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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

RONALD M. MAXEY,

Petitioner,

v. CASE NO. 5:11-cv-106-RS-GRJ

SECRETARY, FLORIDA 

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________/

REPORT AND RECOMMENDATION

Petitioner, an inmate in the custody of the Florida Department of Corrections

(“FDOC”), initiated this case by filing a pro se petition for writ of habeas corpus under

28 U.S.C. § 2254 on April 6, 2011. (Doc. 1.) The case is presently before the Court on

Respondent’s motion to dismiss based upon expiration of the one-year limitation period. 

(Doc. 10.) Petitioner filed a response to the motion to dismiss (Doc. 13) and therefore

this matter is ripe for review. For the following reasons, it is recommended that the

motion to dismiss be granted.

One-Year Limitation Period

Petitioners whose convictions became final after the effective date of the AEDPA

have a one-year period within which to seek federal habeas corpus review of their

convictions. 28 U.S.C. § 2244(d). The one-year limitations period begins to run, inter

alia, 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[.]” Id. § 2244(d)(1)(A). The

one-year limitations period is statutorily tolled during the pendency of a properly-filed

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state application for post conviction relief, and may be equitably tolled in appropriate

“extraordinary circumstances.” Id. § 2244(d)(2); Steed v. Head, 219 F.3d 1298, 1300

(11 Cir. 2000). th

Background

Petitioner was charged in September 2007 in the Circuit Court for the Fourteenth

Judicial Circuit in and for Jackson County, Florida (the “state court”) with five counts of

sale or delivery of a controlled substance (crack cocaine), one count of possession of a

controlled substance with intent to sell or deliver the controlled substance (crack

cocaine), and one count of possession of a firearm by a convicted felon. (Doc. 11 Exh.

A at 1-6.) Petitioner entered a plea of nolo contendere to the charges on April 22,

2008. (Id. at 7-8.) Petitioner was convicted and sentenced to ten years imprisonment

on the charges and judgment was entered on April 23, 2008. (Id. at 7-18.)

On August 27, 2008 Petitioner filed a motion for postconviction relief pursuant to

Fla. R. Crim. P. 3.850 in the state court, which the state court denied on October 15,

2008. (Exh. B.) On November 20, 2008 Petitioner filed a motion to correct illegal

sentence under Fla. R. Crim. P. 3.800, which the state court denied on December 5,

2008. (Exh. C.) 

Petitioner then filed what was styled as his amended Rule 3.850 motion for

postconviction relief on December 1, 2009. (Exh. D at 1-29.) The state court struck the

motion as facially insufficient on December 10, 2009. (Id. at 30-31.) Petitioner refiled

the amended Rule 3.850 motion on December 13, 2009. (Id. at 32-60.) Four of the

seven grounds in the amended Rule 3.850 motion were denied with prejudice by the

state court on February 23, 2010 and the state was directed to respond to the other

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three grounds in the same order. (Id. at 88-90.) 

Petitioner then filed what was styled as his second Rule 3.850 motion in the state

court on March 3, 2010. (Id. at 107-25.) He then filed a motion to supplement/amend

his second Rule 3.850 motion on April 15, 2010. (Exh. E at 195-96.) The state court

denied the remaining three grounds in his amended Rule 3.850 motion and his second

Rule 3.850 motion in the same order entered August 5, 2010. (Exh. F at 313-17.) On

August 19, 2010, Petitioner appealed the denial of his amended Rule 3.850 motion and

his second Rule 3.850 motion to the First District Court of Appeal, which affirmed per

curiam without a written opinion on February 9, 2011. (Id. at 512-14; Exh. J.) Petitioner

then filed a motion for clarification and certification with the appellate court on February

24, 2011, which was denied by the First District Court of Appeal on March 21, 2011.

(Exhs. I and J.) The mandate issued on April 6, 2011. (Exh. PD-2.) Petitioner filed the

instant Petition for Writ of Habeas Corpus on April 6, 2011 by handing it to prison

officials for mailing. (Doc. 1.)

Respondent’s Motion to Dismiss

Respondent filed a motion to dismiss the petition on October 19, 2011, arguing

that Petitioner did not timely file his federal petition for a writ of habeas corpus within the

1-year deadline, as required by 28 U.S.C. § 2244(d)(1). Respondent contends that

more than one year elapsed between the time Petitioner’s state court convictions

became final and when he filed the instant Petition. (Doc. 10.)

In his response to the motion to dismiss, Petitioner contends he should be entitled

to equitable tolling of the one year limitations period because he was denied adequate

access to the law library at several Florida Department of Corrections facilities. (Doc.

13.)

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Discussion

Petitioner’s conviction became final on or about May 23, 2008, when the 30 day

period for filing a direct appeal from the April 23, 2008 judgment of his convictions

pursuant to Fla. R. App. P. 9.110(b) expired. (Exh. A at 9-19.) The record reflects that

Petitioner sought no further relief in state court from May 24, 2008 until August 27, 2008,

95 days later, when he filed his first Rule 3.850 motion, which the state trial court denied

on October 15, 2008. Petitioner did not appear the denial of his motion. (Exh. B.) 

Accordingly, 95 days of Petitioner’s one year statute of limitations period elapsed

between May 24, 2008 and August 27, 2008.

Petitioner did not appeal the denial of his first Rule 3.850 motion and, accordingly,

the denial of that motion became final 30 days later on November 14, 2008 pursuant to

Fla. R. App. P. 9.110(b). Petitioner then filed his motion to correct an illegal sentence on

November 20, 2008, 5 days after the denial of his first Rule 3.850 motion became final. 

(Exh C.) The state court denied the motion to correct an illegal sentence on December

8, 2008. (Id.) Accordingly, a further 5 days of Petitioner’s one year statute of limitations

period elapsed between November 15, 2008 and November 20, 2008.

Petitioner did not appeal the denial of his motion to correct illegal sentence and,

accordingly, the denial of that motion became final 30 days later on January 7, 2009

pursuant to Fla. R. App. P. 9.110(b). Petitioner’s next filing in the state court took place

on December 1, 2009, when he filed what he styled as his amended Rule 3.850 motion.

(Exh. D at 1-29.) 327 days elapsed between January 8, 2009 and December 1, 2009,

all of which count towards Petitioner’s one year statute of limitations period.

The Petition clearly is time-barred. Four hundred twenty-seven (427) days

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passed between May 23, 2008, the date his convictions became final for AEDPA

purposes, and April 6, 2011, when he filed the instant Petition. The total is derived from

the following events. Ninety-five (95) days passed between the date Petitioner’s

convictions became final and the date he filed his first Rule 3.850 motion. Five (5) days

passed between the date the denial of his first Rule 3.850 motion became final and the

date he filed his motion to correct illegal sentence. A further 327 days passed between

the date the denial of his motion to correct illegal sentence became final and the date

Petitioner filed his amended Rule 3.850 motion. In total 427 days of the one year statute

of limitations period passed before Petitioner filed the instant Petition. 

Petitioner argues that he is entitled to equitable tolling of AEDPA’s one year

limitations period because he was incarcerated at several FDOC facilities at which he

was denied adequate access to the law library. This is not a valid cause for failing to file

the Petition within AEDPA’s one year statute of limitations period as “neither an alleged

inadequate prison law library, nor limited access to the library establishes extraordinary

circumstances warranting an equitable tolling of the limitation period.” Knight v. Sec’y,

Dep’t of Corrections, No. 5:09-cv-533-Oc-29-DNF, 2011 WL 3349042, at *4 (M.D. Fla.

Aug. 3, 2011); Paterson v. McDonough, No. 4:06-cv-138-WS-WCS, 2007 WL 1577859,

at *4-*6 (N.D. Fla. May 31, 2007)(no access to a law library did not entitle the section

2254 petitioner to equitable tolling). The petition is therefore due to be dismissed as

time-barred.

Conclusion

For the foregoing reasons it is respectfully RECOMMENDED that:

1. Respondent’s motion to dismiss (Doc. 10) should be GRANTED.

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2. The Petition for a Writ of Habeas Corpus (Doc. 1) should be DISMISSED with

prejudice as untimely.

IN CHAMBERS in Gainesville, Florida this 22 day of June 2012. 

nd

 s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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