HANFIELD

v.

SECRETARY, DEPARTMENT OF CORRECTIONS

Order Before the Court is Petitioner Brittany Hanfield’s petition under 28 U.S.C. § 2254 (ECF No. 1).

Petitioner challenges the constitutionality of her state convictions and sentences in the Circuit Court of the Seventeenth Judicial Circuit of Florida in and for Broward County in three cases involving charges of armed robbery, carjacking, and aggravated battery with a deadly weapon. (See generally id.).

Respondent filed a Response (ECF No. 13) with an Appendix (ECF Nos. 13- 1–13-2) and a Notice of Filing Transcripts (ECF No. 14) containing the change of plea hearing transcript (ECF No. 14-1) and sentencing hearing transcript (ECF No. 14-2).

Petitioner did not file a reply and the time to do so has passed. The Court has carefully considered the parties’ written submissions, the record, and applicable law. For the following reasons, the petition is dismissed as untimely.

1. Background

On August 20, 2008, Petitioner pleaded no contest to burglary with a battery, aggravated battery upon an elderly person, and attempted armed robbery in case number 07018296CF10A. (See ECF No. 14-1 at 27:13–18).1 She also pleaded no contest to robbery with a deadly weapon in case number 07017346CF10A and carjacking, robbery with a deadly weapon, and aggravated battery with a deadly weapon in case number 07018298CF10A. (See id. at 27:20– 25, 28:1–3).

On September 26, 2008, Petitioner was sentenced to a total term of

On October¹, 2010, the trial court entered orders vacating the sentence and judgment for armed robbery in case number 07018298CF10A. (See ECF No. 13-2 at 66–69).

On October 10, 2010, Petitioner filed a motion to mitigate her sentence. (See id. at 71–75).

The trial court denied the motion on October 22, 2010. (See id. at 77). Petitioner did not appeal from the ruling.

On July 31, 2012, Petitioner filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. (See id. at 79–84).

The trial court denied the motion on June 4, 2015. (See id. at 114–17). Petitioner appealed, but on January 7, 2016, the Fourth District dismissed the appeal as untimely filed. (See id. at 138). The instant petition was filed on June³, 2022. (See ECF No. 1 at 2).2

2. Discussion

A. The Petition is Untimely

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a § 2254 petition must be filed within one year of certain trigger dates. See 28 U.S.C. § 2244(d)(1). Here, the applicable trigger date is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. at (d)(1)(A).

However, the limitations period is tolled while a “properly filed application for State post-conviction or other collateral review” is pending. Id. at (d)(2).

From there, the AEDPA statute of limitations continued untolled until Petitioner filed her Rule 3.850 motion on July 31, 2012. (See ECF No. 13-2 at 79–84).

In total, 639 days passed untolled from October 31, 2010 to July 31, 2012. The petition is therefore untimely.³

B. Equitable Tolling is Not Warranted

“Equitable tolling can be applied to prevent the application of AEDPA's statutory deadline when ‘extraordinary circumstances' have worked to prevent an otherwise diligent petitioner from timely filing his petition.” Helton v. Sec'y for Dep't of Corr., 259 F. 3d 1310, 1312 (11th Cir. 2001).

The U.S. Supreme Court set forth a two-prong test for equitable tolling, stating that a petitioner must demonstrate “1) that he has been pursuing his rights diligently, and²) that some extraordinary circumstances stood in his way and prevented timely filing.” Holland v Florida, 560 U. S. 631, 649 (2010).

Petitioner provides no explanation for the untimely filing. (See generally ECF No. 1).

Instead, she asserts she is “actually innocent and review is necessary to correct a miscarriage of justice.” (Id. at 14).

She proceeds to assert various legal arguments—including that an error was made on her Florida sentencing scoresheet and that her counsel misadvised her to enter a plea to an illegal sentence that violated double jeopardy. (See id. at 14–15). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citation omitted).

Petitioner

C. Certificate of Appealability

A prisoner seeking to appeal a district court’s final order denying his petition for a writ of habeas corpus has no absolute entitlement to appeal and must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1).

A certificate of appealability shall issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” Jd. at (c)(2).

Where a district court rejects a petitioner’s constitutional claims on procedural grounds—as here—the petitioner must demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).

The Court concludes that reasonable jurists would not find it debatable that the petition is barred by the statute of limitations.

Thus, a certificate of appealability is denied.

3. Conclusion

For the foregoing reasons, Petitioner Brittany Hanfield’s petition for writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 1) is dismissed as untimely. A certificate of appealability is denied. Because there are no issues with arguable merit, an appeal would not be taken in good faith, and thus, Petitioner is not entitled to appeal in forma pauperis. The Clerk is directed to close this case. Done and ordered, in chambers, in Miami, Florida, on March 22, 2023.

Robert N. Scola, Jr. United States District Judge

Copies, via U.S. Mail, to Brittany Hanfield

L78191

Lowell Correctional Institution Inmate Mail/Parcels 11120 NW Gainesville Road Ocala, FL 34482

PRO SE