Tolbert v. State of Florida

• Court: District Court, S.D. Florida
• Decided: May 26, 2021
• Docket: 0:17-cv-62407
• Status: Unknown

Opinion

4eUNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division

Case Number: 17-62407-CIV-MORENO

CECIL TOLBERT,

Petitioner,

vs.

STATE OF FLORIDA and PAMELA JO BONDI, in her official capacity as Attorney General of the State of Florida,

Respondents.

________________________________________/

ORDER DENYING MOTION FOR EVIDENTIARY HEARING AND REQUEST FOR LEAVE TO CONDUCT DISCOVERY AND EXPAND THE RECORD

THIS CAUSE came before the Court upon Petitioner’s Motion for Evidentiary Hearing and Request for Leave to Conduct Discovery and Expand the Record (“Motion”). (D.E. 75), filed on May 25, 2021.1 For the following reasons, the motion is DENIED. On November 11, 2020, Magistrate Judge Reid issued a Report of Magistrate Judge (“R&R”) (D.E. 55) recommending that Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) be denied and that no evidentiary hearing be held. On May 21, 2021, Petitioner filed Objections (D.E. 66) to the R&R. On February 21, 2021, Petitioner filed Supplemental Objections to the R&R. (D.E. 73). Petitioner’s request for an evidentiary hearing is duplicative with the request for an evidentiary hearing in his Petition. (D.E. 1) at 16. Assuming Petitioner objected to the R&R’s

1 Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the date it is delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (citations and internal quotation marks omitted). recommendation that an evidentiary hearing be denied, the Court can consider the propriety of an evidentiary hearing in this case when it rules on the R&R. To the extent Petitioner argues that the state court erred by not holding an evidentiary hearing in connection with his postconviction motion, “[a] state prisoner has no federal constitutional right to post-conviction proceedings in state court.” Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (citations omitted). To the extent Petitioner seeks to introduce new evidence in this proceeding, “review under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 187 (2011). To the extent Petitioner seeks discovery under Rule 6 of the Rules Governing Section 2254 Cases, the request is untimely. The Eleventh Circuit issued its mandate and returned jurisdiction to this Court over a year ago, (D.E. 31), and an R&R has been issued. Furthermore, Petitioner’s conclusory allegations of improprieties in DNA testing are redundant with the merits inquiry and do not show good cause for such relief. Accordingly, having considered the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is ADJUDGED that the Motion for Evidentiary Hearing and Request for Leave to Conduct Discovery and Expand the Record (D.E. 75) is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, this 26th of May 2021.

Fedbrie bono FEDERICO A.MORENO] UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Cecil Tolbert, pro se 037846 Wakulla Correctional Institution Inmate Mail/Parcels 110 Melaleuca Drive Crawfordville, FL 32327 PRO SE