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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ROLAND RAMSEY,

Petitioner,

vs. Case No. 5:10cv9/SPM/EMT

EDWIN G. BUSS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Now pending is Respondent’s motion to dismiss (Doc. 18) the amended petition for writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 6). Respondent seeks dismissal of the

petition on the basis that it was untimely filed, pursuant to 28 U.S.C. § 2244(d). Respondent filed

a copy of the state court record in support of the motion to dismiss (Doc. 18, Exhibits). Petitioner

filed a response in opposition to the motion to dismiss (Doc. 21).

This matter is referred to the undersigned magistrate judge for report and recommendation

pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(b). After careful consideration, it is the

opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter. 

It is further the opinion of the undersigned that the pleadings and attachments before the court show

that the petition should be dismissed as untimely.

I. BACKGROUND

The procedural background of this case is undisputed by the parties and established by the

state court record (Doc. 18; see also Doc. 21 at 1).1

 Petitioner was charged in the Circuit Court in

and for Jackson County, Florida, with one count of sale, manufacture, delivery, or possession with

intent to sell, manufacture, or deliver a controlled substance (Ex. B at 1). Petitioner pleaded nolo

1

 Hereinafter, all exhibits refer to the state court record filed with Respondent’s motion to dismiss (Doc.

18).

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contendere, pursuant to a written plea agreement (id. at 11–12). The trial court adjudicated

Petitioner guilty and sentenced him, pursuant to the plea agreement, to a term of three (3) years of

probation, with the first nine (9) months to be served in the county jail, with pre-sentence credit of

94 days (id. at 14–20). Petitioner did not appeal the judgment (see Doc. 18 at 2).

On September 8, 2004 and October 25, 2004, violation of probation warrants issued (id. at

24, 36). A violation of probation hearing was held on February 15, 2005, at which Petitioner was

represented by counsel (id. at 40–77). Petitioner was found guilty of violating his probation and

sentenced to fifteen (15) years of imprisonment, with pre-sentence credit of 325 days (id. at 80–86). 

Petitioner, through counsel, appealed the judgment to the Florida First District Court of

Appeal (“First DCA”). On February 23, 2006, the First DCA affirmed the judgment (Ex. F). 

Ramsey v. State, 921 So. 2d 779 (Fla. 1st DCA 2006). Petitioner’s counsel filed a notice to invoke

discretionary jurisdiction in the Florida Supreme Court (Ex. G). On October 31, 2008, the Florida

Supreme Court denied the petition (Ex. I). Ramsey v. State, No. SC06-390, 3 So. 3d 1247, 2008 WL

5772527 (Fla. 2008). Petitioner’s counsel filed a petition for writ of certiorari in the United States

Supreme Court (Ex. J). The Supreme Court denied review on January 12, 2009 (Ex. K). Ramsey

v. Florida, 129 S. Ct. 939, 173 L. Ed. 2d 139 (2009).

Petitioner filed the instant federal habeas action on January 14, 2010 (Doc. 1 at 1, 17). He

raises one claim: the court revoked his probation without affording him the right or opportunity to

confront his accusers, in violation of the Sixth Amendment (see Doc. 6 at 4).

II. ANALYSIS

Pursuant to the requirements set forth in 28 U.S.C. § 2244, as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214, which

became effective on April 24, 1996, a one-year period of limitation applies to the filing of a habeas

petition by a person in custody pursuant to a state court judgment. The limitation period runs from

the latest of:

(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;

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(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.

Section 2244(d)(1).

In the instant case, Petitioner does not assert that a government-created impediment to his

filing his § 2254 petition existed, that he bases his claim on a right newly recognized by the Supreme

Court, or that the facts supporting his claim could not have been discovered through the exercise of

due diligence before the date his conviction became final. Thus, the statute of limitations must be

measured from the remaining statutory trigger, which is the date on which his conviction became

final. See 28 U.S.C. § 2244(d)(1). 

The parties do not dispute that Petitioner’s conviction became final for purposes of the

AEDPA on January 12, 2009, the date the United States Supreme Court denied review (see Doc. 18

at 4; Doc. 21 at 1). See Chavers v. Secretary, Florida Dept. of Corrections, 468 F.3d 1273, 1274–75

(11th Cir. 2006) (judgment of conviction becomes “final” on the date in which the United States

Supreme Court either issues a decision on the merits of the petitioner’s direct appeal or denies

certiorari, or after the expiration of the 90-day period in which the petitioner could have filed a

petition for a writ of certiorari, which begins to run on the date of the appellate court’s affirmance

of the conviction, not the date of the appellate court’s mandate) (citing Bond v. Moore, 309 F.3d

770, 774 (11th Cir. 2002)). Therefore, Petitioner had one year from that date, or until January 12,

2010, to file his federal habeas petition. See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir.

2008) (limitations period should be calculated according to “anniversary method,” under which

limitations period expires on anniversary of date it began to run) (citing Ferreira v. Sec’y, Dep’t of

Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)). Petitioner concedes he did not file his habeas

petition by January 12, 2010 (see Doc. 21 at 1). Therefore, it was untimely. See Close v. United

States, 336 F.3d 1283 (11th Cir. 2003) (a petition filed one day late is untimely). 

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In Petitioner’s response to the motion to dismiss, he appears to assert he is entitled to

equitable tolling of the limitations period (see Doc. 21). A petitioner is entitled to equitable tolling

if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Holland v. Florida, — U.S. —, 130

S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct.

1807, 161 L. Ed. 2d 669 (2005)) (internal quotations omitted); see also Hunter v. Ferrell, 587 F.3d

1304, 1308 (11th Cir. 2009) (citation omitted). Because equitable tolling is “an extraordinary

remedy,” it “is limited to rare and exceptional circumstances” and “typically applied sparingly.” 

Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005). Thus, the Eleventh Circuit has

concluded that equitable tolling is available only “‘when a movant untimely files because of

extraordinary circumstances that are both beyond his control and unavoidable even with diligence.’” 

Id. (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)). The burden of

establishing entitlement to this extraordinary remedy rests with Petitioner. See Wade v. Battle, 379

F.3d 1254, 1264–65 (11th Cir. 2004); Drew v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).

In the instant case, Petitioner states he has no legal education and relied upon the pro bono

services of his previous counsel to assist him in drafting the appropriate documents to file in this

court (id. at 1–2). He states counsel was obligated to perform work in other cases and could help

Petitioner only as his schedule permitted (id. at 2). Petitioner additionally states that due to his

incarceration, postage and copying costs created a severe financial strain, and mailing and receiving

documents was difficult and time consuming (id.). He asserts he “acted with all due diligence and

has not intentionally done anything [to] impede the administration of justice” (id.).

Initially, Petitioner has failed to show he diligently pursued his rights during the year after

his conviction became final. Additionally, he does not allege that the attorney assisting him engaged

in any misconduct, either negligent or deliberate, that contributed to his untimely filing. 

Furthermore, the circumstances of his incarceration, including the financial costs of copying and

mailing documents and difficulties and delays in sending and receiving documents, are not

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extraordinary; they are usual incidents of prison life.2 Moreover, Petitioner has not provided details

of any specific actions he took toward filing his federal petition within the statutory time period, nor

does he allege that he took any efforts to determine when the relevant limitations period began to

run. In the absence of any connection between Petitioner’s alleged circumstances and the untimely

filing of the instant federal petition, he has failed to show he is entitled to equitable tolling.

For the aforementioned reasons, Respondent’s motion to dismiss should be granted, and the

§ 2254 petition should be dismissed as untimely.

III. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,”

and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed, even if the court

issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional right. 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S. Ct. 1595, 1603–04, 146 L.

Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, the

undersigned recommends that the district court deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final order, the court

may direct the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument to the

attention of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That Respondent’s motion to dismiss (Doc. 18) be GRANTED.

2

 Petitioner’s incarceration does not appear to impose any additional financial burden to his filing than the

burden carried by non-prisoners. Habeas petition forms are available to prisoners from the court free of charge. See

N.D. Fla. Loc. R. 5.1(J). Additionally, Florida correctional institutions do not require inmates to pre-pay the cost of

copying or mailing legal documents. See Fla. Admin. Code rr. 33-210.102, 33-501.302. Instead, the services are

provided to inmates and a lien is placed on their inmate accounts for the costs of copying and mailing legal

documents. Id.

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2. That the amended petition for writ of habeas corpus (Doc. 6) be DISMISSED with

prejudice as untimely. 

3. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 22nd day of April 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon the magistrate judge and all other parties. Failure to object

may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States

v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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