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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

HENRY SORGE,

Petitioner,

v. Case No. 3:10cv114/LC/MD

EDWIN G. BUSS, 

1

Respondent.

______________________________________________________________________

ORDER

Before the court is a petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2254 (doc. 1) and supporting memorandum (doc. 2). Respondent has

moved to dismiss the petition as time-barred, providing relevant portions of the state

court record. (Doc. 12). Petitioner has responded in opposition to dismissal. (Doc.

15). After careful consideration, it is the opinion of the undersigned that no

evidentiary hearing is required for the disposition of this matter, Rules Governing

Section 2254 Cases 8(a). It is further the opinion of the undersigned that the

pleadings and attachments before the court show that the petition is untimely and

should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Over ten years ago petitioner was charged with first-degree premeditated

murder in the Circuit Court of Escambia County, Florida, Case Number 00-2662. 

Edwin G. Buss succeeded Walter A. McNeil as Secretary of the Florida Department of

1

Corrections, and is automatically substituted as the respondent. Fed.R.Civ.P. 25(d)(1).
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(Doc. 12, Ex. A, Ex. D, p. 1). He went to trial and was convicted of the offense. The 2

conviction was reversed on appeal on the grounds that petitioner’s due process

rights were violated by the trial court’s denial of a defense motion for continuance

sought for the purpose of evaluating petitioner’s sanity at the time of the offense. 

Sorge v. State, 834 So.2d 268 (Fla. 1st DCA 2002) (copy at Ex. B). Petitioner was

again tried and convicted of first-degree premeditated murder. The conviction was

reversed on appeal on the grounds that petitioner’s Sixth Amendment right of

confrontation was violated when the defense was precluded from impeaching the

testimony of a prosecution witness. Sorge v. State, 915 So.2d 707 (Fla. 1st DCA

2005) (copy at Ex. C). 

Subsequently, on March 24, 2006, petitioner entered a counseled no contest

plea to the lesser offense of second-degree murder with a weapon. There was no

agreement on the sentence, which was left to the discretion of the court. (Ex. D, pp.

11-39, 52-55). The maximum sentence that could have been imposed was a term of

years not exceeding life imprisonment. (Id., pp. 14, 23-24, 34-35). Upon conducting

a plea colloquy and accepting petitioner’s plea, the trial court adjudicated petitioner

guilty of second-degree murder with a weapon and sentenced him to 65 years in

prison with credit for 5 years and 277 days. (Id., p. 35, 60-66). Judgment was

entered that day. (Id., pp. 60-66). Petitioner did not appeal from the judgment. (Doc.

1, p. 2; Doc. 12, Ex. D). 

On April 3, 2006, petitioner, through counsel, filed a motion to correct illegal

sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the

sentence imposed effectively exceeded a life sentence. (Ex. D, p. 68). The motion

was denied by order entered June 29, 2006. (Id., p. 71). Petitioner appealed. (Id., p.

72). Counsel filed an Anders brief, indicating that the Florida Supreme Court had 3

Hereafter, all references to exhibits are to those provided at Doc. 12, unless otherwise noted.

2

References to page numbers are to the Bates stamp appearing at the bottom center of the page.

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

3

Case No: 3:10cv114/LC/MD
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ruled contrary to petitioner’s position. (Ex. F, p. 4 ). The Florida First District Court

of Appeal (“First DCA”) per curiam affirmed on March 23, 2007, without written

opinion. Sorge v. State, 952 So.2d 1197 (Fla. 1st DCA 2007) (Table) (copy at Ex. G). 

The mandate issued April 18, 2007. (Ex. H).

On October 16, 2009, petitioner filed a pro se Motion for Postconviction Relief

Asserting Newly Discovered Evidence. (Ex. I, pp. 1-14). The motion was dismissed

as untimely on October 30, 2009. (Id., pp. 15-28). The First DCA per curiam affirmed

on March 12, 2010, without written opinion. Sorge v. State, 30 So.3d 497 (Fla. 1st

DCA 2010) (Table) (copy at Ex. L). The mandate issued April 7, 2010. (Ex. M).

Petitioner initiated this federal habeas proceeding by filing a petition on April

13, 2010. (Doc. 1, p. 1).

DISCUSSION

Because petitioner filed this § 2254 petition after April 24, 1996, the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the

AEDPA governs the present petition. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059,

138 L.Ed.2d 481 (1997). Pursuant to 28 U.S.C. § 2244, a one-year period of limitation

applies to the filing of a federal habeas corpus 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;

(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

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(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

§ 2244(d)(1). According to the tolling provision of § 2244(d), the time during which

a “properly filed” application for state postconviction or other collateral review is

pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).

 In the instant case, petitioner has not asserted that a government-created

impediment to filing his petition existed, or that he bases his claim on a right newly

recognized by the United States Supreme Court. Therefore, the limitations period

runs from the later of the remaining triggers: either the date petitioner’s judgment

became final, or the date on which the factual predicate of the claim presented could

have been discovered through the exercise of due diligence. 

Respondent asserts that§ 2244(d)(1)(A) controls, and that under that provision

the petition is untimely. Because petitioner did not appeal his judgment of

conviction, it became final for purposes of § 2244(d)(1) on April 24, 2006, which is 4

thirty days after rendition of the March 24, 2006 judgment and sentence. See FLA.

R. APP. P. 9.140(b)(3) (an appeal by a defendant in a criminal case is commenced by

filing a notice of appeal “at any time between the rendition of a final judgment and

30 days following rendition of a written order imposing sentence.”); see also FLA. R.

APP. P. 9.020(h) (defining “rendition” as the filing of the signed, written order);

Bridges v. Johnson, 284 F.3d 1201, 1202 (11 Cir. 2002) (holding that where th

petitioner did not seek direct review of his judgment of conviction or sentence, his

judgment of conviction (entered upon his guilty plea) became “final” for purposes

of § 2244 on the date his 30-day right to appeal expired); Walk v. State, 707 So.2d 933

(Fla. Dist. Ct. App. 1998) (holding that if “a conviction and sentence are not appealed,

they become final 30 days after they are entered.”). 

April 23, 2006 was a Sunday.

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At that time, petitioner’s motion to correct illegal sentence was pending which

tolled the limitations period. Therefore, although the limitations period was

triggered on April 24, 2006, the time between April 24, 2006 and April 18, 2007 (the

date of issuance of the mandate on appeal of the order denying the motion) is not

counted toward the limitations period. See Nyland v. Moore, 216 F.3d 1264, 1267

(11 Cir. 2000) (recognizing that a “properly filed” state postconviction petition is th

“pending” under Florida procedure – and consequently tolls the limitations period

– until the appellate court’s issuance of the mandate on appeal). 

The limitations period began to run on April 19, 2007, and expired one year

later on April 21, 2008, absent additional statutory tolling. Because petitioner had 5

no properly filed applications for state postconviction or other collateral review

pending during that critical period (April 19, 2007 to April 21, 2008), his time for

seeking federal habeas review expired on April 21, 2008. Petitioner’s federal habeas

6

petition was not filed until April 13, 2010. Therefore, if § 2244(d)(1)(A) is the

triggering provision, the petition is untimely. 

Petitioner argues that his petition is timely under § 2244(d)(1)(D), because it

is based on newlydiscovered evidence that he did not discover until August of 2009. 

(Doc. 1, p. 14). This argument is rejected. 

Petitioner’s habeas petition presents one claim: “Petitioner was convicted on

the basis of a no contest plea that was obtained by the State without Petitioner’s

knowledge and appreciation of its consequences.” (Doc. 1, p. 4). In support of this

claim, petitioner asserts that before he entered his plea, defense counsel advised

him that he would be sentenced to “a term of years not to exceed his life

April 19, 2008 was a Saturday.

5

Petitioner’s motion for postconviction relief was filed after the limitations period expired.

6

Therefore, that motion did not toll the limitations period. See Alexander v. Secretary, Dep’t of

Corrections, 523 F.3d 1291, 1294 (11 Cir. 2008) (holding that a state court motion for postconviction

th

relief or other collateral review cannot toll the limitations period if that period has already expired);

Webster v. Moore, 199 F.3d 1256, 1269 (11 Cir. 2000) (same). Nor did it reinitiate the federal

th

limitations period. Tinker v. Moore, 255 F.3d 1331, 1333 (11 Cir. 2001).

th

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expectancy.” (Id., p. 5A). Petitioner believed the plea to be in his best interest

because “it created the possibility of release from prison within his life expectancy,

as opposed to a life sentence.” (Id.). Petitioner, who was 31 years old at the time

of his plea, alleges that three years after he was sentenced, his mother discovered

(while shopping for life insurance on the Internet) actuarial/life expectancy tables

indicating that the average life expectancy of a white male is 69 years. (Id., p. 5B). 

She shared this information with petitioner in August of 2009. Based on this

information, petitioner asserted in his Rule 3.850 motion, as he does here, that his

plea was involuntary, because “he was of the understanding that the 65-year

sentence would not exceed his life expectancy; if the average life expectancy of a

white male is 69 years, then his sentence would exceed his life expectancy by 21

years or, with the 85% gain time factored in, 13 years.” (Doc. 1, p. 5B) (footnote

omitted). Petitioner argues he could not have discovered the actuarial/life

expectancy tables sooner because he is incarcerated and “prison does not allow for

the kind of information-sharing that exists in the free world.” (Doc. 2, p. 3). 

The relevant inquiry under § 2244(d)(1)(D), is not when petitioner actually

discovered the facts underlying his claim, but when petitioner could have learned

of the factual predicate through the exercise of due diligence. See 28 U.S.C. §

2244(d)(1)(D); Slutzker v. Johnson, 393 F.3d 373, 382 n. 9 (3 Cir. 2004) (“[T]he rd

statute of limitations starts running from the date on which the factual predicate of

the claim or claims presented could have been discovered through the exercise of

due diligence, not the date on which the factual predicate actually was discovered.”)

(citations and internal quotation marks omitted); Owens v. Boyd, 235 F.3d 356, 359

(7 Cir. 2000) (holding that under § 2244(d)(1)(D), “the time commences when the th

factual predicate could have been discovered through the exercise of due diligence,

not when it was actually discovered by a given prisoner.”) (internal quotation marks

omitted). Due diligence does not require “the maximum feasible diligence,” but it

does require reasonable diligence in the circumstances. Moore v. Knight, 368 F.3d

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936, 940 (7 Cir. 2004) (quoting Wims v. United States, 225 F.3d 186, 190 n. 4 (2 Cir. th nd

2000)). Section 2244(d)(1)(D) provides a petitioner with a later accrual date than

section 2244(d)(1)(A) only “if vital facts could not have been known.” Owens, 235

F.3d at 359.

Here, assuming without deciding that the actuarial tables constitute a “fact,”

and even further assuming (without deciding) that petitioner’s decision to plead no

contest was based on assurances that he would be sentenced to “a term of years

not to exceed his life expectancy,” the record demonstrates that petitioner knew the 7

factual predicate of his claim within days of being sentenced. Petitioner’s motion

to correct illegal sentence filed just 8 days after sentencing asserted, essentially,

that the 65-year sentence exceeded petitioner’s life expectancy. (Doc. 12, Ex. D, p.

68; see also Ex. F, p. 4 (acknowledging in the Anders brief that the argument made

in petitioner’s Rule 3.800(a) motion – that “the 65-year sentence imposed effectively

exceeds a life sentence” – was rejected by the Florida Supreme in Alvarez v. State,

358 So.2d 10 (Fla. 1978) (holding that a defendant’s life expectancy is irrelevant to

determining whether a term of years exceeds “life”))). Thus petitioner, through

counsel, “knew” of the factual predicate of his claim before his conviction became

final. See Wood v. Spencer, 487 F.3d 1, 5 (1 Cir. 2007) (holding that lawyer’s st

knowledge of factual predicate is attributed to client for purposes of § 2244(d)(1)(D));

see also e.g., Deskins v. McNeil, No. 8:05cv1625, 2008 WL 3285754, at *4 (M.D. Fla.

Aug. 8, 2008) (imputing attorney’s knowledge of facts to petitioner). 

But even if counsel’s knowledge cannot be imputed to petitioner, the fact

remains that actuarial/life expectancy tables are readily available to the public. 

Certainly, if petitioner had exercised reasonable diligence before entering his plea

or at least upon being sentenced, he would have asked defense counsel or a family

member to look up the life expectancy of a white male. Had he done so, he would

In reality this assertion is belied by the transcript of the plea hearing. (Doc. 12, Ex. D, pp. 11-

7

39).

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have learned the alleged “factual predicate” of his present claim. See, e.g.,

Schlueter v. Varner, 384 F.3d 69, 74-75 (3 Cir. 2004) (holding that habeas petitioner rd

could have discovered factual predicate for conflict-of-interest claim involving trial

counsel through exercise of due diligence prior to effective date of AEDPA, not on

later date when petitioner actually discovered that defense co-counsel allegedly

shared civil practice with prosecutor; it was inconceivable that attorneys could have

hidden their office sharing arrangement from small legal community or public,

petitioner’s current attorneys learned of arrangement simply by interviewing co-trial

counsel (a step which could have been accomplished years earlier), and petitioner’s

current attorneys learned the details of the office sharing arrangement merely by

reviewing court records and filings, all of which were matters of public record).

Based on the foregoing, the undersigned concludes that the factual predicate

of petitioner’s claim was known to him, or could have been discovered by him with

due diligence, prior to petitioner’s judgmentof conviction becoming final. Therefore,

28 U.S.C. § 2244(d)(1)(A) is the triggering provision governing the timeliness of the

petition.

CONCLUSION

The instant federal habeas petition is untimely. Petitioner has not established

entitlement to equitable tolling or any other exception to the limitations period. 8

Therefore, the petition must be dismissed. 

Section 2244(d) is subject to equitable tolling. Holland v. Florida, — U.S. —, 130 S.Ct. 2549,

8

177 L.Ed.2d 130 (2010). But a petitioner is entitled to equitable tolling “only 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.” Id., at 2562-63 (citation and internal quotation marks omitted). The petitioner

here has not made that showing.

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CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District Courts provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” 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).” Rule

11(a), Rules Governing Section 2254 Cases. 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 court finds no substantial showing of the denial of a constitutional right

in this case. 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, no certificate of appealability is issued herewith. If

either party objects to this denial, that party may file a motion for reconsideration of

the denial; however, a motion to reconsider such denial does not extend the time to

appeal. Rule 11(a), Rules Governing Section 2254 Cases. 

Accordingly, it is ORDERED:

1. The clerk shall change the docket to reflect that Edwin G. Buss has been

substituted as respondent in this cause.

2. Respondent’s motion to dismiss (doc. 12) is GRANTED.

3. The petition for writ of habeas corpus (doc. 1) challenging the conviction

and sentence in State of Florida v. Henry Sorge, entered in the Circuit Court of

Escambia County, Florida, case number 00-2662, is DISMISSED WITH PREJUDICE.

4. No certificate of appealability will issue.

DONE AND ORDERED this 22 day of February, 2011. nd

s/L.A. Collier 

LACEY A. COLLIER

SENIOR UNITED STATES DISTRICT JUDGE

Case No: 3:10cv114/LC/MD