IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

TOBIAS L. ROLLE,

Petitioner,

vs. Case No. 4:10cv152-MP/CAS

STATE OF FLORIDA, 

Respondent.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2254 PETITION

Pending is a second amended petition for writ of habeas corpus filed pursuant to

28 U.S.C. § 2254 by Petitioner Tobias L. Rolle, proceeding pro se. Doc. 12. On

December 2, 2011, this Court entered a Report and Recommendation that

Respondent’s motion to dismiss, Doc. 17, be granted and the § 2254 petition be

dismissed with prejudice as untimely filed. Doc. 19. Thereafter, Petitioner filed

objections to that Report and Recommendation, Doc. 19, a motion to expand the record

to include documents attached to his objections, Doc. 21, and a motion to stay his

§ 2254 proceeding, Doc. 23. By order dated August 9, 2012, the Chief United States

District Judge, M. Casey Rodgers, rejected the Report and Recommendation and
Page 2 of 18

remanded the matter to the undersigned magistrate judge for consideration of whether

(1) Petitioner’s arguments raised in the objections and documents attached thereto

justify equitable tolling in this case and (2) a stay and abeyance is appropriate. Doc. 25. 

After careful consideration of all issues raised, the undersigned has determined

that no evidentiary or emergency hearing is required for disposition of this matter. See

Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons stated herein,

Petitioner is not entitled to equitable tolling or a stay of this proceeding. The pleadings

and attachments before the Court show that Petitioner is not entitled to federal habeas

relief, and the § 2254 petition should be dismissed as untimely. 

Procedural History

Petitioner Tobias L. Rolle, proceeding pro se, filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 on April 21, 2010. Doc. 1. This Court twice

directed him to file an amended petition. Docs. 5 and 9. On August 6, 2010, Petitioner

filed a motion for a stay, asserting that all of his personal legal material had been

destroyed. Doc. 10. In the order denying that motion, this Court directed Petitioner to

file a second amended petition, as explained therein and in the prior two orders. Doc.

11. On September 29, 2010, Petitioner filed a second amended § 2254 petition. Doc.

12. Thereafter, this Court directed Respondent to file an answer, motion, or other

response. Doc. 13.

On August 1, 2011, Respondent filed a motion to dismiss the § 2254 petition as

untimely. Doc. 17. Petitioner did not file a response to that motion. See Doc. 19 at 2. 

Case No. 4:10cv152-MP/CAS
Page 3 of 18

On December 2, 2011, this Court entered a Report and Recommendation that

Respondent’s motion to dismiss be granted and the § 2254 petition be dismissed with

prejudice as untimely filed. Doc. 19. In particular, this Court made the following

findings:

Petitioner challenges his convictions for second degree murder with a

firearm and two counts of attempted first degree murder with a firearm,

case number 2000-CF-4064, in the Circuit Court of the Second Judicial

Circuit, in and for Leon County Florida. . . . 

For the sake of simplicity, I will assume, as did Respondent . . . that

the initial [§ 2254] petition was “filed” on April 21, 2010, when Petitioner

certified that he had placed it in the mailing system at his prison.[]

There is a one-year limitations period for filing a § 2254 petition

[pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA)]. 

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. . . . 

Respondent sets forth the history of Petitioner’s state court

litigation. Petitioner’s amended sentence dated October 25, 2006, was

affirmed on direct appeal on May 8, 2008. Ex. QQ. For this Court’s

purposes, . . . [t]he one-year AEDPA period commenced 90 days later, on

August 6, 2008, because Petitioner did not seek certiorari in the United

States Supreme Court.

The limitations period is tolled for the time during which a “properly

filed” application for relief is pending in state court. § 2244(d)(2). On

September 30, 2008, Petitioner filed a petition for writ of habeas corpus in

the First District Court of Appeal, claiming ineffective assistance of

appellate counsel. Ex. XX. By this time, 55 days of the AEDPA one-year

period had elapsed, and Petitioner had 310 days remaining. This petition

tolled the time until October 27, 2008, when the First District Court of

Appeal denied the petition. Ex. ZZ. The period began to run again on

October 28, 2008. Absent further tolling, it ended 310 days later, on

September 2, 2009.

On about April 9, 2009, Petitioner filed a second petition for writ of

habeas corpus in the First District Court of Appeal, claiming ineffective

assistance of appellate counsel. Ex. BBB. This was denied on April 29,

Case No. 4:10cv152-MP/CAS
Page 4 of 18

2009, citing FLA. R. APP. P. 9.141(c)(4)(B) and 9.141(c)(5)(C). Ex. CCC. 

Respondent argues that this 20 day period of potential tolling does not

count because the appellate court cited these procedural rules and thus

the petition was not "properly filed." Doc. 17, pp. 8-10. Respondent is

correct. Gorby v. McNeil, 530 F.3d 1363, 13666-67 [sic] (11th Cir. 2008),

cert. denied, 129 S.Ct. 1592 (2009) (when post conviction application is

untimely under state law it is not properly filed, and when a state court

finds a motion untimely "that is the end of the matter"); Sweet v. Sec'y,

Dep't of Corr., 467 F.3d 1311, 1317-18 (11th Cir. 2006), cert. denied, 550

U.S. 922 (2007); Allen v. Siebert, 552 U.S. 3, 4, 128 S.Ct. 2, 7, 169

L.Ed.2d 329 (2007).

Thus, the AEDPA one-year period continued to run from October

28, 2010 [sic], without tolling, and ended on September 2, 2009. 

Petitioner did [not] file[] this § 2254 petition until April 21, 2010. There is

no argument for equitable tolling. Therefore, the petition is untimely.

Doc. 19 (footnotes omitted).

On December 19, 2011, Petitioner filed objections to the Report and

Recommendation. Doc. 20. In his objections, Petitioner asserted a claim of equitable

tolling “due to the fact that some extraordinary circumstance stood in his way.” Id. at 2. 

In particular, Petitioner asserts “professional misconduct resulted in his untimely filing”

of the § 2254 petition. Id. Petitioner cites Holland v. Florida, 560 U.S. –, 130 S.Ct. 2549

(2010). Id. Petitioner explains that Dr. Paul Luskin, J.D., misled Petitioner “that the one

year limitation period for filing his § 2254 petition expired on April 26th, 2010. . . [w]ell

over 200 days beyond the date on which the limitations period expired.” Id. at 3. 

Petitioner states that “Petitioner made several attempts to put Dr. Luskin on notice that

the limitation period actually expired on or about September 5, 2009” and references

Exhibit B as well as several other attached exhibits, to support his assertions. Id. at 3-4. 

Petitioner also filed a motion seeking to expand the record with these exhibits. Doc. 21. 

Respondent does not appear to object to this motion to expand the record, see Doc. 22,

Case No. 4:10cv152-MP/CAS
Page 5 of 18

and, by separate order, this Court will grant Petitioner’s motion and accept Petitioner’s

exhibits.

In his objections, Petitioner also takes issue with the findings in the Report and

Recommendation concerning a habeas corpus petition filed in the First DCA on April 9,

2009, and denied April 29, 2009, by that court. Doc. 20 at 5. Petitioner challenges the

Magistrate Judge’s conclusion that he is not entitled to a 20-day period of tolling is

erroneous and contrary to the holding in Artuz v. Bennett, 531 U.S. 4 (2000). Id. at 5-6. 

Petitioner asserts his state court habeas petition was “properly filed” under 28 U.S.C.

§ 2244(d)(2) and he is entitled to 20 days of tolling. Id. at 6.

Finally, Petitioner objects to the recommendation that a certificate of appealability

be denied. Id. at 6-7. Petitioner asserts that a COA would be necessary if this Court

upholds the Report and Recommendation findings. Id. at 7. In particular, Petitioner

asserts that “reasonable jurists would find a conclusion denying Petitioner’s claim that

he’s entitled to equitable tolling . . . due to professional misconduct and the specific

facts of this case, to be debatable” and would also find debatable “a conclusion finding

Petitioner’s state habeas corpus petition was not ‘properly filed.’” Id. 

On January 4, 2012, Respondent filed a response to Petitioner’s objections. 

Doc. 22. Respondent asserts the substance of Petitioner’s legal objections are amply

addressed by Respondent’s previous filings in this case. Id. at 1. Respondent further

argues that Petitioner is not entitled to equitable tolling “based on the representations of

a disbarred former attorney who may be engaging in the unauthorized practice of law.” 

Id. at 2-3. 

Case No. 4:10cv152-MP/CAS
Page 6 of 18

Finally, on February 9, 2012, Petitioner filed a motion for a stay. Doc. 23. In this

motion, Petitioner requests this Court hold his § 2254 petition in abeyance because,

after he began this proceeding, he “discovered a previously unknown eyewitness, Andre

Robinson, who can provide exculpatory evidence.” Doc. 23 at 2. Respondent has not

filed a response to this motion.

Analysis

(1) Equitable Tolling

In Holland, the U.S. Supreme Court held that the limitations period in § 2244(d)

“is subject to equitable tolling in appropriate cases.” 130 S.Ct. at 2560. Further, that

Court “previously made clear that 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

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In Holland, the “extraordinary

circumstances” involved “at attorney’s failure to satisfy professional standards of care.” 

Holland, 130 S.Ct. at 2562. The Eleventh Circuit in Holland held that such

circumstances, “even attorney conduct that is ‘grossly negligent’ can never warrant

tolling absent ‘bad faith, dishonesty, divided loyalty, mental impairment or so forth on

the lawyer’s part.’” Id. at 2563 (quoting Holland v. Florida, 539 F.3d 1334, 1339 (11th

Cir. 2008)). The U.S. Supreme Court determined that standard “is too rigid” and

explained: “That rule is difficult to reconcile with more general equitable principles in that

it fails to recognize that, at least sometimes, professional misconduct that fails to meet

the Eleventh Circuit’s standard could nonetheless amount to egregious behavior and

create an extraordinary circumstance that warrants equitable tolling.” Id. The Court

Case No. 4:10cv152-MP/CAS
Page 7 of 18

acknowledged that it had “previously held that ‘a garden variety claim of excusable

neglect,’ . . . such as a simple ‘miscalculation’ that leads a lawyer to miss a filing

deadline . . . does not warrant equitable tolling.” Id. at 2564 (quoting Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990), and Lawrence v. Florida, 549 U.S. 327, 336

(2007)). The Court distinguished the circumstances in Holland, however, explaining the

case does not involve “a ‘garden variety claim’ of attorney negligence” but, rather “far

more serious instances of attorney misconduct.” Id. The Court explained that “although

the circumstances of a case must be ‘extraordinary’ before equitable tolling can be

applied, we hold that such circumstances are not limited to those that satisfy the test

that the Court of Appeals used in this case.” Id. The Court reviewed the record facts in

the Holland case and explained:

The record facts . . . suggest that this case may well be an

“extraordinary” instance in which petitioner’s attorney’s conduct

constituted far more than “garden variety” or “excusable neglect.” To be

sure, Collins [Holland’s attorney] failed to file Holland’s petition on time

and appears to have been unaware of the date on which the limitations

period expired – two facts that, alone might suggest simple negligence. 

But, in these circumstances, the record facts we have elucidated suggest

that the failure amounted to more: Here, Collins failed to file Holland’s

federal petition on time despite Holland’s many letters that repeatedly

emphasized the importance of his doing so. Collins apparently did not do

the research necessary to find out the proper filing date, despite Holland’s

letters that went so far as to identify the applicable legal rules. Collins

failed to inform Holland in a timely manner about the crucial fact that the

Florida Supreme Court had decided his case, again despite Holland’s

many pleas for that information. And Collins failed to communicate with

his client over a period of years, despite various pleas from Holland that

Collins respond to his letters.

Id. at 2564. The Court referred to an amicus brief and noted that “[a] group of teachers

of legal ethics tells us that these various failure violated fundamental canons of

professional responsibility” and, in this case, “the failures seriously prejudiced a client

Case No. 4:10cv152-MP/CAS
Page 8 of 18

who thereby lost what was likely his single opportunity for federal habeas review of the

lawfulness of his imprisonment and of his death sentence.” Id. at 2564-65. The Court

did not reverse the case outright, however, because the district court had “rested its

ruling not on a lack of extraordinary circumstances, but rather on a lack of diligence.” 

Id. at 2565. The Court indicated that conclusion was incorrect:

The diligence required for equitable tolling purposes is “‘reasonable

diligence,’” . . . not “‘maximum feasible diligence,’” . . . . Here, Holland not

only wrote his attorney numerous letters seeking crucial information and

providing direction; he also repeatedly contacted the state courts, their

clerks, and the Florida State Bar Association in an effort to have Collins –

the central impediment to the pursuit of his legal remedy – removed from

his case. And, the very day that Holland discovered that his AEDPA clock

had expired due to Collins’ failings, Holland prepared his own habeas

petition pro se and promptly filed it with the District Court.

Id. Because “no lower court has yet considered in detail the facts of this case to

determine whether they indeed constitute extraordinary circumstances sufficient to

warrant equitable relief,” the Court reversed the judgment and remanded the case for

further proceedings. Id.

In this case, Petitioner relies on Holland to support his assertion of equitable

tolling. In particular, Petitioner asserts that Dr. Paul Luskin, J.D., misled Petitioner “that

the one year limitation period for filing his § 2254 petition expired on April 26th, 2010. . .

[w]ell over 200 days beyond the date on which the limitations period expired.” Doc. 20

at 3. Petitioner asserts that he “made several attempts to put Dr. Luskin on notice that

the limitation period actually expire on or about September 5, 2009.” Id. Petitioner

references Exhibit B, attached to his pleading, which is a letter date-stamped July 22,

2009, from Petitioner to Dr. Luskin, in which Petitioner states the deadline for his § 2254

is September 5, 2009, by his calculation. Doc. 20 Ex. B. In his objections, Petitioner

Case No. 4:10cv152-MP/CAS
Page 9 of 18

further asserts, “Despite the letters from Petitioner and phone calls from Petitioner’s

family (Ex. F), that emphasized the concerns and the importance of Dr. Luskin having

Petitioner’s federal petition prepared and in Petitioner’s possession so he can he can

timely . . . file it, combined with Petitioner’s identifying the applicable authorities and

legal rules, Dr. Luskin refused to adhere Petitioner’s pleas and was adamant that

Petitioner’s calculations was incorrect and the one year limitation period in this case

actually expired on April 26th, 2010. (Ex. C).” Doc. 20 at 3-4. Petitioner states that he

“gave in to Dr. Luskin’s misleading statements” because Dr. Luskin is a former bar

member and “is currently a certified paralegal, has a Juris Doctorate Degree, is active

member of Florida Legal Support Association, and has well over a decade of experience

in federal habeas corpus practice (Ex. G), while Petitioner is [a] layman in federal

habeas corpus practice.” Id. at 4. Petitioner further asserts:

Petitioner went through necessary procedures to obtain the proper 28

U.S.C. § 2254 petition from the clerk of court of the U.S. District Court,

Northern District of Florida. (Ex. D). And contacted Dr. Luskin about

acquiring his legal expertise, at least four months prior to the expiration

date of one year limitation period as applied to his case. (Ex. G). Thus,

Petitioner was diligently pursuing his rights and would have met the one

year limitation period set forth in AEDPA, 28 U.S.C. § 2244(d), if not for

Dr. Luskin’s knowingly factual misrepresentation as to the expiration of the

limitation period.

Id. Petitioner concludes that, based on Holland, he is entitled to equitable tolling and his

§ 2254 petition should be accepted as timely filed. Id.

Unlike the situation in Holland, however, the circumstances in this case do not

involve attorney misconduct. From information in Petitioner’s objections and exhibits,

as well as Respondent’s response and exhibits, Dr. Luskin was not Petitioner’s attorney,

he was disbarred in 1991, and was not a bar member when working with Petitioner. 

Case No. 4:10cv152-MP/CAS
Page 10 of 18

See Doc. 20 at 4; Doc. 22 at 3-4; Doc. 22 Exs. A and F. As Respondent points out,

even “garden variety” negligence of counsel in miscalculating the AEDPA limitations

period is insufficient to warrant equitable tolling. Doc. 22 at 9; see, e.g., Holland, 130

S.Ct. at 2564 (“[A] garden variety claim of excusable neglect such as a simple

miscalculation that leads a lawyer to miss a filing deadline does not warrant equitable

tolling.”); Lawrence, 549 U.S. at 336-37 (“Attorney miscalculation is simply not sufficient

to warrant equitable tolling, particularly in the postconviction context where prisoners

have no constitutional right to counsel.”); Hutchinson v. Fla., 677 F.3d 1097, 1101-03

(11th Cir. 2012) (rejecting claim of equitable tolling where petitioner’s attorneys

miscalculated deadline, petitioner expressed concern to attorneys about deadline, and

petitioner could have filed petition himself but waited, without explanation, nearly four

years to do so). Because attorney negligence in calculating the AEDPA timeline is not

an extraordinary circumstance warranting equitable tolling, it does not seem that nonattorney negligence, assuming such negligence exists here, would warrant equitable

tolling. In this regard, this case appears more similar to those involving erroneous

advice from inmate law clerks to pro se petitioners. See, e.g., Whiddon v. Dugger, 894

F.2d 1266, 1267 (11th Cir. 1990) (rejecting petitioner’s argument for cause based “on

his nonlawyer status, on what he sees as poor advice by inmate law clerks, and on a

contention that he ought to have had legal assistance in preparing his collateral

petition”); Leftwich v. Sec’y, Dep’t of Corr., No. 3:10cv424-J-37MCR, 2011 WL 4947531

*3 (M.D. Fla. Oct. 17, 2011) (“Inmate law clerks are not lawyers, and mere negligence

on their part will not justify equitable tolling.”). 

Case No. 4:10cv152-MP/CAS
Page 11 of 18

Further, any misconduct by Dr. Luskin concerning the calculation of the limitation

period did not stand in Petitioner’s way and prevent Petitioner from filing his pro se

§ 2254 petition. Unlike the petitioner in Holland, Petitioner here was proceeding pro se

and could have filed his § 2254 petition at any point, regardless of what Dr. Luskin

advised. Indeed, in his objections, Petitioner states he believed the limitations period

expired in September 2009 and he had gotten the § 2254 form himself from the court. 

Doc. 20 at 3-4; see Doc. 20 Exs. B and D. Petitioner has not demonstrated the type of

due diligence that the petitioner in Holland did. Petitioner here received responses from

Dr. Luskin, also unlike the situation in Holland. Notably, nothing in the exhibits

Petitioner has provided indicates that Dr. Luskin told Petitioner when the deadline was

for the § 2254 petition, though in a couple of letters Dr. Luskin states “in time for mailing

before the April 26th date.” Doc. 20 Exs. A, C; see Doc. 20 Exs. A-G. Regardless, that

Petitioner may have chosen to believe any erroneous information from Dr. Luskin

concerning his AEDPA deadline, rather than filing his pro se petition timely, does not

constitute an extraordinary circumstance warranting equitable tolling.

Based on the foregoing, Petitioner’s claim of equitable tolling should be rejected.

Petitioner’s remaining legal arguments in his objections, concerning whether he is

entitled to a 20-day period of tolling during the pendency of a habeas corpus petition in

the First DCA, were addressed and denied in the original Report and Recommendation,

quoted above. Doc. 19. Notably, even allowing Petitioner these additional 20 days in

September 2009, his § 2254 petition filed on April 21, 2010, is still untimely.

Case No. 4:10cv152-MP/CAS
Page 12 of 18

 (2) Motion for Stay

As indicated in the order remanding this case, Doc. 25, the United States

Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005), held that a district court has

discretion to grant a stay and abeyance if (a) the petitioner had “good cause” for failing

to exhaust the claims in state court; (b) the unexhausted claims are “potentially

meritorious”; and (c) “there is no indication that the petitioner engaged in intentionally

dilatory litigation tactics.” Given that Petitioner’s § 2254 petition is untimely, the stay

issue appears moot. See id. at 275 (discussing ”interplay between AEDPA’s 1-year

statute of limitations” and “dismissal requirement” in Rose v. Lundy, 455 U.S. 509

(1982), and explaining that “[i]f a petitioner files a timely but mixed petition in federal

district court, and the district court dismisses it under Lundy after the limitations period

has expired, this will likely mean the termination of any federal review” (emphasis

added)); Parmley v. Norris, 586 F.3d 1066, 1073 (8th Cir. 2009) (“As an alternative

basis for reversal, Parmley argues that the district court should have stayed his petition

pursuant to Rhines v. Weber, [544 U.S. 269 (2005),] to allow him to perfect his petition

by pursuing his unexhausted claims in Arkansas state court. Because the stay-andabeyance procedure for mixed habeas petitions is limited to timely petitions, see id. at

275 . . . , our conclusion that Parmley’s petition was untimely renders the stay-andabeyance issue moot.”).

Nevertheless, addressing the motion for a stay, Petitioner asserts a claim of

newly discovered evidence and argues that, because his claim has merit, “the state

court will have to conduct an evidentiary hearing on his actual innocence issue.” Doc.

23 at 3. In particular, Petitioner states that he “discovered a previously unknown

Case No. 4:10cv152-MP/CAS
Page 13 of 18

eyewitness” at some point “after Petitioner[‘s] federal proceedings had been initiated

pursuant to 28 U.S.C. § 2254.” Doc. 23 at 2. Petitioner states that this witness, Andre

Robinson, “can provide exculpatory evidence in his behalf” and Petitioner “only

discovered Robinson’s identity and the nature of his proposed exculpatory testimony,

sometime in September of 2011, through Tanisha Lovett-Austin.” Id. The pendency of

this § 2254 proceeding, however, does not prevent Petitioner from filing a Rule 3.850

motion in Florida state court asserting his claim of newly discovered evidence. See Fla.

R. Crim. P. 3.850(b) (providing that no Rule 3.850 motion may be filed “more than 2

years after the judgment and sentence become final unless it alleges that . . . the facts

on which the claim is predicated were unknown to the movant or the movant’s attorney

and could not have been ascertained by the exercise of due diligence, and the claim is

made within 2 years of the time the new facts were or could have been discovered with

the exercise of due diligence”). Nothing indicates Petitioner has filed such a motion. 

Given this, Petitioner has failed to show “good cause” for failing to exhaust this claim. 

Further, from the information Petitioner has provided, his unexhausted claim of

newly discovered evidence/actual innocence appears questionable. Specifically,

Petitioner asserts that he discovered the identity of the previously unknown eyewitness,

Andre Robinson, through Tanisha Lovett-Austin “who is also willing and available to

testify as to exactly what evidence Andre Robinson had relayed to her and as to when

she relayed the information to Petitioner.” Doc. 23 at 2. Petitioner further states:

According to Lovett-Austin, Robinson relayed the following information to

her:

On the night, the alleged crimes took place he was actually present

and standing near a SUV type vehicle, in which there was a fight going on

Case No. 4:10cv152-MP/CAS
Page 14 of 18

between two groups of people. While the fight was transpiring, he saw a

black male stick his arm out of the rear passenger window, located on the

driver side of the vehicle, and began shooting a firearm. In addition, if

necessary he can identify the person he saw shooting the firearm, and he

is positive that Rolle was not the person he saw shooting the firearm from

the rear passenger window located on the driver side of the vehicle. (This

is only a brief summary of the facts as told to Rolle).

Accordingly, Petitioner asked Lovett-Austin if she could contact

Robinson and see if he was willing to give a sworn statement and possibly

testify to what he had witnessed on the night the crimes were committed. 

Lovett-Austin eventually got in contact with Robinson who was more than

willing to write a sworn statement and testify to the events he had

witnessed. After writing the statement, Robinson gave Lovett-Austin the

statement to mail to Petitioner. Petitioner spoke with Lovett-Austin, before

she was able to mail the statement to Petitioner, and was told that the

statement contained an oath, in compliance with Florida Statute [sic]

92.525(1)(b) and (2), but failed to be notarized by an official notary public. 

The Petitioner then instructed Lovett-Austin to have the statement

notarized by a notary public, but as of the date of this motion, LovettAustin and Andre Robinson has been unable to get together to have the

statement notarized, due to lack of communication between the two and

their conflicting work schedules. Therefore, as of the date of this motion,

Robinson’s sworn statement has not been notarized by a notary public. 

However, the statement does contain an unnotarized oath. See: Fla. Stat.

95.525(1)(b). . . .

Doc. 23 at 2-3. Petitioner filed this motion on February 7, 2012. Id. at 1, 5. Petitioner

did not attach anything to the motion, so it has not been accompanied by any affidavits,

notarized or unsworn statements, and Petitioner has not filed anything in this case since

that time. Given this lack of support, it does not appear that Petitioner’s claim is 

“potentially meritorious.” 

Petitioner has thus failed to satisfy the first two elements of the Rhines test. As

to the third element, nothing indicates Petitioner has engaged in intentionally dilatory

litigation tactics. Nevertheless, given the analysis above, he has failed to satisfy the

Case No. 4:10cv152-MP/CAS
Page 15 of 18

other elements of the Rhines test and, therefore, his motion seeking a stay should be

denied. 

Finally, to the extent Petitioner argues “actual innocence” and the court should

consider his § 2254 petition even though it is time-barred under AEDPA’s one-year

limitation period, Petitioner has failed to demonstrate he is entitled to review of his

petition pursuant to such an exception. See Doc. 23 at 4 (“[I]f this Court concludes that,

the Petitioner is in fact not entitled to such tolling; a finding of actual innocence in this

case, opens the gateway for this Court to hear Petitioner’s procedurally defaulted

claims.”). Indeed, such an “actual innocence” exception, if it exists in this context,

requires Petitioner “(1) to present ‘new reliable evidence . . . that was not presented at

trial,’ and (2) to show ‘that it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt’ in light of the new evidence.” 

Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012) (citations

omitted; quoting Schlup v. Delo, 513 U.S. 298, 324, 327 (1995)). Such a claim “requires

[a] petitioner to support his allegations of constitutional error with new reliable evidence

– whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence – that was not presented at trial.” Schlup, 513 U.S. at 324. In

this case, as indicated above, Petitioner has not supported his allegations with any such

“new reliable evidence.” Cf., e.g., Kuenzel v. Comm’r, Ala. Dep’t of Corr., 690 F.3d

1311, 1316 (11th Cir. 2012) (analyzing claim of actual innocence in attempt to satisfy

Schlup gateway and explaining “Petitioner has now offered several pieces of ‘new

evidence’ – affidavits, declarations, and other material – that he contends sufficient

establish his actual innocence of the crime”). See, e.g., Anderson v. Tucker, No.

Case No. 4:10cv152-MP/CAS
Page 16 of 18

3:11cv210/MCR/EMT, 2012 WL 4794630, at *7 (N.D. Fla. Aug. 30, 2012) (report and

recommendation rejecting petitioner’s “actual innocence” gateway argument based on

“newly discovered evidence” and explaining, in part: “Regarding the potential testimony

of Bill Jones, Petitioner has offered no reliable evidence, for example, an affidavit or

deposition testimony, of the substance of Mr. Jones’s testimony if he had testified at

Petitioner’s trial.”); Likely v. Sec’y, Dep’t of Corr., No. 3:11cv187/LAC/EMT, 2012 WL

1854275, at *5 (N.D. Fla. Apr. 19, 2012) (report and recommendation rejecting

petitioner’s “actual innocence” gateway argument and explaining: “Petitioner failed to

support her allegations with any reliable evidence. Indeed, she has not provided any

evidence, for example, an affidavit from Ms. Moultrie, showing that Ms. Moultrie would

have testified to the facts alleged by Petitioner.”); Young v. Tucker, No.

3:11cv251/MCR/EMT, 2012 WL 1605893, at *4 (N.D. Fla. Mar. 20, 2012) (report and

recommendation rejecting “actual innocence” argument and explaining: “In the instant

case, Petitioner has not supported his allegations with any new reliable evidence of his

innocence. Therefore, he has failed to make a threshold showing of actual

innocence.”). 

Based on the foregoing, Petitioner’s motion for a stay should be denied. 

Conclusion

Petitioner is not entitled equitable tolling or a stay of this proceeding, the matters

for the undersigned to consider pursuant to the District Court’s order of remand. Doc.

25. Based on the findings contained in the previous Report and Recommendation, Doc.

19, adopted and incorporated herein, the petition for writ of habeas corpus filed

Case No. 4:10cv152-MP/CAS
Page 17 of 18

pursuant to 28 U.S.C. § 2254, Doc. 12, should be dismissed with prejudice as untimely. 

Certificate of Appealability

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," 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)." Rule 11(b) provides that a timely notice of appeal

must still be filed, even if the court issues a certificate of appealability. 

Petitioner fails to make a 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 (2000)

(explaining substantial showing) (citation omitted). Therefore, the Court should deny a

certificate of appealability in its final order.

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.

Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P.

24(a)(3)(A) (providing that before or after notice of appeal is filed, the court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).

Recommendation

It is therefore respectfully RECOMMENDED that the Court DENY Petitioner’s

motion to stay (Doc. 23), and DISMISS Petitioner's § 2254 petition (Doc. 12) as

Case No. 4:10cv152-MP/CAS
Page 18 of 18

untimely. It is further RECOMMENDED that a certificate of appealability be DENIED

and that leave to appeal in forma pauperis be DENIED.

IN CHAMBERS at Tallahassee, Florida, on November 8, 2012.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Within fourteen (14) days after being served with a copy of this report and

recommendation, a party may serve and file specific, written objections to the

proposed findings and recommendations. A party may respond to another

party's objections within ten (10) 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. 4:10cv152-MP/CAS