JONES v. DIXON

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
ANDREW BERNALL JONES,
Petitioner,
v. 	Case No. 1:25cv208-TKW-HTC
RICKY D. DIXON,
Respondent.
______________________________/
REPORT AND RECOMMENDATION
Petitioner Andrew Bernall Jones, proceeding pro se, filed a petition under 28
U.S.C. § 2254, challenging a judgment and sentence rendered in Alachua County
Circuit Court Case Number 2016-CF-2107. Doc. 1. The Secretary moved to dismiss
the petition as untimely (Doc. 8) and Jones filed a response (Doc. 10). 	Upon
consideration, the Secretary’s Motion to Dismiss should be GRANTED, and the
petition should be dismissed with prejudice as untimely.
I. 	Background
On May 3, 2018, a jury found Jones guilty of attempted murder in the first
degree, three (3) counts of robbery with a firearm, and possession of a firearm by a
convicted felon. Doc. 8-2 at 79-85. The circuit court gave Jones a life sentence for
the attempted murder and robbery charges and sentenced him to 15 years for the
possession of a firearm charge, to run consecutive to the other sentence and to a
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federal sentence. 	Id. at 86-98. Jones appealed the conviction and judgment to the
First District Court of Appeal (“First DCA”), which affirmed without opinion on
June 20, 2019. Jones v. State, 274 So. 3d 339 (Fla. 1st DCA 2019); Doc. 8-2 at 100.
Jones filed the instant federal petition on July 14, 2025. Doc. 1.
II. 	Discussion
The Secretary moves to dismiss the petition as untimely, arguing that Jones’s
one-year time limit under 28 U.S.C. § 2244(d)(1) expired on May 10, 2021. Doc. 8.
Jones does not dispute that the petition is untimely;1 instead, he argues he is entitled
to equitable tolling. Doc. 10.
Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a
federal habeas petition must be filed within one year from certain trigger dates. 28
U.S.C. § 2244(d)(1). 	For purposes of this report, the relevant trigger date is “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 limitations
1 Jones’s conviction became final on September 19, 2019, ninety (90) days after the First DCA
affirmed his conviction. Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (conviction becomes
final under § 2254(d)(1)(A) when the 90 days to file a petition for a writ of certiorari in the United
States Supreme Court expires). Jones filed his first post-conviction motion that tolled the AEDPA
period on March 12, 2020. Doc. 8-2 at 67. By that time, 175 days had run off the AEDPA clock.
That motion tolled the deadline until it was fully resolved on October 29, 2020. Id. at 109. The
AEDPA clock began running the next day and expired 190 days later, on May 10, 2021, before
Jones filed another post-conviction motion.
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period is tolled for the time during which a “properly filed” application for relief is
pending in state court. Id. § 2244(d)(2).
The one-year period may be equitably tolled “if a petitioner establishes both
extraordinary circumstances and due diligence.” 	Diaz v. Sec'y for Dep't of Corr.,
362 F.3d 698, 702 (11th Cir. 2004). Equitable tolling applies only where a petitioner
“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, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)). Because equitable tolling constitutes “‘an extraordinary remedy,’ it ‘is
limited to rare and exceptional circumstances’ and ‘typically applied sparingly.’”
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (per curiam) (quoting
Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), aff'd, 549 U.S. 327
(2007)).
Furthermore, the “extraordinary circumstances” must be “both beyond [a
petitioner’s] control and unavoidable even with diligence.” 	Johnson v. United
States, 340 F.3d 1219, 1226 (11th Cir. 2003). Courts focus “on the circumstances
surrounding the late filing of the habeas petition and not on the circumstances of the
underlying conviction, and whether the conduct of others prevented the petitioner
from timely filing” his habeas petition. Arthur v. Allen, 452 F.3d 1234, 1253 (11th
Cir. 2006) (internal quotation marks and citations omitted). 	“In proving an
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‘extraordinary circumstance,’ a petitioner must ‘show a causal connection between
the alleged extraordinary circumstances and the late filing of the petition.’” Moore
v. Frazier, 605 F. App’x 863, 866 (11th Cir. 2015) (per curiam) (quoting San Martin
v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011)). “The petitioner has the burden of
proving that circumstances justify applying the equitable-tolling doctrine.” 	Id.
(citing San Martin, 633 F.3d at 1268)
Jones argues he is entitled to equitable tolling because: (1) he is a layman in
the law; (2) he is housed in maximum management housing with little to no access
to the law library; and (3) his legal file was lost by the department of corrections
during a mental health crisis from September 3, 2019, to March 25, 2021. Doc. 10
at 1-2. These circumstances do not justify equitable tolling in this case.
First, the fact that Jones is a layman in the law and has limited access to the
law library are not “rare and exceptional circumstances” preventing him from timely
filing. 	See e.g., Fonseca v. McNeil, 2009 WL 196095 (S.D. Fla. Jan. 27, 2009)
(“Fonseca’s status as an unskilled layperson does not excuse the delay. Such factors
are also not considered extraordinary circumstances or external factors that may
excuse the many and oftentimes complex procedural requirements a prisoner
encounters when seeking federal habeas corpus relief.”). Indeed, because these are
obstacles faced by virtually every incarcerated unrepresented habeas petitioner, the
statute of limitations would be gutted if the Court were to apply equitable tolling on
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that basis. 	See e.g., Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.2000), cert.
denied, 534 U.S. 863 (2001) (lack of legal knowledge or legal resources, even in a
case involving a pro se inmate, does not warrant equitable tolling).
Second, even accepting that Jones’s legal materials were lost between
September 2019 to March 2021, he has not shown the lack of those materials
prevented him from filing a timely habeas petition. 	Jones does not identify, for
example, what legal materials he needed to file a petition. Indeed, the docket sheet
for Jones’s underlying criminal case shows that Jones filed a myriad of motions and
correspondence with the state court from September 2019 to May 2021. Moreover,
the exhibit Jones attaches to his response shows he grieved the issue sometime in
late 2019 or early 2020. Doc. 10 at 5. Although the grievance was approved, and
Jones’s grievance was referred to Risk Management, Jones submitted a second
formal appeal on January 2, 2021, contending he had still not received his materials.
It is not clear why Jones waited a year to seek the materials again or what the
response was in 2021. Regardless, he still had more than four (4) months remaining
from January 2021 to file a habeas petition and could have requested documents
from the circuit and appellate courts.
For the reasons stated above, Jones has not shown that he is entitled to
equitable tolling. He fails to meet his burden of proving “that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way’
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and prevented timely filing.” 	Holland, 560 U.S. at 649. 	This is not the “rare”
circumstance warranting equitable tolling.
III. 	Conclusion
Because the petition is untimely and equitable tolling is inapplicable, the
petition should be dismissed with prejudice.
The undersigned also finds that an evidentiary hearing is not warranted. 	In
deciding whether to grant an evidentiary hearing, this Court must consider “whether
such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” 	Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). Here, whether the petition is untimely does
not turn on any contested factual issue. 	Therefore, an evidentiary hearing is not
warranted because it would not assist in determining whether Petitioner is entitled
to relief.
Also, no certificate of appealability is appropriate in this case. Rule 11(a) of
the Rules Governing Section 2254 Cases in the United States District Courts
provides: “[t]he district court must issue or deny a certificate of appealability when
it enters a final order 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).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be
filed, even if the court issues a certificate of appealability. 28 U.S.C. § 2254 Rule
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11(b). 	After review of the record, the Court finds no substantial showing of the
denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-
84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it
is also recommended that the district court 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.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to
this recommendation by either party, that party may bring such argument to the
attention of the district judge in the objections permitted to this Report and
Recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. 	That the Motion to Dismiss (Doc. 8) be GRANTED and the Petition
(Doc. 1) be DISMISSED WITH PREJUDICE as untimely.
2. 	That a certificate of appealability be DENIED.
3. 	That the clerk be directed to close the file.
At Pensacola, Florida, this 15 th day of December, 2025.
s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
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NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within
fourteen (14) days of the date of the Report and Recommendation. Any different
deadline that may appear on the electronic docket is for the court’s internal use only
and does not control. An objecting party must serve a copy of its objections upon
all other parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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