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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ROBERT SPELLMAN,

Petitioner,

vs. Case No.: 3:11cv242/MCR/EMT

SEC’Y, DEP’T OF CORR.,

Respondent. 

_____________________________________/

REPORT AND RECOMMENDATION

Before the court is an amended petition for writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254 (doc. 4). Respondent filed a motion to dismiss the petition as untimely, with relevant

portions of the state court record (doc. 18). Petitioner filed a response in opposition to the motion

(doc. 21). 

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 relevant procedural history of this case is established by the state court record (doc. 18). 

Petitioner was charged in the Circuit Court in and for Escambia County, Florida, Case No. 2005-CF3751, with one count of burglary of an occupied dwelling (Count 1), one count of dealing in stolen

property by trafficking (Count 2), one count of tampering with evidence (Count 3), and one count

of felony petit theft (Count 4) (Ex. A at 3–4). The State nolle prossed the dealing in stolen property

count, and the tampering count was severed from the other two counts for purposes of trial (see id.

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at 12, 58). Following separate jury trials on May 19 and May 24, 2006, Petitioner was found guilty

of the burglary, petit theft, and tampering counts (id. at 23–24, 33). On June 29, 2006, he was

adjudicated guilty and sentenced to nine (9) years of imprisonment on the burglary count, and

concurrent terms of five (5) years of imprisonment on the tampering and theft counts, to run

concurrently with the sentence on the burglary count, with pre-sentence jail credit of 112 days (Ex.

A at 46–58). 

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

Case No. 1D06-3931 (Ex. B). The First DCA affirmed per curiam without written opinion on

November 29, 2007, with the mandate issuing December 17, 2007 (id.). Spellman v. State, 969 So.

2d 377 (Fla. 1st DCA 2007) (Table). Petitioner did not seek further review. 

On March 23, 2009, Petitioner filed a motion for post-conviction relief, pursuant to Rule

3.850 of the Florida Rules of Criminal Procedure (Ex. C-1). On September 21, 2009, the state

circuit court struck the motion as facially insufficient with leave for Petitioner to file a facially

sufficient motion “within a reasonable time” (Ex. C-2). Petitioner filed an amended motion, which

was summarily denied on September 28, 2010 (Ex. D-1). Petitioner appealed the decision to the

First DCA, Case No. 1D10-6290 (Ex. E-1). The appellate court affirmed per curiam without written

opinion on March 17, 2011, with the mandate issuing May 16, 2011 (Exs. E-1, F). Spellman v.

State, 60 So. 3d 392 (Fla. 1st DCA 2011) (Table).

Petitioner filed his federal habeas petition on May 9, 2011 (doc. 1). 

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:

(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

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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 limitations period is

§ 2244(d)(1)(A), the date Petitioner’s conviction became final (doc. 18 at 2). Petitioner does not

contend, nor do the allegations in his petition suggest, that any of the statutory triggers set forth in

§ 2244(d)(1)(B–D) apply. Therefore, the statute of limitations will be measured from the date the

judgment became final. See 28 U.S.C. § 2244(d)(1)(A).

The First DCA affirmed the judgment on November 29, 2007. Petitioner did not seek further

review; therefore, his conviction became final upon expiration of the ninety-day period for doing

so, February 28, 2008. See Chavers v. Secretary, Florida Dept. of Corrections, 468 F.3d 1273,

1274–75 (11th Cir. 2006) (judgment of conviction becomes “final” after the expiration of the

ninety-day period in which the petitioner could have filed a petition for a writ of certiorari, which

begins to run on the date of the appellate court’s affirmance of the conviction, not the date of the

appellate court’s mandate). Petitioner had one year from that date, or until February 28, 2009, 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). 

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On March 23, 2009, Petitioner filed a Rule 3.850 motion; however, it was filed after the

federal limitations period expired and therefore did not toll it. See Webster v. Moore, 199 F.3d

1256, 1259 (11th Cir. 2000). Petitioner’s federal petition, filed May 9, 2011, was thus untimely.

Petitioner asks the court to equitably toll the limitations period (doc. 21). A petitioner is

entitled to equitable tolling of the federal limitations period 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.” Holland v. Florida, — U.S. —, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130

(2010) (citing Pace, 544 U.S. at 418) (internal quotations omitted); see also Hunter v. Ferrell, 587

F.3d 1304, 1308 (11th Cir. 2009) (citation omitted). Because equitable tolling is “an extraordinary

remedy,” it “is limited to rare and exceptional circumstances” and “typically applied sparingly.” 

Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005). Thus, the Eleventh Circuit has

concluded that equitable tolling is available only “‘when a movant untimely files because of

extraordinary circumstances that are both beyond his control and unavoidable even with diligence.’” 

Id. (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)). “As for the

‘extraordinary circumstance’ prong, like the Supreme Court’s articulation in Holland, [the Eleventh

Circuit] too ha[s] required a defendant to show a causal connection between the alleged

extraordinary circumstances and the late filing of the federal habeas petition. See San Martin v.

McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (citing Lawrence, 421 F.3d at 1226–27). “The

diligence required for equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible

diligence.’” Holland, 130 S. Ct. at 2565 (internal quotation marks and citation omitted). “The

burden of proving circumstances that justify the application of the equitable tolling doctrine rests

squarely on the petitioner.” San Martin, 633 F.3d at 1268 (citing Drew v. Dep’t of Corr., 297 F.3d

1278, 1286 (11th Cir. 2002)). “Mere conclusory allegations are insufficient to raise the issue of

equitable tolling.” Id. (citations omitted).

In the instant case, Petitioner alleges the inmate who was assisting him with his Rule 3.850

motion was released from incarceration on February 6, 2009, and accidentally took Petitioner’s

transcripts and other legal documents with him (doc. 21 at 1–2). Petitioner states the documents

were vital to the preparation of his Rule 3.850 motion, and were not returned to him until March 20,

2009 (id.). He states another inmate then assisted him with filing him Rule 3.850 motion on March

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23, 2009 (id.). Petitioner asserts he has been diligently pursuing his rights, and this “extraordinary”

circumstance caused the untimely filing of his federal petition (id.). 

Petitioner does not allege he made any effort to pursue his rights during the 11-month period

between the date his conviction became final and the date he became separated from his legal

documents (February 28, 2008 to February 9, 2009). Therefore, he failed to show he has been

pursuing his rights diligently. Further, he failed to show that the 42-day separation from his legal

documents actually caused the late filing of the federal habeas petition. Therefore, Petitioner failed

to carry his burden of establishing he is entitled to the extraordinary remedy of equitable tolling.

III. CONCLUSION

Petitioner filed his § 2254 petition after the one-year federal limitations period expired. 

Further, he failed to demonstrate he is entitled to equitable tolling of the limitations period, or that

he is entitled federal review of his claims through any recognized exception to the time bar.

Therefore, the § 2254 petition should be dismissed with prejudice as time-barred.

IV. 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. 18) be GRANTED.

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2. That the amended petition for writ of habeas corpus (doc. 4) be DISMISSED with

prejudice as untimely. 

3. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 30th day of May 2012.

/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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