Opinion
CASE NO. 8:14-cv-2399-T-23MAP
09-15-2015
BRIAN DOEINCK, Applicant, v. SECRETARY, Department of Corrections, Respondent.
ORDER
Doeinck applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state conviction for burglary, for which he is imprisoned for fifteen years. Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 8) The respondent correctly argues that the application is time-barred.
The Anti-Terrorism and Effective Death Penalty Act creates a limitation for a Section 2254 application for the writ of habeas corpus. "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 . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, under 28 U.S.C. § 2244(d)(2), "[t]he 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."
Doeinck's conviction was final on February 17, 2011, and the limitation expired one year later, absent tolling for a state post-conviction proceeding. Doeinck let 356 days elapse before filing a state Rule 3.850 motion for post-conviction relief on February 8, 2012. (Respondent's Exhibit 9) Tolling continued until July 28, 2014, when the mandate issued. (Respondent's Exhibit 18) Doeinck had 9 days remaining (365 - 356 = 9). Consequently, Doeinck's federal one-year deadline was August 6, 2014 (July 28, 2014 + 9 days = August 6, 2014). Doeinck dated his federal application September 17, 2014, forty-two days after the deadline.
Doeinck's direct appeal concluded on November 19, 2010. (Respondent's Exhibit 5) The conviction became final after ninety days, the time allowed for petitioning for the writ of certiorari. 28 U.S.C. § 2244(d)(1)(A). See Bond v. Moore, 309 F.3d 770 (11th Cir. 2002), and Jackson v. Sec'y, Dep't Corr., 292 F.3d 1347 (11th Cir. 2002). Doeinck miscalculates the limitation deadline by counting the ninety days from the date his motion for rehearing was stricken. Doeinck filed the motion for rehearing pro se even though he was represented by counsel. The state's rules preclude a party from filing papers pro se if the party is represented by counsel. As a consequence, Doeinck acquires no tolling for the motion for rehearing.
Doeinck attempts to gain four extra days of tolling by arguing in his reply (Doc. 11 at 3-4) that on February 4, 2012, he handed his Rule 3.850 motion to prison officials for mailing. The contention is refuted by the motion (Respondent's Exhibit 9), which shows that on February 8, 2012, Doeinck signed the motion and handed it to prison officials for mailing.
Although on February 2, 2011, Doeinck filed a motion to reduce or modify his sentence under state Rule 3.800(c), Florida Rules of Criminal Procedure, that motion afforded Doeinck no tolling because the motion is a plea for leniency and challenges the validity of neither the conviction nor the sentence. "[U]nder the Florida rules at issue here, there is no collateral review — "judicial review that occurs in a proceeding outside of the direct review process" — as described in Kholi, 131 S. Ct. at 1289, that occurs pursuant to Rule 3.800(c)." Baker v. McNeil, 439 Fed. App'x 786, 789 (11th Cir. 2011) (distinguishing Wall v. Kholi, 562 U.S. 545 (2011)), cert. denied, 132 S. Ct. 1633 (2012). Moreover, even if eligible for tolling, the motion would afford Doeinck insufficient tolling to meet the federal one-year limitation.
Doenick filed the Rule 3.800(c) motion before expiration of the ninety days allowed for petitioning for the writ of certiorari. The ninety-days expired on February 17, 2011. The Rule 3.800(c) motion was denied seven days later on February 24, 2011. Because the application is untimely by more than forty days, seven additional days of tolling is inconsequential. --------
Doeinck asserts entitlement to equitable tolling. Doeinck recognizes in his reply that Holland v. Florida, 560 U.S. 631 (2010), establishes that equitable tolling applies to the one-year limitation and that Pace v. DiGuglielmo, 544 U.S. 408 (2005), establishes the standard for proving entitlement to equitable tolling. "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way." Pace, 544 U.S. at 418. Doeinck must meet both requirements, and he controls the first requirement — due diligence — but not the second requirement — extraordinary circumstances. The failure to meet either requirement precludes equitable tolling. Regarding the first requirement, an applicant's "lack of diligence precludes equity's operation," 544 U.S. at 419, but "[t]he diligence required for equitable tolling purposes is 'reasonable diligence,' not 'maximum feasible diligence.'" Holland, 560 U.S. at 653 (internal quotations and citations omitted). To satisfy the second requirement, the applicant must show extraordinary circumstances both beyond his control and unavoidable even with diligence. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
Doeinck asserts that, "because he has diligently attempted to file his petition in a timely manner," he is entitled to equitable tolling. Although he could meet the due diligence requirement, Doeinck presents no argument that he meets the extraordinary circumstance requirement. As a consequence, Doeinck fails to show entitlement to equitable tolling.
Accordingly, the application for the writ of habeas corpus is DISMISSED as time-barred. The clerk must close this case.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Doeinck is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Doeinck must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the application is clearly time-barred, Doeinck cannot meet Slack's prejudice requirement. 529 U.S. at 484. Finally, because Doeinck is not entitled to a COA, he is not entitled to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Doeinck must pay the full $505 appellate filing fee unless the circuit court allows Doeinck to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 15, 2015.
/s/_________
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE