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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BRYCE WESSELLS,

Petitioner,

vs. Case No. 3:10cv320/MCR/EMT

KENNETH S. TUCKER,

Respondent.

___________________________________/

REPORT AND RECOMMENDATION

This cause is before the court on Petitioner’s petition for writ of habeas corpus filed under

28 U.S.C. § 2254 (doc. 1). Respondent filed a motion to dismiss the petition as untimely, with

relevant portions of the state court record (doc. 31). Petitioner was provided an opportunity to

respond to the motion, but he declined to do so (see docs. 32, 37).

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 AND PROCEDURAL HISTORY

The procedural background of this case is established by the state court record (doc. 31,

Exhibits).1 Petitioner was charged in the Circuit Court in and for Escambia County, Florida, Case

Nos. 1994-CF-2099 1994-CF-2100, 1994-CF-2101, 1994-CF-2102, 1994-CF-2103, with violation

of community control (Case Nos. 1994-CF-2099, 2100, 2102, and 2103) and violation of probation

(Case No. 1994-CF-2101) (see Ex. B, docket sheets).2

 Petitioner pled guilty to the charges and was

1

 Hereinafter all citations to the state court record refer to the electronically filed exhibits to Respondent’s

answer (doc. 31). If a cited page has more than one page number, the court cites to the “Bates stamp” page number. 

2

 Petitioner was placed on community control and probation in each of those cases in 1994, pursuant to his

guilty plea to the charges in each case (Ex. B, docket sheets). In Case No. 1994-CF-2099, 1994-CF-2100, and 1994-CF2101, he was charged with one count of burglary of a structure (Count 1) and one count of grand theft (Count 2) (id.). 

In Case No. 1994-CF-2102, he was charged with one count of burglary of a structure (Count 1) and one count of petit

theft (Count 2) (id.). In Case No. 1994-CF-2103, he was charged with one count of burglary of a structure (Count 1)

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adjudicated guilty and sentenced on December 11, 1996, as a habitual felony offender to five

concurrent terms of thirty (30) years of imprisonment on Count 1 of each case (the burglary counts),

with pre-sentence credit of 417 days (Ex. B at 73–79). He was sentenced to concurrent terms of ten

(10) years of imprisonment on the grand theft counts, to run concurrently with the sentences on the

burglary counts, and time served on the petit theft and resisting arrest counts (id.). Petitioner did

not appeal the judgment (doc. 31 at 2).

On June 11, 1997, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850

of the Florida Rules of Criminal Procedure, wherein he claimed that his trial counsel failed to file

a notice of appeal (Ex. A at 1–7). The state circuit court summarily denied the motion (id. at 8–9). 

Petitioner appealed the decision to the Florida First District Court of Appeal (“First DCA”), Case

No. 1D97-2989, wherein he argued the circuit court should have construed his motion as a petition

for habeas corpus seeking a belated direct appeal (Ex. A at 10, Ex. D, Ex. F). The First DCA

construed the pleading as a petition for belated appeal and ordered an evidentiary hearing. See

Wessells v State, 737 So. 2d 1103 (Fla. 1st DCA 1998). On October 28, 1998, the First DCA denied

the petition for belated appeal, with the mandate issuing November 13, 1998 (Exs. I, J). Wessells

v. State, 728 So. 2d 212 (Fla. 1st DCA 1998) (Table). 

On August 12, 2009, Petitioner filed a Rule 3.850 motion (Ex. B at 1–29). The state circuit

court summarily denied the motion in an order rendered December 7, 2009 (id. at 69–71). Petitioner

appealed the decision to the First DCA, Case No. 1D10-0623 (id. at 93–94, Ex. E, Ex. K). The First

DCA affirmed the circuit court’s decision per curiam without written opinion on April 28, 2010,

with the mandate issuing July 23, 2010 (Exs. L, O). Wessells v. State, 38 So. 3d 775 (Fla. 1st DCA

2010) (Table).

Petitioner filed the instant habeas action on August 14, 2010 (doc. 1). He raises the

following claims:

GROUND ONE

NEWLY DISCOVERED EVIDENCE CONSISTING OF BAPTIST HOSPITAL SERVICE RECORDS

INDICATING THAT DEFENDANT WAS SIGNED IN AT 17:00 HOURS ON MAY 2, 1994 BY

AMBULANCE, AFTER BEING STRUCK IN THE HEAD WITH A METAL BASKET, KNOCKED

UNCONSCIOUS, WHILE USING CRACK COCAINE, ALCOHOL, AND THC, BEFORE BEING

STRUCK IN THE HEAD.

GROUND TWO

NEWLY DISCOVERED EVIDENCE CONSISTING OF BAPTIST HOSPITAL RECORDS AND

REPORTS, SHOWING DEFENSIVE WOUNDS ON DEFENDANT’S HANDS AND HEAD, DEMONSTRATING THE EXTENT OF THE BRUTAL BEATING DEFENDANT RECEIVED BY

and one count of resisting arrest without violence (Count 2) (id.).

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SHERIFF’S DEPUTIES, KICKING DEFENDANT MULTIPLE TIMES IN THE FRONTAL LOBE OF

THE HEAD, CAUSING TRAUMATIC BRAIN INJURY, RESULTING IN NEUROLOGICAL

DAMAGE, RENDERING HIM INCOMPETENT, AND UNABLE TO KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY, ENTER INTO A PLEA, VIOLATING BOTH STATE

AND FEDERAL CONSTITUTIONS, BY THE SUPPRESSION OF THESE REPORTS.

GROUND THREE

NEWLY DISCOVERED EVIDENCE CONSISTING OF ORGANIC BRAIN DAMAGE, AS A

RESULT OF THE BRUTAL BEATING ADMINISTERED BY ESCAMBIA COUNTY SHERIFF’S

OFFICERS MAY 2, 1994, RENDERING DEFENDANT’S PLEA CHANGE HEARING

INVOLUNTARILY, UNINTELLIGENTLY, AND UNKNOWINGLY HAD, IN VIOLATION OF

BOTH STATE AND FEDERAL CONSTITUTIONS.

GROUND FOUR

NEWLY DISCOVERED EVIDENCE CONSISTING OF WITNESSES PRESENT DURING THE

CONFESSION BY DEFENDANT TO INVESTIGATOR WALKER IN MAY OF 1994, SHOWING

REASONABLE GROUNDS THAT DEFENDANT WAS NOT MENTALLY COMPETENT TO

WAIVE HIS MIRANDA RIGHTS AND GIVE A CONFESSION WITH THE DAMAGE DONE TO

THE FRONTAL LOBE OF THE DEFENDANT’S BRAIN, WHICH RENDERS HIS PLEA

INVOLUNTARILY, UNKNOWINGLY, AND UNINTELLIGENTLY MADE, IN VIOLATION OF

BOTH STATE AND FEDERAL CONSTITUTIONS.

GROUND FIVE

NEWLY DISCOVERED EVIDENCE THAT DEFENSE COUNSEL KELLY RICHARDS RENDERED

INEFFECTIVE ASSISTANCE, CONTRARY TO BOTH STATE AND FEDERAL CONSTITUTIONS

IN THE FOLLOWING REGARDS: WHEN KELLY RICHARDS FAILED TO INVESTIGATE,

SECURE, DEPOSE, AND CALL FOR A HEARING, THREE KEY WITNESSES, DOCTOR

WESTAFER, PHYSICIAN COURCY, THE AMUSEMENT PARK EMPLOYEE, WHOSE

TESTIMONY WAS CRITICAL TO THE DEFENDANT’S DEFENSE, COUNSEL’S FAILURE TO

CALL, OR DEPOSE DEFENSE WITNESS DID PREJUDICE THE DEFENSE.

GROUND SIX

NEWLY DISCOVERED EVIDENCE THAT DEFENSE COUNSEL KELLY RICHARDS RENDERED

INEFFECTIVE ASSISTANCE, CONTRARY TO BOTH STATE AND FEDERAL CONSTITUTIONS

IN THE FOLLOWING REGARDS: WHEN KELLY RICHARDS MISADVISED DEFENDANT TO

TAKE A PLEA BECAUSE NO DEFENSE EXISTED, WHEN VOLUNTARY INTOXICATION, MENTAL DEFECT, MENTAL WEAKNESS, DIMINISHED CAPACITY, AND INCOMPETENCY

WERE ALL DEFENSES IN EXISTENCE IN 1994; THIS MISADVICE RENDERS DEFENDANT’S

PLEA INVOLUNTARY, UNKNOWING, AND UNINTELLIGENTLY MADE.

(doc. 1 at 4–16).

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:

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(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.

Section 2244(d)(1).

Respondent contends the appropriate statutory trigger for the federal limitations period in

this case is § 2244(d)(1)(A), the date on which the judgment of conviction became final by the

conclusion of direct appeal (doc. 31 at 4). Although Petitioner does not argue that another statutory

trigger applies, he labels each of his federal habeas claims as “Newly Discovered Evidence” (see

doc. 1 at 4–14); therefore, the undersigned will determine whether the appropriate statutory trigger

is § 2244(d)(1)(D), the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence. The alleged newly discovered evidence

underlying all of Petitioner’s claims is evidence of Petitioner’s mental and physical condition at the

time of his arrest for the original offenses in 1994 and his confession and guilty plea to those

offenses (id.). This evidence consists of Petitioner’s medical records and testimony from his two

treating physicians and a witness to Petitioner’s arrest (an amusement park employee) (see doc. 1,

exhibits). However, Petitioner failed to show that his own medical records and the arrest reports,

which disclosed the name and telephone number of the amusement park employee (see id. at 19–20),

were unobtainable with due diligence prior to entry of the final judgment in the VOP cases. Further,

this evidence relates to Petitioner’s original convictions in 1994, not the judgment and sentence in

the VOP’s, which is the judgment challenged in the instant habeas proceeding (see doc. 1 at 1). 

Therefore, the undersigned concludes § 2244(d)(1)(D) is not applicable. Petitioner does not allege

grounds for applying either of the statutory triggers for the limitations period set forth in

§ 2244(d)(1)(B) or (C); therefore, the undersigned concludes the federal limitation period began to

run on the date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review, pursuant to § 2244(d)(1)(A). 

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The judgment and sentence in Petitioner’s case was rendered December 11, 1996. That

judgment became final thirty (30) days later, on January 11, 1997.3, 4 See Bridges v. Johnson, 284

F.3d 1201, 1202 (11th Cir. 2002) (holding that where 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); Hampton v.

State, 837 So. 2d 611 (Fla. 5th DCA 2003) (when defendant did not directly appeal his conviction,

the judgment and sentence became final 30 days after they were rendered); Davis v. State, 693 So.

2d 700 (Fla. 2d DCA 1997) (judgment and sentence become final when 30-day period to file notice

of appeal expires); Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988) (if defendant does not appeal

the conviction or sentence, judgment becomes final when the 30-day period for filing direct appeal

expires). Petitioner had one year from that date, or until January 11, 1998, to file his § 2254 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 did not file his federal petition on or before that date; therefore, it is untimely unless

tolling principles apply and render it timely.

Section 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.

28 U.S.C. § 2244(d)(2). In the instant case, Petitioner filed a tolling motion on June 11, 1997, after

150 days of the federal limitations period expired. The limitations period was tolled until November

13, 1998, upon issuance of the First DCA’s mandate. The federal limitations period expired 215

days later, on June 17, 1999. Any post-conviction applications filed by Petitioner after that date did

not qualify for statutory tolling. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). 

3

 According to the Florida rules governing appeal proceedings in criminal cases, Petitioner had thirty (30) days

following rendition of the order imposing sentence to file a notice of appeal. In the instant case, the written order

imposing the judgment and sentence was rendered on December 11, 1996. See Fla. R. App. P. 9.020(h) (order is

rendered when signed, written order is filed with clerk of lower tribunal). The day the order was rendered is excluded

from the 30-day calculation; therefore, the period for seeking an appeal began to run on December 12, 1996. See Fla.

R. App. P. 9.420(f). Thirty (30) days from that date was January 11, 1997.

4

 The Supreme Court held in Jiminez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681, 172 L. Ed. 2d 475 (2009)

that “where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral

review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of

§ 2244(d)(1)(A).” 555 U.S. at 121. In that limited circumstance, the judgment becomes final at the conclusion of the

out-of-time direct appeal or expiration of the time for seeking review of that appeal. Id. In the instant case, Petitioner

was not granted the right to file an out-of-time direct appeal.

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Petitioner filed the instant federal petition on August 14, 2010, more that ten years after the

federal limitations period expired (see doc. 1). Therefore, the instant petition was untimely.

Petitioner has not shown that any tolling principles apply, or that he is entitled to federal review

under any other exception to the time bar.5 Therefore, the § 2254 petition should be dismissed with

prejudice as time-barred.

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. 31) be GRANTED.

2. That the amended petition for writ of habeas corpus (doc. 1) be DISMISSED with

prejudice as untimely. 

3. That a certificate of appealability be DENIED.

5

 Although Petitioner states he did not receive his medical records until May of 2009 (see doc. 1 at 5), he does

not allege the existence of any extraordinary circumstance that prevented him from filing his federal petition within the

statutory limitations period; nor has he shown he was diligently pursuing his rights during that time; therefore, he has

not shown he is entitled to equitable tolling of the limitations period. See Pace . DiGuglielmo, 544 U.S. 408, 418, 125

S. Ct. 1807, 161 L. Ed. 2d 669 (2005) (“Generally, a litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood

in his way.”). Further, although he alleges he has been in a “continued state of incompetency” (see doc. 35 at 1), he has

not submitted any evidence in support of his claim of mental incapacity, nor has he alleged facts establishing a causal

connection between his alleged mental incapacity and his ability to file a timely § 2254 petition. See Lawrence v.

Florida, 421 F.3d 1221, 1226–27 (11th Cir. 2005) (petitioner’s contentions that his full scale IQ was 81 and he had

“suffered from mental impairments his entire life” were insufficient to justify equitable tolling, because they did not

establish a causal connection between petitioner’s alleged mental incapacity and his ability to file a timely petition).

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At Pensacola, Florida, this 30th day of November 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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