Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PRESTON R. SCOTT,

Petitioner,

vs. Case No.: 3:11cv64/WS/EMT

KENNETH S. TUCKER,

Respondent.

___________________________________/

ORDER AND REPORT AND RECOMMENDATION

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

under 28 U.S.C. § 2254 (doc. 13). Respondent filed a motion to dismiss the petition as untimely,

with relevant portions of the state court record (doc. 26). Petitioner filed a response in opposition

to the motion (doc. 29). Petitioner also filed a “Motion for Reconsideration of Jurisdiction Notice

and Additional Facts” (doc. 28), which the undersigned construes as a motion to consider the

arguments included therein and the exhibits attached thereto, and will grant only to that extent.

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. 26,

Exhibits).1

 By indictment, Petitioner was charged in the Circuit Court in and for Escambia County,

1

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

motion to dismiss (doc. 26). If a cited page has more than one page number, the court cites to the “Bates stamp” page

number. 

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 1 of 13
Page 2 of 13

Florida, with committing premeditated first-degree murder of Tina Lafayette Scott with a weapon

on or about December 26, 2004 (Ex. A). Through counsel, Petitioner filed a pretrial motion to

suppress statements he made during a police interview on December 27, 2004, which was recorded

on an audio tape (Ex. B). At the commencement of evidentiary proceedings on the motion to

suppress, the parties discussed and agreed to redactions of certain portions of the interview (Ex. B

at 2–7, Ex. C). The trial court denied the motion to suppress (Ex. B). At the commencement of

Petitioner’s jury trial on July 11, 2006, the trial judge inquired whether Petitioner had an opportunity

to review the audio tape of the interview and the transcript of the interview (Ex. E at 9). Petitioner

expressed concern that the transcript reflected some statements that he could not hear on the audio

tape (id. at 9–10). In light of this concern, the State announced it would not utilize the transcript of

the interview during trial and instead play the audio tape for the jury and let it speak for itself (id.

at 10). During trial, an audio recording of Petitioner’s interview with police was admitted into

evidence and published to the jury during the testimony of Deputy Mark Smeester of the Escambia

County Sheriff’s Office (id. at 143–86). The jury found Petitioner guilty of third-degree murder,

a lesser included offense, with an interrogatory finding that Petitioner carried, displayed, used,

threatened to use or attempted to use a weapon during its commission (Ex. F). On August 24, 2006,

Petitioner was adjudicated guilty and sentenced to thirty (30) years of imprisonment, with presentence credit of 607 days (Ex. G). 

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

Case No. 1D06-4962 (Ex. H). Petitioner’s counsel filed a brief, pursuant to Anders v. California,

386 U.S. 738 (1967), asserting that there were no meritorious arguments to support the contention

that reversible error occurred in the trial court. See Scott v. State, Case No. 1D06-4962, online

docket. Petitioner filed a pro se initial brief. Id. On May 22, 2008, the First DCA affirmed the

judgment per curiam without written opinion (Ex. L). Scott v. State, 982 So. 2d 1181 (Fla. 1st DCA

2008) (Table). The mandate issued June 17, 2008 (id.). Petitioner did not seek further review.

While the direct appeal was pending, Petitioner filed, through counsel, a motion to correct

sentencing error, pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure (Ex. I). 

The state circuit count granted the motion on June 22, 2007, and set a re-sentencing hearing for July

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 2 of 13
Page 3 of 13

30, 2007 (Ex. J). Petitioner was re-sentenced to fifteen (15) years of imprisonment, with presentence credit of 607 days (Ex. K).

On May 18, 2009, Petitioner filed a motion seeking an additional fourteen (14) days of presentence credit, pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure (Ex. M). 

The state circuit court denied the motion in an order rendered May 28, 2009 (Ex. N). 

On November 17, 2009, Petitioner filed a motion for post-conviction relief, pursuant to Rule

3.850 of the Florida Rules of Criminal Procedure (Ex. O). On February 16, 2010, the state circuit

court struck the motion as facially insufficient, with leave to file an amended motion within sixty

(60) days (Ex. P). On April 2, 2010, Petitioner filed an amended Rule 3.850 motion (Ex. Q). The

state circuit court summarily denied the motion on May 18, 2010 (Ex. R). Petitioner appealed the

decision to the First DCA, Case No. 1D10-3300 (Exs. S, T). The First DCA affirmed per curiam

without written opinion, with the mandate issuing November 24, 2010 (Ex. U). Scott v. State, 48

So. 3d 58 (Fla. 1st DCA 2010) (Table). 

On June 15, 2010, Petitioner filed a petition for writ of habeas corpus in the First DCA, Case

No. 1D10-3286, alleging ineffective assistance of appellate counsel (Ex. W). The First DCA denied

the petition on the merits on July 12, 2010, and denied Petitioner’s motion for rehearing on August

24, 2010 (Ex. X).

Petitioner filed his federal habeas petition on February 3, 2011 (doc. 1 at 27). He asserts the

following grounds for relief:

Ground One: (A): Ineffective assistance of trial counsel: (1) counsel failed to

investigate whether the audio tape of Petitioner’s interview with police, which the

State introduced at trial, was substantively different than the original tape; (2)

counsel failed to retain an expert to determine if either of the knives collected from

the scene was capable of making the wounds to the victim.

(B): Counsel failed to present mitigating circumstances at sentencing: 

(1) counsel failed to properly bring to the court’s attention various mitigating

circumstances; (2) counsel failed to argue for a sentence at the lowest end of the

sentencing guidelines.

(C): Ineffective assistance of appellate counsel: appellate counsel

failed to secure a complete record on appeal; specifically, counsel failed to obtain the

original audio tape of Petitioner’s interview with police.

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 3 of 13
Page 4 of 13

(see doc. 13 at 7–17).

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

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 is

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

direct appeal (doc. 26 at 4). The appellate court affirmed Petitioner’s judgment and sentence on

May 22, 2008, and the judgment became final ninety (90) days later, on August 21, 2008 (id.).2

 See

Chavers v. Secretary, Florida Dept. of Corrections, 468 F.3d 1273, 1274–75 (11th Cir. 2006)

(judgment of conviction becomes “final” on the date in which the United States Supreme Court

either issues a decision on the merits of the petitioner’s direct appeal or denies certiorari, or after the

expiration of the 90-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

2

 Pursuant to Rule 6 of the Federal Rules of Civil Procedure, the day of the event that triggers the time period

is excluded from the calculation, and the last day of the period is included, so the 90–day period expired on August 21,

2008.

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 4 of 13
Page 5 of 13

the date of the appellate court’s mandate) (citing Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002)

(judgment became “final” ninety days after state supreme court denied defendant’s motion for

rehearing)). 

Liberally construing Petitioner’s allegations, he appears to argue § 2244(d)(1)(D) is the

appropriate statutory trigger for the limitations period (see doc. 29 at 1–4). He asserts he did not

obtain the original audio tape of his interview with police until September 30, 2009 (id.). He states

until he listened to the original tape, he was unable to factually support his claim that trial counsel

was ineffective for failing to investigate the authenticity of the audio tape published to the jury at

trial (“trial tape”), or his claim that appellate counsel was ineffective for failing to obtain the original

tape. Petitioner states the trial tape was altered in the following respects: (1) the original tape

reflects many interruptions and stoppages of the interview; but the trial tape did not appear to have

interruptions or stoppages; (2) the original tape included Petitioner’s statement that he was “ready

to leave”; but the trial tape did not; and (3) the original tape included Miranda3

 warnings given to

him at the beginning of the interview, which failed to advise him that he had a right to speak with

an attorney before questioning; but the trial tape reflected Investigator Orr advised Petitioner he had

the right to speak with a lawyer before questioning (see doc. 13 at 9–12, 16–17, 23, 25; doc. 28 at

2–3; doc. 29 at 1–4). Petitioner contends upon listening to the original tape, he discovered that trial

counsel could have challenged the admissibility of the tape on authenticity grounds, and on the

ground that Petitioner was not properly advised of his Miranda rights. Additionally, appellate

counsel could have challenged the trial court’s denial of his motion to suppress, on the ground that

Petitioner was not properly advised of his right to speak with an attorney before questioning.

The undersigned concludes Petitioner failed to show that the factual predicate of each these

claims could not have been discovered through the exercise of due diligence prior to the date his

conviction became final, on August 21, 2008. Petitioner was aware prior to trial that the tape the

State intended to publish to the jury was an altered version of the original. During the hearing on

the defense’s motion to suppress, which occurred ten (10) days prior to trial and which Petitioner

personally attended, the parties agreed that certain portions of the interview would be redacted at

3

 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 5 of 13
Page 6 of 13

trial (see Ex. B). The redactions are evident when the transcript of the interview (submitted as an

exhibit at the suppression hearing but not at trial) is compared to the transcription of the tape

published to the jury (compare Ex. C at 1 with Ex. E at 149; compare Ex. C at 16–17 with Ex. E at

167, compare Ex. C at 33–48 with Ex. E at 187). Petitioner was thus aware that the trial tape was

an altered version of the original. At the conclusion of the suppression hearing, defense counsel

informed the court, “[T]he State’s going to have the actual tape available for us. Mr. Scott wants

to hear that.” (Ex. B at 37–38). Petitioner could have discovered each variation in the original tape

and the trial tape by exercising diligence in comparing the two. Additionally, with regard to any

discrepancy in the Miranda advisory reflected in the trial tape and the advisory he actually received

during the interview, Petitioner had personal knowledge of the advisory given during the actual

interview, because he was present at the interview. Further, the record contains a written advisory

and waiver signed by Petitioner the day he was interviewed (Ex. D). Therefore, prior to trial,

Petitioner was aware, or could have been aware with due diligence, of the rights advisory he actually

received at the interview and, upon the tape being played at trial, he was aware of any differences

between the two. 

Moreover, it is important to note that § 2244(d)(1)(D) expressly contemplates the discovery

of the “factual predicate” of each habeas claim, not possession of evidentiary support for those

claims. As previously discussed, the factual predicate of each of Petitioner’s claims concerning the

audio tape could have been discovered with due diligence prior to the date his conviction became

final, even though the evidentiary support for those claims may not have been available then. 

Therefore, Petitioner failed to demonstrate that § 2244(d)(1)(D) is the appropriate statutory trigger

for the limitations period. The undersigned thus concludes that the appropriate trigger for the federal

limitations period is the date Petitioner’s conviction became final, pursuant to § 2244(d)(1)(A). 

As previously discussed, Petitioner’s conviction became final on August 21, 2008. The

statute of limitations began to run on August 22, 2008, the day after the 90-day period expired. See

Wainwright v. Sec’y, Dep’t of Corr., 537 F.3d 1282, 1283–84 (11th Cir.2007) (citing Fed. R. Civ.

P. 6(a)); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (Rule 6 applies to

calculation of one-year statute of limitations under AEDPA). Petitioner had one year from that date,

or until August 22, 2009, to file his § 2254 petition. See Downs v. McNeil, 520 F.3d 1311, 1318

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 6 of 13
Page 7 of 13

(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 this case, on May 18, 2009, after 269 days of the federal limitations

period elapsed, Petitioner filed a motion to correct sentencing error, pursuant to Rule 3.800(b)(2). 

Respondent concedes this was a tolling motion (doc. 26 at 4). The motion was pending until June

28, 2009, upon expiration of Petitioner’s time to appeal the state circuit court’s decision denying the

motion. The federal limitations period then ran 96 days until it expired on October 2, 2009 (269 +

96 = 365). 

Petitioner argues he is entitled to equitable tolling of the limitations period (doc. 13 at 21–27;

doc. 29 at 1–5). A petitioner is entitled to equitable tolling 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 v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005))

(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

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 7 of 13
Page 8 of 13

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, 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).

Petitioner identifies two “extraordinary circumstances” which he argues entitle him to

equitable tolling of the limitations period (doc. 13 at 21–27; doc. 28 at 1–4; doc. 29 at 1–5). First,

he contends he suffers from a “mental disorder that has had a great effect on his understanding of

the procedures of this court” and the AEDPA’s federal limitations period (doc. 13 at 21, 25). 

Mental impairment is not per se a reason to toll the statute of limitations. See Hunter, 587 F.3d at

1309–10. Rather, the alleged mental impairment must have affected the petitioner’s ability to file

a timely habeas petition. Id.; see also Lawrence, 421 F.3d at 1226–27. In other words, the petitioner

must demonstrate a causal connection between his delay and his intellectual disability. Hunter,

supra; Lawrence, supra.

In the instant case, unlike in Hunter, the record contains no evidence probative of Petitioner’s

alleged mental disorder. Further, Petitioner failed to demonstrate a causal connection between any

alleged disorder and the untimely filing of his federal petition. His conclusory assertion that he is

unable to understand and appreciate federal law and procedure due to an unspecified “mental

disorder” is wholly insufficient to demonstrate entitlement to equitable tolling. Therefore, he is not

entitled to equitable tolling due to an alleged mental disorder. See Lawrence, 421 F.3d at 1226–27

(petitioner’s claim that he had suffered from mental impairments his entire life, without more, is

insufficient to justify equitable tolling); see also, e.g., Fox v. McNeil, 373 Fed. Appx. 32, 34, 2010

WL1407234, at *2 (11th Cir. 2010) (unpublished) (petitioner’s alleged mental incompetence did not

warrant equitable tolling of AEDPA’s one-year limitations period for filing a petition for writ of

habeas corpus; petitioner was able to file several pro se motions in state court for post-conviction

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 8 of 13
Page 9 of 13

relief, he ultimately filed a habeas petition, and he failed to establish a causal link between his

claimed mental incompetence and the untimely filing of the petition).4

The second “extraordinary circumstance” identified by Petitioner is the fact that he did not

obtain actual possession of the original audio tape of his interview with police until September 30,

2009 (doc. 13 at 21, 25). Petitioner states he made the following efforts to obtain the tape, and he

submits documentation of these efforts. On October 19, 2007, he requested depositions and

investigative reports from his trial counsel, Mr. Stokes, but Mr. Stokes failed to provide information

from Petitioner’s file until after Petitioner filed a complaint with the Florida Bar, on July 10, 2008

(see doc. 28-1 at 14, 15, 19). However, in this request, Petitioner made no mention of an audio tape

(id.).5

 Petitioner states on July 21, 2008, he asked a relative to contact the state circuit court to

request the tape, but with “negative results” (doc. 13 at 21). He states on October 27, 2008, he again

asked a relative to request the tape from the court, but with “negative results” (id.). He states he

personally requested the tape from the State Attorney’s Office, and was advised by that office on

January 27, 2009, that the tape was not in their file (see doc. 13 at 21; doc. 28-1 at 16). The State

Attorney’s Office suggested Petitioner request the tape from the Escambia County Sheriff’s Office

or the Criminal Division of the Clerk of Court (id.). On February 9, 2009, Petitioner requested the

tape from the Clerk of Court and was advised by that office on February 10, 2009, that the tape was

not in the file (see doc. 13 at 22; doc. 28-1 at 17). The Clerk of Court advised Petitioner to contact

the agency that took the statement (id.). Petitioner contacted the Escambia County Sheriff’s Office

and was advised by that office on February 25, 2009, that he would be notified of the cost of

compiling and copying the requested information, and on March 12, 2009, Petitioner was advised

that the cost of the audio tape was $2.10 (doc. 13 at 22; doc. 28-1 at 18, 23). On March 19, 2009,

Petitioner requested a withdrawal of funds from his inmate account to pay for the tape (doc. 28-1

at 24). In May of 2009, Petitioner filed a motion to compel/petition for mandamus in the state

circuit court, seeking an order requiring the State Attorney’s Office to provide him the tape (id. at

4

 The undersigned cites Fox only as persuasive authority and recognizes that the opinion is not considered

binding precedent. See 11th Cir. R. 36-2. 

5

 Petitioner subsequently complained to the Florida Bar that Mr. Stokes failed to provide the audio tape, but Mr.

Stokes responded that his file did not contain an audio tape (see doc. 28-1 at 19, 27).

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 9 of 13
Page 10 of 13

6–12). On September 21, 2009, the state court issued an order directing the Sheriff’s Office to show

cause, within thirty days, why Petitioner was not entitled to a copy of the tape (id. at 2–4). The

Sheriff’s Office responded that it provided the tape to Petitioner on August 19, 2009, and provided

a second tape on September 30, 2009, after Petitioner complained that the first tape was

undecipherable (doc. 13 at 22; doc. 28-1 at 29–32). Petitioner concedes he received the second

audio tape on September 30, 2009, but asserts he was delayed in actually listening to it, due to

institutional procedures that had to be followed to facilitate his listening to it (doc. 29 at 1–3). He

states he then required time to prepare a Rule 3.850 motion, which he filed on November 17, 2009

(doc. 13 at 22).

 Initially, Petitioner’s submissions demonstrate he did not make reasonably diligent efforts

to obtain the tape until January or 2009, after five (5) months of the federal limitations period had

expired. He did not mention the tape in his letter to Mr. Stokes prior to that, and his asking a relative

to contact the court, instead of his doing so directly, does not show reasonable diligence in

attempting to obtain the tape.

Further, Petitioner failed to demonstrate a causal connection between his lack of possession

of the tape and the late filing of his federal habeas petition. As previously discussed, the factual

predicate for Petitioner’s claims concerning the audio tape (that is, that trial counsel was ineffective

for failing to challenge the admissibility of the tape on grounds of lack of authenticity and that

Petitioner was not properly advised of his Miranda rights; and that appellate counsel was ineffective

for failing to challenge the trial court’s denial of the motion to suppress on the ground that Petitioner

was not properly advised of his Miranda rights) was available to Petitioner before his conviction

became final in August of 2008. At any time thereafter, he could have filed a Rule 3.850 motion

asserting these claims and the existence of evidentiary support for these claims, and he could have

filed the motion to compel production of the original tape with his Rule 3.850 motion. This would

have tolled the federal limitations period. Instead, Petitioner filed only the motion to compel, and

he waited to do so until May of 2009. He then waited until November of 2009 to file his Rule 3.850

motion.

Additionally, during the time Petitioner was seeking a copy of the audio tape, he was aware

that he had a federal deadline, as evidenced by the fact that he submitted to this federal court, on

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 10 of 13
Page 11 of 13

March 31, 2009, a “Motion to Toll and/or Enlarge or Extend Procedural Deadline.” See Scott v.

State, Case No. 3:09cv328/MCR/EMT, Doc. 1-3. On April 6, 2009, the clerk of court apparently

returned the motion to Petitioner unfiled, because Petitioner placed his state court case numbers in

the style of the case and had no federal case pending at the time. See id., Docs. 1-2, 1-3. The clerk

instructed Petitioner to resubmit the document with the appropriate federal case number, or send it

to the state court for filing in the appropriate case. See id., Doc. 1-2. Nearly four months later, on

July 31, 2009, Petitioner re-submitted the motion to this court with a notice to clerk stating he

intended to commence a federal habeas action by filing the motion. See id., Doc. 1-2. Petitioner

also submitted an motion to proceed in forma pauperis, which he had not done when he previously

attempted to file the motion. The clerk of court opened a habeas case and assigned Case No.

3:09cv328/MCR/EMT. See id., Doc. 1. On August 7, 2009, upon referral of the case to the

undersigned, the undersigned issued an order denying the motion as premature and directing

Petitioner to file a habeas petition within thirty days on the court approved-form provided by the

clerk. See id., Doc. 5. The undersigned expressly admonished Petitioner, “Due to the one-year time

limitation, Petitioner should file his petition as quickly as possible.” Id. Petitioner failed to comply

with the order and did not submit his petition until November 18, 2009, over two months after the

deadline set in the order, and over one month after the one-year federal limitations period expired. 

See id., Doc. 16. Petitioner conceded in the petition that he had not exhausted his state court

remedies as to any of his claims and was currently pursuing his claims in state court. See id. 

However, he did not request a stay of the federal case. On November 19, 2009, the undersigned

recommended dismissal of the case without prejudice based upon Petitioner’s failure to exhaust his

state court remedies. See id., Doc. 17. Petitioner did not object to the Recommendation, and the

district court adopted it on December 3, 2009, and dismissed the case.6

 See id., Doc. 18.

Petitioner has not explained why he waited four months, until July 31, 2009, to re-submit his

“Motion to Toll and/or Enlarge or Extend Procedural Deadline” to this court with instructions that

he intended to initiate a federal habeas case. He has also not explained why he did not comply with

6

 It is worth mention that a federal post-conviction application does not qualify for statutory tolling under

§ 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 181–82, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001).

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 11 of 13
Page 12 of 13

this court’s order issued August 7, 2009, providing him with the federal petition form and directing

him to file a federal petition within thirty days. Had he done so and accompanied his petition with

a motion for stay or abeyance, to allow him to present his unexhausted claims to the state court in

the first instance, pursuant to Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440

(2005), his federal petition would have been timely. Petitioner has failed to demonstrate that his

lack of possession of the tape actually prevented him from timely filing his federal habeas petition. 

Therefore, he is not entitled to equitable tolling of the limitations period due to this delay. 

III. CONCLUSION

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

considering the tolling effect of properly filed applications for state post-conviction relief filed prior

to expiration of the federal limitations period. Further, Petitioner failed to carry his burden of

demonstrating he is entitled to equitable tolling of the limitations period. Therefore, the § 2254

petition should be dismissed with prejudice as untimely.

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 ORDERED:

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 12 of 13
Page 13 of 13

Petitioner’s “Motion for Reconsideration of Jurisdiction Notice and Additional Facts” (doc.

28), construed as a motion to consider the arguments included therein and the exhibits attached

thereto, is GRANTED ONLY TO THE EXTENT THAT the court has considered the arguments

and exhibits in determining whether Respondent’s motion to dismiss should be granted. 

And it is respectfully RECOMMENDED:

1. That Respondent’s motion to dismiss (doc. 26) be GRANTED.

2. That the amended petition for writ of habeas corpus (doc. 13) be DISMISSED with

prejudice as untimely. 

3. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 15th day of March 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).

Case No.: 3:11cv64/WS/EMT

Case 3:11-cv-00064-WS-EMT Document 31 Filed 03/15/12 Page 13 of 13