227 (11th Cir. 2017)). Petitioner asserts no facts showing he retained this unnamed Florida Bar attorney to file postconviction motions on his behalf or that this attorney abandoned him under circumstances justifying Petitioner’s near seven-year delay in pursuing his federal habeas remedies following his Rule 3.850 litigation. Thus, Petitioner is not entitled to equitable tolling. Petitioner also seeks to overcome the untimely nature of his Petition by raising a claim of actual innocence. Doc. 9 at 3-9. “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the statute of limitations.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). To avoid the one-year limitations period based on actual innocence, a petitioner must “present new reliable evidence that was not presented at trial” and “show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt in light of the new evidence.” Rozzelle v. Sec’y,

Fla. Dep’t of Corr., 672 F. 3d 1000, 1011 (11th Cir. 2012) (quotations and citations omitted); see Schlup v. Delo, 513 U.S. 298, 327 (1995) (finding that to make a showing of actual innocence, a petitioner must show “that it is more likely than not that no reasonable juror would have found [the p]etitioner guilty beyond a reasonable doubt”).

Here, Petitioner asserts that he “has presented new reliable exculpatory evidence in his ‘Sworn Memorandum of Law and Fact’ (Doc. 1), and ‘Appendix’ (Doc. 4), demonstrating his actual innocence . . . due to his counsel’s ineffectiveness.” Doc. 9 at 9. That is to say, Petitioner argues that the claims raised in his Petition satisfy the actual innocence exception to the one-year time bar and warrant a merits determination. The Court disagrees. After a thorough review of the pleadings and the state court record, the Court has determined that Petitioner has offered no new reliable evidence that was unavailable at the time of his trial. Indeed, Petitioner, in some manner, previously presented to the trial or state appellate court all ten of the claims he raises in the Petition and the supporting memo and appendix.⁶ See Resp. Exs. F, G, P at 101-243. And now,

65. The next day, Petitioner used a knife to rob Candice Burgess and Donna Siegel as they were working the cash register at Lil’ Champ. Id. at 158-64. Siegel identified Petitioner as the knife-wielding individual who assaulted them. Id. at 162. Burgess also identified Petitioner as the assailant and testified that she saw Petitioner driving away from Lil’ Champ after the robbery in a gray/silver sedan. Id. at 228, 235. A few days later, Officer Paul Williams conducted a traffic stop of a speeding gray sedan and identified Petitioner as the driver of the vehicle. Id. at 208-12. Petitioner fled from the traffic stop,

crashed the vehicle, and escaped on foot evading arrest. Id. at 212. Jackson confirmed that the recovered gray sedan was his stolen vehicle, and police found Petitioner’s fingerprints inside the car. Id. at 267, 314. Later, officers apprehended Petitioner during the investigation of an unrelated robbery.⁷ Resp. Ex. F at 4.

Petitioner now attempts to reiterate those previous allegations to overcome the procedural time bar. However, he has not produced exculpatory evidence, trustworthy eyewitness accounts, or critical physical evidence not previously available. He has failed to point to any evidence to show it is more likely than not that no juror, acting reasonably, would have found him guilty beyond a reasonable doubt because of new evidence. The Petition is due to be dismissed. Accordingly, it is ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) and this case are DISMISSED with prejudice.
2. The Clerk of Court shall enter judgment accordingly, terminate any pending motions, and close this case.
3. If Petitioner appeals this Order, the Court denies a certificate of appealability. Because the Court has determined that a certificate of appealability is not warranted, the Clerk shall terminate from the pending motions report any motion to proceed on appeal as a pauper that may be filed in this case. Such termination shall serve as a denial of the motion.® DONE AND ORDERED at Jacksonville, Florida, this 26th day of July, 2021.

Cirmotheg Corrig on Ww TIMOTHY J. CORRIGAN United States District Judge

Jax-7 C: William Walters, #071260 Anne Conley, Esq.