Ashley L. Dunn v. Secretary, Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 1, 2020
• Docket: 19-12981
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12981 Non-Argument Calendar ________________________

D.C. Docket No. 6:18-cv-00759-RBD-GJK

ASHLEY L. DUNN,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 1, 2020)

Before MARTIN, ROSENBAUM and MARCUS, Circuit Judges.

PER CURIAM:

Ashley Dunn, a Florida prisoner proceeding pro se, appeals from the district

court’s dismissal of her 28 U.S.C § 2254 petition as untimely. A certificate of

appealability was granted on the issue of whether the district court erred in Case: 19-12981 Date Filed: 04/01/2020 Page: 2 of 11

concluding that Dunn’s § 2254 petition was not entitled to equitable tolling when

she claimed reliance on the state order holding her Fla. R. Crim. P. 3.850 motion in

abeyance. On appeal, she argues that her petition is entitled to tolling because she

reasonably relied on the state court’s holding of her Rule 3.850 motion in abeyance

as assurance that her federal time was being tolled. After careful review, we affirm.

We review a district court’s dismissal of a § 2254 petition as untimely de

novo. Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir. 2006). We also review de

novo a district court’s legal decision on the application of equitable tolling. San

Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011). However, we review for

clear error a district court’s determination of the relevant facts, including those

related to a petitioner’s diligence and whether extraordinary circumstances stood in

her way. Id. at 1265, 1269. Thus, “we must affirm a district court’s findings of fact

unless the record lacks substantial evidence to support them.” Id. at 1265 (quotations

omitted). “The burden of proving circumstances that justify the application of the

equitable tolling doctrine rests squarely on the petitioner.” Id. at 1268.

The relevant facts are these. In August 2013, Dunn was sentenced to life

without the possibility of parole for first-degree murder with a firearm (Count 1), in

violation of Fla. Stat. §§ 775.087 and 782.04(1), and thirty years’ imprisonment for

arson of a dwelling (Count 2), in violation of Fla. Stat. § 806.01(1)(a). The Florida

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Fifth District Court of Appeal (“Fifth DCA”) affirmed her sentences and convictions

on August 19, 2014, and issued its mandate on September 12, 2014.

On September 10, 2015, Dunn filed a pro se Fla. R. Crim. P. 3.850 motion,

titled “Motion for Post-Conviction Relief with Special Request to Temporarily Hold

Proceedings in Abeyance,” in which she asserted, without any argument, that her

convictions were obtained in violation of the Sixth and Fourteenth Amendments.

She added that the incongruity between Florida’s two-year deadline for filing for

postconviction relief and the federal one-year deadline was illogical and prejudiced

her because she was entitled to an extra full year of investigation and preparation

under Florida law. She asked the state court to hold her motion in abeyance until

she filed an amended Rule 3.850 motion. The state court found that Dunn’s motion

did not present any claims for relief and did not toll Rule 3.850’s two-year statute of

limitations, but granted her request for an abeyance, noting that it would not rule on

the sufficiency of her postconviction motion “at this time” and that she must “file a

facially sufficient” motion by September 12, 2016 “to avoid a procedural bar.”

On September 7, 2016, Dunn filed an amended Rule 3.850 motion, which was

subsequently amended for a second time. The state court ultimately denied the

motion on the merits on June 23, 2017. The Fifth DCA affirmed and issued its

mandate on April 30, 2018.

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On May 11, 2018, Dunn filed the instant pro se § 2254 petition, raising the

same 13 claims of ineffective assistance of counsel that she brought in her amended

Rule 3.850 motion. The state responded that Dunn’s § 2254 petition was untimely

because the one-year limitation period had expired on November 16, 2015, and her

September 2015 motion had not tolled her time. The district court denied Dunn’s

petition as untimely, agreeing with the state. This timely appeal followed.

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

§ 2254 petition is governed by a one-year statute of limitations that begins to run on

the latest of four triggering events:

(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.

28 U.S.C. § 2244(d)(1)(A)-(D). For purposes of § 2244(d)(1)(A), a state prisoner’s

conviction becomes final when the U.S. Supreme Court denies certiorari or issues a

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decision on the merits, or when the 90-day period in which to file a certiorari petition

expires. Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002).

The one-year limitation period for filing a § 2254 petition is statutorily tolled

during the time in “which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending.”

28 U.S.C. § 2244(d)(2). To qualify as an “application for State post-conviction or

other collateral review,” a pleading actually must seek “review” by making a good

faith request for legal relief from the court. Sibley v. Culliver, 377 F.3d 1196, 1200

(11th Cir. 2004). Therefore, a state habeas petition must: (1) set forth the grounds

upon which it is based; (2) state the relief desired; (3) attack the relevant conviction

or sentence; and (4) “contain something vaguely approaching legitimate, relevant,

coherent legal analysis,” whether grounded in state or federal law. Id. An

application is pending, for purposes of § 2244(d)(2), between when it is properly

filed and when it has received a final resolution under the state court’s postconviction

procedures. Cramer v. Sec’y, Dep’t. of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006).

Thus, time remains tolled until the state appellate court has issued its mandate or the

state supreme court denies review. Lawrence v. Florida, 549 U.S. 327, 332 (2007).

If a prisoner files an untimely § 2254 petition, the district court may still

review it if the petitioner demonstrates that she is entitled to equitable tolling by

showing that: (1) she has pursued her rights diligently, and (2) an extraordinary

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circumstance prevented her from filing a timely petition. Damren v. Florida, 776

F.3d 816, 821 (11th Cir. 2015). We’ve characterized the equitable-tolling standard

as a two-part test, stating that “equitable tolling is available only if a petitioner

establishes both extraordinary circumstances and due diligence.” Diaz v. Sec’y for

Dep’t of Corr., 362 F.3d 698, 702 (11th Cir. 2004) (emphasis omitted). Thus, courts

need not consider whether extraordinary circumstances exist if a petitioner’s delay

in filing the federal habeas petition exhibits a lack of due diligence. Id. at 702 & n.7.

“[E]quitable tolling is an extraordinary remedy [that] is limited to rare and

exceptional circumstances and typically applied sparingly.” Hunter v. Ferrell, 587

F.3d 1304, 1308 (11th Cir. 2009) (quotations omitted). “The diligence required for

equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible

diligence.’” San Martin, 633 F.3d at 1267. As to the “extraordinary circumstances”

requirement, the petitioner must show a causal connection between the alleged

extraordinary circumstances and the late filing of the petition. Id.

Our “precedent provides that federal habeas petitioners who rely upon the

timeliness of state post-conviction proceedings to satisfy the requirement of AEDPA

do so at their peril.” Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1333 (11th Cir.

2008); see also Howell v. Crosby, 415 F.3d 1250, 1251-52 (11th Cir. 2005) (holding

that a federal habeas petitioner is not entitled to equitable tolling merely because the

state court granted an extension of time to file his state postconviction petitions). In

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Tinker v. Moore, we rejected a petitioner’s argument that § 2244(d) forced him to

make an “impermissible choice” between seeking Florida or federal habeas relief.

255 F.3d 1331, 1334-35 (11th Cir. 2001). We reasoned that he did not have to forego

his state remedy in order to avail himself of the federal remedy, but was only

required to “exercise [his state remedy] within one year of the date his judgment

became final and do so in a manner that leaves him sufficient time to timely file his

federal petition.” Id.

In Akins v. United States, a movant argued for equitable tolling of his 28

U.S.C. § 2255 motion because (1) he was subjected to lockdowns in jail for several

months, during which he could not access the law library, and (2) prison officials

misplaced his legal papers for a period of time. 204 F.3d 1086, 1089-90 (11th Cir.

2000). After noting that the movant had ample time (including four years before

Congress adopted the AEDPA one-year period of limitation) to file his motion when

these impediments did not exist, we declined to apply equitable tolling, determining

that he had “failed to demonstrate that the untimely filing of his motion was due to

extraordinary circumstances that were both beyond his control and unavoidable even

with diligence.” Id. at 1090.

Similarly, in Dodd v. United States, a movant argued that he was entitled to

equitable tolling of his § 2255 motion because he was transferred to a different

facility and detained there for over ten months without access to his legal papers.

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365 F.3d 1273, 1282-83 (11th Cir. 2004). We declined to apply equitable tolling,

determining that such circumstances were not extraordinary and the movant did not

establish due diligence because he had nearly five months with no impediments to

prepare his motion and presented no evidence that “he made any request to have his

papers delivered to him, attempted to contact counsel to assist him with timely filing

his motion, or otherwise undertook any action that would suggest reasonable

diligence under the circumstances.” Id. at 1283 (footnoted omitted).

On the other hand, we’ve recognized that equitable tolling may be warranted

when a government official has misled a petitioner. Spottsville v. Terry, 476 F.3d

1241, 1245 (11th Cir. 2007). In Spottsville, for example, the petitioner had followed

the incorrect filing instructions issued to him in a Georgia superior court order and

improperly filed the necessary documents to appeal the denial of his state habeas

petition in the superior court, rather than the Georgia Supreme Court. Id. at 1243.

The petitioner then filed a § 2254 petition, which the district court dismissed as

untimely because it found no statutory tolling on the ground that the appeal

documents were not “properly filed.” Id. We held that the petitioner was entitled to

equitable tolling for the time when his appeal documents were in the wrong court,

noting that (1) the petitioner had followed the state court order’s instructions “to the

letter” by filing his papers in the superior court; (2) “it [was] unreasonable to expect

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a pro se litigant to second-guess or disregard an instruction in a written order of a

court”; and (3) the petitioner had diligently filed his § 2254 petition. Id. at 1245-46.

Similarly, in Knight v. Schofield, a clerk of the Georgia Supreme Court had

assured a petitioner that he would be notified when the court ruled on his state habeas

petition. 292 F.3d 709, 710 (11th Cir. 2002). When the court ruled, it sent the notice

to the wrong person and failed to notify Knight, and the AEDPA’s one-year

limitation period lapsed while he was waiting. Id. We held that the petitioner was

entitled to equitable tolling until the date he actually received notice of the final

disposition of his state application because the clerk had assured him he would

receive notice of its decision and, when the court failed to provide notice, he

exercised diligence in inquiring about the status of his case. Id. at 711. We added

that, while equitable tolling applied in this case, each case turns on its own facts. Id.

Addressing the preliminary issue of statutory tolling first, we conclude that

the district court did not err in finding that Dunn’s § 2254 petition was not subject

to statutory tolling from September 2015. As the record reveals, regardless of

whether Dunn’s September 2015 motion was “properly filed,” the court did not err

in finding that it was not an “application” for state postconviction relief. Dunn’s

September 2015 motion merely asserted that her convictions were obtained in

violation of her Sixth and Fourth Amendment rights without containing any

argument, caselaw, or legal analysis to that point. Thus, rather than being a properly

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filed application for postconviction relief that needed to be amended, the motion was

insufficient to qualify as an “application” for state postconviction relief at all. See

Sibley, 377 F.3d at 1200. Accordingly, the district court properly found that Dunn’s

September 2015 motion did not statutorily toll the one-year limitation period under

§ 2244(d)(2). See 28 U.S.C. § 2244(d)(2).

Nor did the district court err in finding that Dunn was not entitled to equitable

tolling since she had failed to demonstrate extraordinary circumstances or due

diligence. As the record reflects, Dunn intentionally tried to toll her federal one-

year limitation period by filing a placeholder motion in order to take advantage of

Florida’s two-year limitation period, which is directly contrary to this Court’s

holding in Tinker, 255 F.3d at 1334-35. Thus, even if she was misled by the state

court’s order holding her motion in abeyance, her reliance on the timeliness of her

state postconviction proceedings to satisfy the AEDPA’s requirements was at her

own peril and, consequently, did not constitute an extraordinary circumstance

beyond her control that warrants equitable tolling. See Johnson, 513 F.3d at 1333;

Howell, 415 F.3d at 1251 52.

Moreover, the district court did not clearly err in finding that Dunn was not

diligent. Diaz, 362 F.3d at 702 & n.7. As in Dodd, Dunn has presented no evidence

that, before she asked the state court to hold her motion in abeyance, she attempted

to contact counsel to assist her with timely filing a Rule 3.850 motion or otherwise

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undertook any action to timely file the motion that would suggest reasonable

diligence. Dodd, 365 F.3d at 1283. While she later asserted in her federal

proceedings that there were not enough law clerks to assist her and that she had

limited access to the law library, we’ve previously found that even a complete lack

of access to a law library for several months was not enough to excuse a lack of

diligence. Akins, 204 F.3d at 1089-90. Therefore, Dunn has not met her burden of

showing that it was unavoidable even with due diligence. See San Martin, 633 F.3d

at 1268. Accordingly, her petition was not subject to tolling, and we affirm.

AFFIRMED.