Ramon F. Danny, Jr. v. Secretary, Florida Department of Corrections

811 F.3d 1301, 2016 U.S. App. LEXIS 1783, 2016 WL 403183
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 3, 2016
Docket14-15522
StatusPublished
Cited by14 cases

This text of 811 F.3d 1301 (Ramon F. Danny, Jr. v. Secretary, Florida Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramon F. Danny, Jr. v. Secretary, Florida Department of Corrections, 811 F.3d 1301, 2016 U.S. App. LEXIS 1783, 2016 WL 403183 (11th Cir. 2016).

Opinion

WILLIAM PRYOR, Circuit Judge:

This appeal presents the issue whether a petition for a belated direct appeal, under Florida Rule of Appellate Procedure 9.141(c), qualifies as • an “application for State ... collateral review,” 28 U.S.C. § 2244(d)(2), that, while pending, tolls the period of limitation for a Florida prisoner’s federal petition for a writ of habeas corpus. We answer that question in the negative based on our recent decision in Espinosa v. Secretary, Department of Corrections, 804 F.3d 1137 (11th Cir.2015), which held that a petition for belated post-conviction appeal under Rule 9.141(c) does not “involve ‘collateral review’ of [a] conviction” for the purpose of tolling the same statute of limitation. Id. at 1139. Because Ramon F. Danny Jr.’s petition for a belated direct appeal does not qualify as an application for state collateral review, we affirm the dismissal of his petition for a writ of habeas corpus as untimely.

I. BACKGROUND

On September 9, 2010, Danny pleaded guilty to the crime of lewd or lascivious molestation of a victim who was less than 12 years old. See Fla. Stat. § 800.04(5)(b). Danny pleaded guilty because the state agreed to waive the statutory minimum sentence of 25 years of imprisonment, id. § 775.082(3)(a)(4), and to request a sentence of 10 years of imprisonment. That day, a Florida court sentenced Danny to 10 years of imprisonment followed by 10 years of supervised probation. Danny did not file a direct appeal.

On February 18, 2011, Danny petitioned for a belated direct appeal on the ground that his attorney had disregarded his directions to file a motion to withdraw his plea and a notice of appeal. See Fla. R. App. P. 9.141(c). The First District Court of Appeal relinquished jurisdiction to the *1303 trial court, which appointed a special master to consider Danny’s petition. Following an evidentiary hearing, the special master issued a report that recommended denying the petition. On October 19, 2011, the First District Court of Appeal denied Danny’s petition.

Danny twice collaterally attacked his conviction in the Florida courts. On September 17, 2011, Danny moved for post-conviction relief based on the ineffectiveness of trial counsel, see Fla. R. Crim. P. 3.850, but the trial court denied the motion as “lacking] any factual basis.” The First District Court of Appeal affirmed and issued its mandate on November 14, 2012. On January 3, 2013, Danny again moved for postconviction relief on the grounds of ineffectiveness of counsel and of insufficient evidence, see id., but the trial court denied Danny’s motion as untimely, successive, and frivolous.

On June 15, 2013, Danny filed pro se a petition for a writ of habeas corpus in the district court. 28 U.S.C. § 2254. The State of Florida moved to dismiss Danny’s petition as barred by the one-year statute of limitation. Id. § 2244(d)(1). Danny argued that his petition was timely because the limitation period was tolled while his petition for a belated direct appeal was pending in the Florida courts.

The district court dismissed Danny’s petition for a writ of habeas corpus as untimely. See id. Danny’s petition for a belated direct appeal, the district court reasoned, did not toll the running of the statute of limitation because the state courts refused to “reopen direct review” and because Danny’s petition did not “entail direct or collateral review of a judgment of conviction or sentence in Florida.” The district court determined that Danny filed his federal petition several months after the limitation period expired. The district court concluded that the one-year limitation period commenced on October 13, 2010, when the time expired for Danny to file a direct appeal, and ran for 339 days; that the period was tolled from September 17, 2011, to November 14, 2012, while Danny’s first motion for state post-conviction relief remained pending; and that the limitation period resumed running on November 15, 2012, and expired on December 11, 2012, six months before Danny filed his federal petition on June 15, 2013.

II. STANDARD OF REVIEW

We review de novo the dismissal of a petition for a writ of habeas corpus as untimely. Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir.2006).

III. DISCUSSION

The timeliness of Danny’s petition for a writ of habeas corpus turns on whether the petition for a belated direct appeal that he filed in a Florida court qualifies for statutory tolling as an “application for State ... collateral review.” 28 U.S.C. § 2244(d)(2). Danny argues that his petition is an application for collateral review because it involved a matter peripheral to a direct review of his conviction and was filed under a rule entitled “Review Proceedings in Collateral or Post-Conviction Criminal Cases.” The State of Florida responds that Danny’s petition requested the opportunity to pursue a direct appeal and that the title of Florida Rule of Appellate Procedure 9.141 does not alter the nature of the relief that Danny sought. We conclude that Danny’s petition for a belated direct appeal is bereft of the characteristics of an application for collateral review under section 2244(d)(2) and that the district court correctly dismissed Danny’s petition as untimely.

Our recent decision in Espinosa, 804 F.3d 1137, forecloses Danny’s argument. Espinosa sought statutory tolling of the *1304 one-year statute of limitation for the period while his petition for belated postcon-viction appeal remained pending. Id. at 1140; see Fla. R. App. P. 9.141(c); Fla. R. Crim. P. 3.850. But we held that a petition for a belated appeal does not qualify as an application for collateral review because, under Florida law, it “does not reach the merits of the anticipated appeal or the validity of the order to be appealed.” Espinosa, 804 F.3d at 1141 (quoting Jones v. State, 922 So.2d 1088, 1090 (Fla. Dist.Ct.App.2006)).

Our decision in Espinosa adhered to the interpretation of the phrase “collateral review” provided by the Supreme Court in Wall v. Kholi 562 U.S. 545, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011). In Kholi, the Supreme Court explained that, “to trigger the tolling provision, [the] ‘collateral’ proceeding must also involve a ... ‘review,’ ” id.

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811 F.3d 1301, 2016 U.S. App. LEXIS 1783, 2016 WL 403183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramon-f-danny-jr-v-secretary-florida-department-of-corrections-ca11-2016.