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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GARY THOMAS,

Petitioner,

vs.

CASE NO. 4:10cv276-RH/WCS

KENNETH S. TUCKER, Secretary, 

Florida Department of Corrections,1

Respondent.

 /

REPORT AND RECOMMENDATION

This is a petition for writ of habeas corpus filed by Gary Thomas pursuant to 28

U.S.C. § 2254. Doc. 1. Petitioner challenges his conviction for sexual battery upon a

child twelve years of age or older but less than eighteen years of age, by a person in

familial or custody authority, case number 2004 CF 309, in the Circuit Court of the

Second Judicial Circuit, in and for Gadsden County, Florida. Id.

Respondent filed a motion to dismiss the petition as untimely. Doc. 18. The

motion was accompanied by the paper record. Doc. 18. References herein to exhibits

1

 On August 24, 2011, Kenneth S. Tucker succeeded Edwin G. Buss as the

Secretary of the Florida Department of Corrections, and is automatically substituted as

Respondent. Fed.R.Civ.P. 25(d). 

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are to the paper record. Petitioner filed a response to the motion. Doc. 19. Petitioner

had also submitted argument in response to my order to show cause, doc. 5, why the

petition should not be dismissed as untimely. Doc.6.

Legal analysis

There is a one year limitations period for filing a § 2254 petition. 28 U.S.C. §

2244(d)(1). The period generally runs from "the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking such

review," though there are later commencement dates.2 A conviction is not final until the

expiration of a 90 day period for seeking certiorari review in the United States Supreme

Court, or the conclusion of such review, whichever is later. Nix v. Secretary for Dept. of

Corrections, 393 F.3d 1235, 1237 (11th Cir. 2004), cert. denied, 545 U.S. 1114 (2005);

Pugh v. Smith, 465 F.3d 1295, 1298-1299 (11th Cir. 2006); Clay v. United States, 537

U.S. 522, 123 S.Ct. 1072, 1075, 155 L.Ed.2d 88 (2003) (also noting that the 90 days is

counted from the date of the opinion on direct appeal rather than the mandate).3

 "[T]he

limitations period should be calculated according to the “anniversary method,” under

2

 The limitations period runs from the latest of specified dates, which also include

(in addition to that quoted above): the date on which an unconstitutional impediment

which prevented the applicant from filing is removed; the date on which the right

asserted was initially recognized by the Supreme Court and made retroactive on

collateral review; and the date on which the factual predicate for the claim could have

been discovered by due diligence. § 2244(d)(1)(A)-(D).

3

 The 90 days for seeking certiorari runs from the date of the opinion, not the

mandate, or (if a petition for rehearing is timely filed) from the denial of rehearing or (if

rehearing is granted) the subsequent entry of judgment. S.CT. RULE 13(3). In

computing time, the event that begins the period is excluded, and the last day is

included unless it is a Saturday, Sunday, legal holiday, or day on which the court is

closed or inaccessible. S.CT. RULE 30(1); FED.R.APP.P. 26(a); FED.R.CIV.P. 6(a).

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which the limitations period expires on the anniversary of the date it began to run." 

Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (citations omitted).

Petitioner's conviction was affirmed by opinion dated September 12, 2006. Ex.

Q. Rehearing was denied on November 3, 2006. Ex. Q. Petitioner's conviction

became final for AEDPA purposes 90 days later, on February 1, 2007. See also, doc.

5, p. 2. 

28 U.S.C. § 2244(d)(2) provides: "The time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward any period of

limitation under this subsection." "[T]he phrase 'collateral review' in § 2244(d)(2) means

judicial review of a judgment in a proceeding that is not part of direct review." Wall v.

Kholi, U.S. 131 S.Ct. 1278, 1282, 179 L.Ed.2d 252 (2011) (emphasis added). 

"Viewed as a whole, then, 'collateral review' of a judgment or claim means a judicial

reexamination of a judgment or claim in a proceeding outside of the direct review

process." 131 S.Ct. at 1285. The Supreme Court in Kholi commented that a motion for

post-conviction discovery or a motion for appointment of counsel, unlike the motion to

reduce sentence before it, "generally are not direct requests for judicial review of a

judgement, and do not provide a state court with authority to order relief from a

judgment.." 131 S.Ct. at 1286, n. 4. See also, Brown v. Secretary for Dept. of

Corrections, 530 F.3d 1335, 1338 (11th Cir. 2008). Consistent with Kholi, petitions for

mandamus which do not seek "post-conviction or other collateral review" of the

judgment of conviction do not toll the period. See also, Moore v. Cain, 298 F.3d 361,

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365-367 (5th Cir. 2002), cert. denied,537 U.S. 1236 (2003) (quoting § 2244(d)(2), other

citations omitted). 

On February 2, 2007, Petitioner filed in the state court a "petition for writ of

habeas corpus" against the Secretary of the Florida Department of Corrections, seeking

to compel his attorney to provide him a copy of the record on appeal. Ex. CC. The

petition, treated as a petition for extraordinary relief, was denied as frivolous on April 19,

2007. Id. On April 30, 2007, Petitioner filed in state court a "petition for writ of

mandamus" seeking to compel his former appellate counsel to provide him a copy of his

record on direct appeal. Ex. R. It was denied as moot on November 30, 2007. Id. 

These petitions did not toll the time for filing a § 2254 motion because they were not

applications for "collateral review with respect to the pertinent judgment." They only

sought discovery.

On October 16, 2007, Petitioner filed a Rule 3.850 motion in state court. Ex. S. 

Respondent concedes that this motion tolled the AEDPA period until December 28,

2009, when the mandate issued denying the appeal from denial of the Rule 3.850

motion. Ex. AA; doc. 18, p. 14.

Thus, the AEDPA period ran from February 1, 2007, to October 16, 2007, a

period of 256 days. The period begin to run again on December 28, 2009, and ran for

another 109 days, until April 16, 2010, when it expired. This § 2254 petition was "filed"

on June 26, 2010, when Petitioner placed it into the mailing system at his prison. Doc.

1, p. 1. Absent equitable tolling, the petition is untimely.

 Section 2244(d) is subject to equitable tolling. Holland v. Florida, 560 U.S. ,

130 S.Ct. 2549, 2560, 177 L.Ed2d 130 (2010). "The burden of proving circumstances

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that justify the application of the equitable tolling doctrine rests squarely on the

petitioner. Mere conclusory allegations are insufficient to raise the issue of equitable

tolling." San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.), cert. denied, 132 S.Ct.

158 (2011).

For equitable tolling to apply, Petitioner must show "(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way." Pace v. DiGuglielmo, 544 U.S. 408, 418 and n. 8, 125 S.Ct. 1807, 1814 and n. 8,

161 L.Ed.2d 669 (2005) (citations omitted); Lawrence v. Florida, 549 U.S. 327, 336, 127

S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) (quoting Pace); Holland v. Florida, 130 S.Ct.

at 2562 and 2565. A negligent mistake made by a pro se petitioner does not give rise to

equitable tolling. Murphy v. United States, 634 F.3d 1303, 1306 (11th Cir. 2011). 

Indeed, a negligent mistake made by a petitioner's lawyer does not equitably toll the one

year period. Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 1085, 166

L.Ed.2d 924 (2007).4

Petitioner asserts that the petition for writ of habeas corpus and petition for

mandamus tolled the time under the statute. Doc. 6, pp. 2-3, citing cases. He also

asserts if this court "unexpectedly" finds that the mandamus petition did not toll the time,

then "consideration of legal confusion would come into play," as recognized in Lawrence

v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). Since Eleventh

Circuit Court case law is not unfavorable to [Petitioner] on the issues as to whether a

4

 In Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999), the court found

equitable tolling not justified for a § 2255 motion filed beyond the one year AEDPA

period, where counsel mailed the § 2255 motion by regular mail less than a week before

it was due, and though mail delay was beyond his control, the problem could have been

avoided. 177 F.3d at 1272.

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petition for writ of mandamus tolls under AEDPA, any legal confusion should result in a

legitimate basis for equitable tolling in this case." Id, p. 3. Lawrence did not recognize

confusion as a basis for equitable tolling, however; it found the law at the time "belie[d]

any clam to legal confusion," and that counsel's miscalculation of the deadline was

"simply not sufficient to warrant equitable tolling," noting there was no right to counsel in

the § 2254 proceeding. 549 U.S. at 336, 127 S.Ct. at 1085, citing Coleman v.

Thompson, 501 U.S. 722, 756-57, 111 S.Ct. 2546,115 L.Ed.2d 640 (1991).5 It may be

that Petitioner made a mistake, thinking that his pursuit of discovery before filing a Rule

3.850 motion would toll the AEDPA time, but his misunderstanding of the law is not a

basis for equitable tolling.

Certificate of Appealability

Section 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. § 2254 Rule 11(b).

I find no substantial showing of the denial of a constitutional right. § 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, I

recommend that the court deny a certificate of appealability in its final order.

5

 Coleman reiterated that attorney error could only constitute cause for a

procedural default if the error amounted to ineffective assistance of counsel, an

independent constitutional violation. 501 U.S. at 755, 111 S.Ct. at 2567. 

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

the court may direct the parties to submit arguments on whether a certificate should

issue." The parties shall make any argument as to whether a certificate should issue by

objections to this report and recommendation.

Conclusion

Accordingly, it is RECOMMENDED that Respondent's motion to dismiss, doc. 18,

be GRANTED, that this petition for writ of habeas corpus filed by Gary Thomas

pursuant to 28 U.S.C. § 2254, challenging his conviction for sexual battery upon a child

twelve years of age or older but less than eighteen years of age, by a person in familial

or custody authority, case number 2004 CF 309, in the Circuit Court of the Second

Judicial Circuit, in and for Gadsden County, Florida, be DISMISSED WITH PREJUDICE

as untimely filed, and that a certificate of appealability be DENIED pursuant to § 2254

Rule 11(a).

IN CHAMBERS at Tallahassee, Florida, on December 7, 2011.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case No. 4:10cv276-RH/WCS

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