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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

HENRY L. BENNETT,

Petitioner,

v. Case No. 3:10cv118/LC/MD

WALTER A. MCNEIL, 

Respondent.

______________________________________________________________________

REPORT AND RECOMMENDATION

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

U.S.C. § 2254. (Doc. 3). Petitioner has also filed a “Motion to Hold in Abeyance

Pending State Courts [sic] Resolution of Claims.” (Doc. 4). Respondent has

responded in opposition to a stay, and has moved to dismiss the petition with

prejudice as time-barred, or, in the alternative, to dismiss the petition without

prejudice for petitioner’s failure to exhaust any of his claims. (Doc. 9). Petitioner

has responded in opposition to dismissal. (Doc. 12). The 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, 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.
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BACKGROUND AND PROCEDURAL HISTORY

On August 9, 2006, petitioner was convicted upon jury verdict of Attempted

Sexual Battery on a Victim Less Than 12 Years of Age (Count 1), Sexual Battery of

a Victim Less Than 12 Years of Age (Count 2), and two counts of Lewd and

Lascivious Molestation (Counts 3 and 4), in the Circuit Court of Escambia County,

Florida, case number 05-3403. (Doc. 9, Attach. 2, pp. 35-42, 51-59 in ECF; Ex. C, pp.

17-24, 33-41). Petitioner was sentenced to life imprisonment on Count 2, concurrent 1

with 225 months of imprisonment on Count 1, concurrent with two concurrent 5-year

terms of imprisonment on Counts 3 and 4. (Id.). His convictions and sentences

were affirmed on direct appeal in a written opinion issued December 31, 2007. 

Bennett v. State, 971 So.2d 196 (Fla. 1st DCA 2007) (copy at Ex. H). 

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While petitioner’s direct appeal was pending, on January 3, 2007, petitioner

filed a Motion to Correct Sentencing Error Under Rule 3.800(b)(2), Florida Rules of

Criminal Procedure. (Ex. E). The motion was denied on January 25, 2007. (Id.).

On April 7, 2009, petitioner filed a state petition for writ of habeas corpus in

the Florida First District Court of Appeal (“First DCA”), alleging his appellate counsel

was ineffective. (Ex. J). The petition was per curiam denied on the merits on April

23, 2009. Bennett v. State, 10 So.3d 1119 (Fla. 1st DCA 2009) (Table) (copy at Ex. K). 

Petitioner timely moved for clarification and for a written opinion. (Ex. L). The

motion was denied on June 2, 2009. (Ex. M). 

On August 10, 2009, petitioner filed a petition for writ of mandamus in the trial

court, seeking to compel the state public defender’s office to provide copies of all

witness deposition transcripts. (Doc. 1, Ex. B). The public defender responded on

Hereafter, all references to exhibits will be to those provided at Doc. 9, unless otherwise

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noted. References to page numbers “in ECF” reflect the page numbers as enumerated in the court’s

Electronic Case Filing system. Each reference will be followed by the page number of the exhibit filed

in paper form.

Petitioner raised two claims on direct appeal: (1) “The Court Erred in Finding the Child

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Complainant Competent to Testify,” and (2) “The Court Erred in Imposing Sentence.” (Doc. 9, Ex. F).

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December 10, 2009, by providing all deposition transcripts in its file. (Id., Ex. E).

Accordingly, the mandamus petition was denied on January 12, 2010. (Doc. 9, Ex.

A). 

On August 31, 2009, petitioner filed a Motion for Substitution and

Disqualification of Judge in the trial court. (Ex. O). The motion was denied on

September 22, 2009. (Id.). Petitioner’s appeal of the order was dismissed on

January 6, 2010. (Ex. P).

Also on August 31, 2009, petitioner filed a motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. (Ex. Q). On September 22,

2009, the court entered an order striking the motion as facially insufficient, granting

petitioner leave to file an amended motion. (Ex. R). Petitioner filed an amended Rule

3.850 motion on October 20, 2009. (Ex. S). That motion is still pending in the trial

court. 

On May 21, 2010, petitioner filed the instant federal habeas petition. (Doc. 3). 

The petition presents thirteen grounds for relief – the same claims pending in

petitioner’s Rule 3.850 proceeding. Contemporaneously with this filing, petitioner 3

filed a motion to hold this case in abeyance pending resolution of the state court

proceeding. (Doc. 4).

Respondent moves to dismiss the petition with prejudice as time-barred. 

(Doc. 9, pp. 4-9). In the alternative, he moves to dismiss the petition without

prejudice for lack of exhaustion, arguing further that petitioner is not entitled to a

stay. (Id., pp. 9- 11). 

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

Petitioner has removed one claim – that involving counsel’s failure to object to an alleged

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sentencing error.

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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

(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 State-created

impediment to his filing existed, that he bases his claims on a right newly 4

Although petitioner argues that the state public defender’s conduct – failing to timely provide

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petitioner with witness deposition transcripts after conclusion of direct appeal – constitutes a Statecreated impediment cognizable under § 2244(d)(1)(B), that argument is without merit. The Eleventh

Circuit has held that the actions of a petitioner’s attorney is not the type of State impediment

envisioned in § 2244(d)(1)(B), even if the attorney was appointed. Lawrence v. Florida, 421 F.3d 1221,

1226 (11 Cir. 2005) (rejecting petitioner's argument that the State impeded his timely filing of his §

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2254 petition by providing him an incompetent attorney through the Florida counsel registry system);

Webster v. Secretary for Dep’t of Corrections, No. 07-12020, 2010 WL 2595556, at *2-*3 (11 Cir. June

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30, 2010) (rejecting petitioner’s argument that the State impeded his timely filing of his § 2254 due to

his attorney’s failure to inform him of the decision on his direct appeal and his “abandonment” of

petitioner); Scott v. Duffy, 372 Fed. Appx. 61, 63 (11 Cir. Apr. 5, 2010) (holding that attorney’s failure

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to file a direct appeal as directed by petitioner is not the type of State impediment envisioned in §

2244(d)(1)(B)).

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recognized by the United States Supreme Court, or that the facts supporting his

claims could not have been discovered through the exercise of due diligence before

his conviction became final. Thus, the statute of limitations must be measured from

the remaining trigger, which is the date on which his convictions became final. See

28 U.S.C. § 2244(d)(1). 

The First DCA affirmed petitioner’s convictions and sentences on December

31, 2007. Petitioner did not move for rehearing in the First DCA, nor did he seek

review of his conviction in the Florida Supreme Court or in the United States

Supreme Court. Respondent contends that petitioner’s conviction became final for

purposes of § 2244(d)(1)(A) on January 30, 2008, when the 30-day period for seeking

discretionary review in the Florida Supreme Court expired. (Doc. 9, pp. 5-6). In

support of this contention, respondent argues that because petitioner received a

written opinion, he was entitled to seek review of his conviction in the Supreme

Court of Florida. (Id., p. 5 (citing Fla. R. App. P. 9.120)). Because he failed to do so,

he was not entitled to petition the Supreme Court of the United States for a writ of

certiorari, and therefore is not entitled to the 90-day period for filing such a petition. 

(Doc. 9, pp. 5-6 (citing Pugh v. Smith, 465 F.3d 1295, 1299 (11 Cir. 2006) (holding th

that a habeas petitioner’s Georgia state court convictions became “final” for

purposes of § 2244(d)(1)(A), ten days after the Georgia Court of Appeals affirmed the

convictions rather than ninety days after the affirmance, where the petitioner could

have sought review during the ten-day period in the Georgia Supreme Court, but

failed to do so and, therefore, was not entitled to seek review in the United States

Supreme Court))). 

Florida Rule of Appellate Procedure 9.030(a)(2) provides six circumstances in

which the discretionary jurisdiction of the Florida Supreme Court may be sought to

review a decision of a district court of appeal – when the decision:

(i) expressly declare[s] valid a state statute;

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(ii) expressly construe[s] a provision of the state or federal

constitution;

(iii) expressly affect[s] a class of constitutional or state officers;

(iv) expressly and directly conflict[s] with a decision of another

district court of appeal or of the supreme court on the same question

of law;

(v) pass[es] upon a question certified to be of great public

importance;

(vi) [is] certified to be in direct conflict with decisions of other

district courts of appeal.

Fla. R. App. P. 9.030(a)(2)(I)-(vi).

Respondent does not state which provision applied to petitioner’s case, and

a review of the First DCA’s opinion does not indicate that any applied. But the court

need not decide that issue, because even assuming to petitioner’s benefit that

petitioner was not entitled to seek discretionary review in the Florida Supreme Court

and therefore was entitled to the 90-day period in which to seek certiorari in the

United States Supreme Court, the instant federal habeas petition is still untimely. 

Giving petitioner those 90 days, his convictions became final on March 31, 2008. 

Absent anytolling, the federal habeas limitations period expired on April 1, 2009, one

year from the day after petitioner’s judgment became final. See McCloud v. Hooks,

560 F.3d 1223, 1229 (11 Cir. 2009) (calculating expiration of limitations period as th

one year from the date after the judgment became “final” under § 2244(d)(1));

Johnson v. Florida Dep’t of Corrections, 513 F.3d 1328, 1331 (11 Cir. 2008) (same). th

Petitioner is not entitled to any statutory tolling of the limitations period under

§ 2244(d)(2), because he had no properly filed applications for state postconviction

or other collateral review pending during the critical period between March 31, 2008

and April 1, 2009. Therefore, his time for seeking federal habeas review in this court

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expired on April 1, 2009. The instant petition, which was filed on May 21, 2010, is 5

untimely.

The next question is whether petitioner is entitled to equitable tolling. 

Petitioner requests that this court equitably toll the period between March of 2008,

and December 10, 2009, because during that time his trial attorney (the state public

defender’s office) failed to provide him with pre-trial deposition transcripts of

witnesses, despite petitioner’s repeated requests. Petitioner argues that this

precluded him from filing a Rule 3.850 motion with the state court in time to toll the

AEDPA limitations period. (Docs. 1, 12). 

The United States Supreme Court has held that § 2244’s limitations period is

subject to equitable tolling in appropriate cases. Holland v. Florida, — U.S. —, 130

S.Ct. 2549, 2560, 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 (quotations omitted). It is the petitioner’s burden to establish his

entitlement to equitable tolling. Id., see also Pace v. Diguglielmo, 544 U.S. 408, 418,

125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005). 

Petitioner argues that he has satisfied his burden by showing that his

attorney’s failure to provide the transcripts was an extraordinary circumstance over

which he had no control. (Doc. 1, pp. 3-4). Even if this court were to accept

petitioner’s theory, he would not be entitled to relief because he has not established

the requisite diligence.

Petitioner states in only general terms that “[f]rom March of 2008 until August,

2009 [he] sought records from Public Defender’s Office with diligence.” (Doc. 1, p.

Although petitioner filed several motions and petitions after April 1, 2009, they did not trigger

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the tolling benefit of § 2244(d)(2), because they were filed after the limitations period expired. Webster

v. Moore, 199 F.3d 1256, 1269 (11 Cir. 2000) (“A state-court petition . . . that is filed following the

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expiration of the limitations period cannot toll that period because there is no period remaining to be

tolled.”).

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2). But he provides no specific description of the attempts he made, how many he

made, or when he made them. His state petition for writ of mandamus filed on

August 10, 2009 alleged that petitioner sought the records “[s]ince March of 2008,”

and referenced an attachment to support that contention. (Doc. 1, Ex. B, p. 2). 

Petitioner has not provided that attachment or indicated what it contained. The court

has conducted its own extensive review of the record. The only document

evidencing petitioner’s attempt to obtain the transcripts from his trial counsel is a

letter dated July 12, 2009, which petitioner attached to his amended Rule 3.850

motion. (Doc. 9, Attach. 12, pp. 71-72 in ECF; Ex. S, Am. Mot. for Postconviction

Relief at Exhibit M).

Thus, even if the court credits petitioner with having made an attempt to

obtain the transcripts in March of 2008, the record establishes that, at most, he made

that single attempt prior to expiration of the federal limitations period on April 1,

2009. Petitioner does not claim, nor does he document, any additional attempts to

obtain the records prior to April 1, 2009. His July 12, 2009 letter to his attorney and

his August 10, 2009 petition for writ of mandamus were not made until well after the

limitations period expired. 

But even if petitioner could show he made more attempts than are established

in the record, his claim of diligence still fails because the record demonstrates that

he could have filed, and did file, his Rule 3.850 motion without the deposition

transcripts. Petitioner’s amended Rule 3.850 motion was filed on October 20, 2009. 

(Doc. 9, Attach. 11, p. 41 in ECF; Ex. S, Am. Mot. for Postconviction Relief at 17). 

Petitioner did not receive the deposition transcripts until December 10, 2009. (Doc.

1, Ex. E, Public Defender’s Response to Order to Show Cause). The amended Rule

3.850 motion contained fourteen claims, three of which related to witness

depositions: Ground 4 of the Rule 3.850 motion claimed ineffective assistance of

counsel based on counsel’s failure to impeach the child victim with prior

inconsistent statements made in her deposition. (Doc. 9, Attach. 11, pp. 19, 21 in

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ECF; Ex. S, Am. Mot. for Postconviction Relief, Ground 4). Ground 7 of the motion

claimed ineffective assistance for counsel’s failure to depose two potential

witnesses: Rev. Clinton and Mrs. Alison Powell. This is obviously a claim that did

not involve a deposition transcript. (Doc. 3, Pet. at 7; see also Doc. 9, Attach. 11, pp.

26-27 in ECF; Ex. S, Am. Mot. for Postconviction Relief, Ground 7). And Ground 14

of the Rule 3.850 motion claimed that counsel was ineffective for failing to provide

the deposition transcripts petitioner had been requesting. In connection with this

last claim, petitioner asserted, generally, that counsel’s conduct “prejudice[d] his

ability to prosecute certain claims against [counsel],” (Doc. 3, Pet. at 10; see also

Doc. 9, Attach. 11, pp. 36, 39 in ECF and Attach. 12, p. 21-22 in ECF; Ex. S, Am. Mot.

for Postconviction Relief, Ground 14 and Mem. of Law at 45-46). No where did

petitioner allege that he needed to transcripts in order to file his claims. Further, 

even after petitioner received the deposition transcripts two months later in

December of 2009, he did not amend his Rule 3.850 motion to include any additional

claims or allegations based on those transcripts. In light of this record, this court

cannot say that the public defender’s failure to provide petitioner with the witness

deposition transcripts prevented petitioner from filing his motion for postconviction

relief, or his present habeas petition, prior to expiration of § 2244(d)’s limitations

period. 

In sum, contrary to petitioner’s general and unsupported assertions that he

diligently pursued his rights, and that he was prevented from timely filing by not

having the deposition transcripts, because they were “critical records necessary to

file [his] postconviction motion” (doc. 12, p. 2), the record demonstrates that

petitioner could have, and did, file his motion without those documents. Petitioner

has not met his burden of demonstrating his entitlement to equitable tolling. See,

e.g., Pace, 544 U.S. at 418-19, 125 S.Ct. at 1814-15 (holding that habeas petitioner

was not entitled to equitable tolling, where the claims asserted in his state

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postconviction relief petition were available to him well before he filed the

postconviction petition); Powe v. Culliver, 205 Fed. Appx. 729, 734-35 (11 Cir. Sept. th

19, 2006) (affirming district court’s finding that petitioner failed to establish diligence

to support application of equitable tolling based on his attorneys’ failure to provide

him with a copy of his trial transcript: petitioner’s attempt to obtain his transcript

consisted of writing only four letters – three to his attorneys and one to the trial

judge; (2) petitioner did not seek further help from the trial court, despite his

knowledge of the impending deadline; and (3) petitioner could have filed his motion

for postconviction relief without his transcript, explaining to the court that he was

unable to obtain the transcript from his attorneys); Neal v. McNeil, No. 6

3:09cv23/MCR/EMT, 2010 WL 298294, at *7 (N.D. Fla. Jan. 15 2010) (concluding that

habeas petitioner failed to show that his appellate counsel’s failure to provide a copy

of his trial transcript prevented him from filing a Rule 3.850 motion. The Rule does

not require the attachment of transcripts, and despite not having the transcript, the

petitioner filed two Rule 3.850 motions.). 

CONCLUSION

The instant petition for writ of habeas corpus is untimely. Petitioner has not

established entitlement to equitable tolling or any other exception to the limitations

period. Therefore, the petition should be dismissed. 

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

The undersigned cites Powe v. Culliver only as persuasive authority and recognizes that the

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opinion is not considered binding precedent. See 11th Cir. R. 36-2.

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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 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, it is recommended that the 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.” 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 with prejudice (doc. 9) be GRANTED,

and the petition for writ of habeas corpus (doc. 3) challenging the convictions and

sentences in State of Florida v. Henry L. Bennett, Jr., in the Circuit Court of

Escambia County, Florida, case number 05-3403, be DISMISSED WITH PREJUDICE.

2. That petitioner’s motion for stay (doc. 4) be DENIED.

3. That the clerk be directed to close the file.

4. That a certificate of appealability be DENIED.

At Pensacola, Florida this 8 day of November, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. 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 any objections shall be served upon any 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 (11 Cir. 1988). th

Case No: 3:10cv118/LC/MD