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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GREGORY D. TRUETTE,

Petitioner,

v. Case No. 5:10cv292/RS/MD

KENNETH S. TUCKER, 

Respondent.

______________________________________________________________________

REPORT AND RECOMMENDATION

This case is before the court on Gregory D. Truette’s (“Mr. Truette”)

September 22, 2010 petition for habeas corpus filed pursuant to 28 U.S.C. § 2254

(doc. 1). Respondent has requested that this court dismiss the petition as timebarred (doc. 29). Petitioner replied contending that because his appeal is based on

newly discovered evidence, then respondent’s argument is inadmissible (doc. 52,

p. 5 and doc. 58). 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, Rule 8(a), Rules Governing

Section 2254 Cases. 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 March 12, 1999, Mr. Truette was charged with cultivation of marijuana (doc.

53-1, pp. 6-9) and possession of a controlled substance (methamphetamine) in

violation of Sections 893.13(1)(a) and 893.13(6)(a), Florida Statutes (doc. 53-2, p. 12)

in the Circuit Court of Washington County, Florida in case number 99-51CF. He

pleaded no contest under a plea agreement, but reserved his right to appeal a

suppression issue (doc. 53-2, pp. 16-22). The state court withheld adjudication of

guilt, and placed him on 2-year probation for both counts (doc. 53-2, pp. 35-36).

On August 21, 2000, Mr. Truette filed an appeal with the Florida First District

Court of Appeal (“First DCA”) as to the suppression issue (doc. 32-1, pp. 2-22). On

May 29, 2001, the First DCA affirmed per curiam the state court’s decision with a

specially concurring written opinion by Judge Browning (doc. 45-1, p. 8-17). 

On December 8, 2000, Mr. Truette was arrested for possession of more than

20 grams of marijuana, cocaine, drug paraphernalia, and a .45 caliber pistol, case

number 00-253CF in the Circuit Court of Washington County, Florida (doc. 32-1, p.

39). His probation officer issued a violation of probation report, and Mr. Truette

admitted to this violation. Id. Therefore, on December 17, 2001, the state court

revoked his sentence in case number 99-51CF, and sentenced him to 2 years in

prison followed by 2 years probation. Id., doc. 32-1, pp. 36-37. The state court then

sentenced Mr. Truette in case number 00-253CF to 2 years in prison followed by 3

years probation to be served concurrently with the other sentence. Id. 

On May 10, 2004, Mr. Truette’s probation officer issued an affidavit for

violation of probation (doc. 32-1, pp. 38-50), which he later amended on August 18,

2004 (doc. 32-1, pp. 51-67). Originally he attested that Mr. Truette had failed to pay

for the cost of the supervision and had tested positive for methamphetamine in a

urinalysis obtained on April 29, 2004 (doc. 32-1, p. 38). The amended violation report

added that Mr. Truette had been arrested on August 17, 2004 for possession of more

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than 5 grams of methamphetamine packaged for sale, 3 guns and 29 homemade

bombs (doc. 32-1, pp. 51-54; case 5:04cr55 MCR/WCS doc. 1). It also included a

violation for visiting a place were drugs are sold or used (doc. 32-1, p.52). 

On May 3, 2005, the state court held a hearing for both cases 99-51CF and 00-

253CF where Mr. Truette admitted all of the probation violations and requested the

court to approve a plea settlement where he would be adjudicated guilty, sentenced

to 2 years in prison with 356 days of credit, and for the sentence to run concurrently

with his federal prison sentence, which the court approved (doc. 33-1, pp. 6-12). 1

On February 25, 2007, Mr. Truette filed a motion to vacate, set aside or correct

his sentence pursuant to Rule 3.850(a)(5), Florida Rules of Criminal Procedure,

averring newly discovered evidence (doc. 57-1, pp 8-18). He alleged that his guilty

plea was involuntary, and wanted to have it withdrawn (doc. 57-1, p. 8). Mr. Truette’s

former probation officer, Mr. Joe Canoi (“Mr. Canoi”), wrote an undated letter to Mr.

Truette, which prompted this motion (doc. 57-1, p. 14). Mr. Truette alleged that

pursuant to Mr. Canoi’s letter urine samples had been improperly handled, and his

sample could have been contaminated (doc. 57-1, pp. 8-9). He argues that if he had

known, he would not have agreed to the plea (doc.57-1, p. 11). On June 15, 2009, the

Rule 3.850 court held an evidentiary hearing, and Mr. Canoi testified as to whether

there was actual tampering of Mr. Truette’s urine sample (doc. 33-2, pp. 3-23). 

Mr. Canoi characterized his work environment aspossiblyunsecured because

the lock to the refrigerator where he kept the tested urine samples was nearby the

door to his office (doc. 33-2, pp 9-10). He also mentioned that Mr. Truette was

familiar with the set up and procedure for urine analysis from first hand observation

(doc. 33-2, p. 12). Mr. Truette’s cousin requested Mr. Canoi write the letter at issue

describing the procedures to collect the urine analysis. Id. 

On April 6, 2005, Mr. Truette was sentenced in his federal case to 540 months imprisonment,

1

8 years of supervised release, and $500 SMA pursuant to a plea agreement (5:04cr55 MCR/WCS docs.

16 and 24).

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During cross-examination, Mr. Canoi admitted that there was no evidence that

Mr. Truette’s sample was tampered with, but that he merely said that it was a

possibility (doc. 33-2, p. 13). He also conceded that the urinalysis was not the only

violation of probation, specifically referring to Mr. Truette’s August 17, 2004 arrest

(doc. 33-2, p. 14). Mr. Canoi also confirmed that the violation for failure to pay cost

of supervision was correct when it was issued even though Mr. Truette paid it after

the fact (doc. 33-2, pp. 17-18). 

The Rule 3.850 court then addressed Mr. Truette directly as to his testimony

at the May 3, 2005 hearing where he admitted under oath all of the violations,

including the urinalysis (doc. 33-2, pp. 19-21). Mr. Truette responded that he “was

going under advice of my counsel at that time.” Id. at 21. He contended that his

counsel told him to get the state case over with in order to have that state sentence

run concurrently with the federal sentence. Id. The court pointed out to Mr. Truette

that at that time he had already pleaded to the federal charges, and Mr. Truette

acknowledged that. Id. The court then questioned Mr. Canoi directly, who

confirmed that he watched Mr. Truette provide the urine sample and do the

presumptive stick test that indicated positive, which is why he had to send it off to

the laboratory for confirmation (doc. 33-2, pp. 22-23). Mr. Canoi denied to the court

that there was any tampering with Mr. Truette’s urine sample (doc. 33-2, p. 23).

The Rule 3.850 court explained to Mr. Truette that even if the original valid

arrest warrant issued based on his positive presumptive urinalysis test and failure

to pay supervision costs were to be thrown out, anything found in his possession

and his premises would not be thrown out under “fruit of the poisonous tree”

because the officers had legal authority to be there and conduct the search (doc. 33-

2, pp. 24-25). The court explicitly held that the search was proper and the warrant

was valid (doc. 33-2, p. 26). The court denied the motion because there was no

testimony that would indicate a probability that the urinalysis was tampered with as

adduced from Mr. Canoi’s testimony regarding the presumptive positive test, and

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that even if there had been any contamination, that would not invalidate the

otherwise valid warrant issued after confirmation by the laboratory (doc. 33-2, pp.

26-28). 

The Rule 3.850 court issued a written order on July 1, 2009 denying Mr.

Truette’s motion because: (1) the unlikely possibility of the urine sample being

mistaken, exchanged or contaminated given the testimony of the probation officer

that the test yielded a positive result in his presence, (2) the arrest warrant was valid

and at the time Mr. Truette was found to be in possession of controlled substances,

and (3) in addition to the urinalysis, the new charges and technical violations served

as additional basis for violation (doc. 18, pp. 10-11). On March 5, 2010, Mr. Truette

appealed to the First DCA (doc. 33-2, pp. 33-44), which on June 10, 2010 issued a per

curiam opinion affirming the state court’s denial of his motion for post-conviction

relief (doc. 18, p. 12). Mandate issued on August 4, 2010 (doc. 33-2, p. 58). On

August 2, 2010, the Supreme Court of Florida dismissed Mr. Truette’s appeal due to

lack of jurisdiction (doc. 1, p. 22). 

Petitioner filed the instant petition for federal writ of habeas corpus on

September 13, 2010 (doc. 1), later amended on December 10, 2010 (doc. 18). 

DISCUSSION

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). A person in custody pursuant to a state court

judgment must file a federal habeas corpus petition within one year 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;

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(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.

28 U.S.C. § 2244(d)(1). “A judgment becomes ‘final’ on the date on which the United

States Supreme Court issues a decision on the merits of the petitioner's direct

appeal or denies certiorari, or after the expiration of the ninety days in which the

petitioner could file such a petition.” Ilarion v. Crosby, 179 Fed. Appx. 653, *1 (11th

Cir. 2006) (citing Bond v. Moore, 309 F.3d 770, 773-74 (11 Cir.2002)). According to th

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 count toward

any period of limitation. 28 U.S.C. § 2244(d)(2). The time during which a belated

appeal of an order denying post-conviction relief is pending also tolls the limitations

period. Moore, 321 F.3d at 1381.

The Eleventh Circuit has held that the “AEDPA’s statute of limitations begins

to run from the date both the conviction and the sentence the petitioner is serving

at the time he files his application become final because judgment is based on both

the conviction and the sentence.” Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286,

1293 (11 Cir. 2007) (relying on Burton v. Stewart, 549 U.S. 147, 127 S. Ct. 793, 166

th

L. Ed. 2d 628 (2007)); see also Ferreira, 494 F.3d at 1292 (“the judgment to which

[section 2254(a)] refers is the underlying conviction and most recent sentence that

authorizes the petitioner’s current detention”) (emphasis added). Thus, if a

petitioner is re-sentenced, then his AEDPA statute of limitations would reset on

expiration of the opportunity for direct review of the new or amended judgment resentencing him.

Section 948.06, Florida Statutes, governing violation of probation, does not

use the term “re-sentence.” It states in relevant part:

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(e) After such hearing, the court may revoke, modify, or continue the

probation or community control or place the probationer into

community control. If such probation or community control is revoked,

the court shall adjudge the probationer or offender guilty of the offense

charged and proven or admitted, unless he or she has previously been

adjudged guilty, and impose any sentence which it might have

originally imposed before placing the probationer or offender on

probation or into community control.

Fla. Stat. § 948.06(e). However, some Florida courts use the term “re-sentence”

instead of “sentence” to describe a defendant’s new sentence after a violation of

probation. See, e.g., State of Florida v. Payne, 404 So.2d 1055, 1056 (Fla. 1981) (“one

who has been sentenced to a period of incarceration and then given a period of

probation may, upon revocation of his probation, be re-sentenced to any term which

might originally have been imposed”), Smith v. State of Florida, 637 So.2d 84 (Fla.

5 DCA 1994) (“The court, upon finding the violation to have occurred, revoked the th

probation imposed for each count and resentenced appellant on each charge.”). 

Mr. Truette pleaded guilty to the probation violations and was sentenced on

May 3, 2005 (doc. 33-1, pp. 6-12). He did not move for rehearing, or appeal to the

First DCA . Accordingly, his conviction became “final” for purposes of § 2244 on 2

June 2, 2005, thirty days later. Fla.R.App.P. Rule 9.140(b)(3). The federal habeas

statute of limitations began to run on that date. See 28 U.S.C. § 2244(d)(1). 

It is questionable whether Mr. Truette could appeal his sentence because he admitted to all

2

of the probation violations, pleaded guilty, and did not expressly reserve the right to appeal his

sentence (doc. 33-1, pp. 6-12). See Florida Statutes Section 924.051(4):

If a defendant pleads nolo contendere without expressly reserving the right to appeal

a legally dispositive issue, or if a defendant pleads guilty without expressly reserving

the right to appeal a legally dispositive issue, the defendant may not appeal the

judgment or sentence.

See also Florida Statutes Section 924.06(3):

A defendant who pleads guilty with no express reservation of the right to appeal a

legally dispositive issue, or a defendant who pleads nolo contendere with no express

reservation of the right to appeal a legally dispositive issue, shall have no right to a

direct appeal.

However, for arguments sake, the court will analyze the statute of limitations as if he would have been

able to appeal to the First DCA because the conclusion is the same.

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Therefore, in order to be timely, Mr. Truette had to file his federal habeas petition by

June 2, 2006. The instant petition, which was filed well after that date, is untimely. 

See McCloud v. Hooks, 560 F.3d 1223, 1229 (11th Cir. 2009) (calculating expiration

of limitations period as one year from the date after the judgment became “final”

under § 2244(d)(1)); Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1331 (11th Cir.

2008) (same).

Mr. Truette filed his Rule 3.850 motion 268 days later, on February 25, 2007

(doc. 57-1, pp 8-18). This properly filed motion could not toll the statue of limitations

because his one-year statute of limitations had already expired. 28 U.S.C. § 2244(d). 

Mr. Truette asserts that because his Rule 3.850 motion and the instant petition are

based on newly discovered evidence (docs. 52 and 58). He further contends that he

initiated this petition within the one year time limit since exhausting the avenues of

relief with the Florida Supreme Court. Id. He then avers that respondent’s timebarred argument is inadmissible because it was not raised in the state proceedings.

Id. 

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

130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010). 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). Equitable tolling is an

extraordinary remedy to be applied sparingly, and the petitioner has the burden of

establishing he is entitled to it. Drew v. Fla. Dep’t of Corr., 297 F.3d 1278, 1286 (11th

Cir. 2002). Recently, the United States Supreme Court clarified that counsels’ failure

to inform petitioner or the court that they no longer would represent petitioner, while

letting the time to file a notice to appeal lapse, constituted cause to excuse

petitioner’s procedural default. Maples v. Thomas, __ U.S. __, 132 S.Ct. 912 (2012).

Mr. Truette has not alleged sufficient facts to entitle him to equitable tolling. 

The alleged newly discovered evidence constitutes a vague undated letter from his

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former probation officer requested by Mr. Truette’s cousin. Nothing in the letter or

in the testimony by Mr. Canoi during the Rule 3.850 evidentiary hearing

demonstrated any violation of Mr. Truette’s rights. It certainly did not provide him

with new information so as to excuse his delay in filing the instant petition. Mr.

Canoi testified that Mr. Truette was familiar with the set up and procedures of the

urinalysis samples. Mr. Truette did not engage in due diligence. Nothing in the letter

established tampering with Mr. Truette’s urine sample, which tested positive in the

presence of Mr. Canoi. In fact, the testimony by Mr. Canoi refuted those assertions. 

Mr. Truette has the burden of establishing he is entitled to equitable tolling, and

based on the pleadings, this court finds that he failed to meet that burden.

Mr. Truette’s other two arguments are meritless because he only appealed the

denial of post-conviction relief to the Florida Supreme Court, and not his original

sentence, which is what triggered the running of the federal statute of limitations. 

Also, the statute of limitations for his state proceedings differ from those of this

federal habeas proceeding, which is why respondent could raise the time-barred

issue here and not in state court.

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, respondent’s motion to dismiss (doc. 29) should be granted, and

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

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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.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” If petitioner

files an objection to this recommendation, he may bring this argument to the

attention of the district judge in his objections.

Accordingly, it is respectfully RECOMMENDED:

1. That respondent’s motion to dismiss (doc. 29) be GRANTED.

2. That the petition for writ of habeas corpus (doc. 1), later amended (doc. 18)

challenging the conviction and sentence in State of Florida v. Gregory D. Truette, in

the Circuit Court of Washington County, Florida, case numbers 99-51CF and 00-

253CF, be DISMISSED WITH PREJUDICE.

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

4. That a certificate of appealability be DENIED.

At Pensacola, Florida this 1st day of March, 2012.

 /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

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