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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

ALONZO MOORE, 

Petitioner, 

vs. NO. 1:02cv36-MMP/AK

MICHAEL W. MOORE, 

Respondent. 

_________________________________/

REPORT AND RECOMMENDATION

This cause was reinstated, Doc. 21, after the Eleventh Circuit determined that

Petitioner did not require its permission to file a second or successive petition, since his

prior § 2254 petitions were dismissed without prejudice and thus had not received an

adjudication on the merits. Doc. 19. Under that circumstance, this Court now turns to

determining whether this petition, which is the second federal attack in this Court on the

constitutionality of Petitioner’s 1977 conviction, is timely. 

Having previously failed to convince this Court that the petition was timely under

the usual scenario where the Court determines timeliness based on the date the

conviction became final, see 28 U.S.C. §2244(d)(1)(A); see also Moore v. State, No.

4:99cv191-WS/WCS (N.D. Fla.), Petitioner now attempts to bring this case within one of

the other subsections of the statute of limitations. Specifically, Petitioner argues that the

limitations period for filing this cause should run either from (1) the date on which an

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1

For a succinct recital of the history of the Hooks litigation, see Hooks v.

Wainwright, 775 f.2d 1433, 1439-40 (11th Cir. 1985).

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unconstitutional impediment which prevented him from filing was removed or (2) the

date on which the factual predicate for the claim could have been discovered by due

diligence. 28 U.S.C. § 2244(d)(1)(B) & (D). The factual predicate for both of these

claims is Petitioner’s insistence that the State of Florida failed to provide him with a

constitutionally adequate law library between 1977 and 1991, and that he did not know

about the 1994 Notice to Class in the Hooks litigation until after his 1998 

reincarceration.

Beginning in 1971, the Hooks class action challenged the sufficiency of Florida

state prison law libraries.1 See Hooks v. Singletary, Cause No. 3:71CV144-RWN (M.D.

Fla.); Hooks v. Wainwright, 578 F.2d 1102 (5th Cir. 1978) (affirming preliminary

injunction forbidding prison officials from discontinuing legal services project until such

time as state implements its own plan to meet Bounds requirements); Hooks v.

Wainwright, 775 F.2d 1433 (11th Cir. 1985) (reversing district court’s rejection of

proposed legal assistance plan and finding that plan for ensuring meaningful access to

courts does not require inclusion of attorney assistance), cert. denied, 479 U.S. 913

(1986).

Though the Court cannot dispute that there was a time when the State of Florida

did not provide constitutionally sufficient prison law libraries, Petitioner has not provided

any evidence that the constitutional infirmities which existed during Petitioner’s first

round of incarceration had not been removed by the time of Petitioner’s reincarceration

in the Florida Department of Corrections on January 30, 1998. See

http://www.dc.state.fl.us/ActiveInmates/search.asp. By that time, the 1994 plan for

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2

The Hooks case was finally closed on December 11, 2000, with the court’s

adoption of a 1998 Report and Recommendation addressing the Department of

Corrections’ 1996 library plan, as amended in 1998. See Hooks, Cause No.

3:71CV144-RWN (M.D. Fla.) at Docs. 202, 242, & 247. In adopting the R&R, the district

court found that the contents of the prison law library collections in the Department of

Corrections Plan complied with the constitutional requirements of Bounds v. Smith, 430

U.S. 817 (1977). Id. at Doc. 280. The plan which was adopted was first noticed to the

class in December, 1996. Id. at Doc. 202. The amendment was noticed in June, 1998. 

Id. at Doc. 242. On August 25, 1998, the court ordered the posting of a notice regarding

the R&R so that prisoners could register with class counsel their comments and

objections to the R&R no later than October 23, 1998. Id. at Doc. 248. The notice was

to be posted not later than September 23, 1998. Id. As discussed infra, by that time,

Petitioner was already filing motions in state court.

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access to the courts, upon which Petitioner places so much reliance, had been replaced

by the 1996 plan, and thus, any argument attempting to explain the tardy filing of the

instant petition based on Petitioner’s lack of an opportunity to object to the 1994 plan,

which was a matter of public record, or his inability to discover the 1994 notice, which

also was a matter of public record, until January 10, 2000, is plainly inconsequential. 

Furthermore, the record belies any argument that the State acted in any manner to

impede Petitioner’s access to this Court after his 1998 reincarceration. Within seven

months of returning to prison, Petitioner filed, on September 1, 1998, a third motion for

post-conviction relief in state court. Doc. 10, Ex. A at 102-127. He litigated this motion,

which was denied as untimely and successive, through appeal. He then immediately

filed his first petition for writ of habeas corpus in this Court on May 20, 1999. On that

occasion he attacked the same 1977 conviction at issue here but without raising the

timeliness arguments at hand, and he did not appeal the denial of the petition after his

motion for reconsideration was denied. Thus, even before he discovered what he

characterizes as the State’s acknowledgment of its unconstitutional past acts, Petitioner

was fully participating in a meaningful way in litigation related to his 1977 conviction.2

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3

The Court chooses this date because this appears to be the first court filing

Petitioner made after his January 30, 1998, reincarceration and clearly illustrates

Petitioner’s ability to have meaningful access to the courts. 

4

This generously assumes that the September 1, 1998, motion was a “properly

filed” motion. In all likelihood, it was not since it was denied, in part, because it was

untimely. See Drew v. Department of Corrections, 297 F.3d 1278 (11th Cir. 2002).

5

The date for determining the conclusion of state court post-conviction

proceedings does not include a ninety-day window for filing a petition for a writ of

certiorari in the United States Supreme Court. Coates v. Byrd, 211 F.3d 1225 (11th Cir.

2000), cert. denied, 531 U.S. 1166 (2001). 

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Petitioner has presented absolutely no reason that, at the very latest, he could

not have filed the instant petition shortly upon his reincarceration. However, even when

the Court gives Petitioner all reasonable (and even some possibly unreasonable)

concessions, the petition remains untimely. Using September 1, 1998, as the beginning

point3

 and then tolling the time between September 1, 1998, and the issuance of the

mandate on or about April 5, 1999, on the third post-conviction motion,4

 the one-year

began running on or about April 6, 1999.5

 It continued to run unabated during the entire

time that the federal petition for writ of habeas corpus was pending. See Duncan v.

Walker, 533 U.S. 167 (2001) (application for federal habeas corpus review is not

application for state post-conviction or other collateral review, and thus, time for filing

federal habeas petition is not tolled during pendency of petitioner’s first federal habeas

petition). Therefore, between April 6, 1999, and March 7, 2000, three hundred twentynine (329) days elapsed. Between March 8, 2000, and November 20, 2001,

Petitioner’s state court habeas petition was pending. If, under the same rationale as

previously used, the Court tolls that period as well, the statute of limitations resumed

running on November 21, 2001. By that time, Petitioner had only thirty-six days left on

the one-year time period for filing this action, which was not filed until February 26,

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6

The petition, which was signed on February 26, 2002, was not formally filed in

this Court until March 20, 2002. However, the Court will use the February 26 date as

the “filing” date pursuant to the mailbox rule since the Court does not have any other

indication of when the petition was deposited with prison officials for mailing, and this is

the most generous filing date in Petitioner’s favor. See Houston v. Lack, 487 U.S. 266

(1988).

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2002.6 By then, the statute of limitations had clearly expired, and this petition is

untimely.

 Between September 1, 1998, when Petitioner first filed a court pleading after his

reincarceration and December 27, 2001, the absolute last date when this petition could

possibly have been timely, approximately five hundred ninety-five habeas corpus

petitions were filed in this Court by state prisoners. That number does not include other

types of habeas corpus proceedings filed by state prisoners, such as those filed

pursuant to 28 U.S.C. § 2241, or § 1983 suits filed by state prisoners challenging the

conditions of their confinement. In short, the Court can take judicial notice that any

alleged deficiencies in the prison law library system has not hampered other prisoners

from seeking redress in this Court, and Petitioner’s unsupported allegations to the

contrary do not support a finding that Respondent unconstitutionally impeded his access

to this Court so as to delay the commencement of the one-year statute of limitations

pursuant to § 2244(d)(1)(B) until January 10, 2000.

III. Equitable tolling.

The time for filing a § 2254 petition may be equitably tolled, but only if a petitioner

can show “extraordinary circumstances that are both beyond his control and

unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th

Cir. 1999); see also Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000). In

short, to qualify for equitable tolling Petitioner must show not only extraordinary

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circumstances but also due diligence. Diaz v. Secretary for Department of Corrections,

362 F.3d 698, 701 (11th Cir. 2004). This is a difficult burden for a petitioner to

overcome, and indeed, the Eleventh Circuit has rejected most claims of equitable

tolling. Id. Instant Petitioner does not argue that he is entitled to equitable tolling of the

statute of limitations, but giving Petitioner all reasonable inferences, he has arguably

raised the issue based on the denial of meaningful access to the courts.

The Court has already discussed the argument regarding access to the courts. 

Though the Court’s previous discussion arose in a different context, the Court finds

nothing to alter its conclusions as they apply to the question of equitable tolling. See

also Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000) (alleged inadequacies of prison law

library were not exceptional circumstances warranting equitable tolling of one-year filing

period).

CONCLUSION

For the reasons discussed supra, the undersigned finds that the instant petition

was untimely filed. It is therefore respectfully RECOMMENDED that the amended

petition, Doc. 6, be DENIED AS UNTIMELY, and this cause be DISMISSED WITH

PREJUDICE.

IN CHAMBERS at Gainesville, Florida, this 15th day of April, 2005.

 s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

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recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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