Dennis Pollock v. Secretary, Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13512
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-01153-VMC-TGW
DENNIS POLLOCK,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 5, 2016)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
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Florida prisoner Dennis Pollock, proceeding pro se, appeals the dismissal of
his federal habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, as time-
barred. A certificate of appealability was issued on the following question:
“[w]hether the district court erred in determining that Pollock’s § 2254 petition for
a writ of habeas corpus was untimely under 28 U.S.C. § 2244(d).” Pollock
contends the district court erred in dismissing his petition as untimely because
equitable tolling should have applied. Specifically, he asserts that, under the
Florida Rules of Judicial Administration, he had a reasonable expectation he would
be notified once a decision was rendered in his appeal from the state court’s denial
of his second amended Florida Rule of Criminal Procedure 3.850 motion, but he
did not receive such notification. He further contends he exercised due diligence
in pursuing his case when he filed a Notice of Inquiry with the state appellate court
one year and five months after he initiated the appeal. After review,1 we affirm the
district court.
I. DISCUSSION
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides for a
one-year limitations period in which a state prisoner must file an application for a
1 We review de novo a district court’s dismissal of a habeas petition as untimely under
§ 2244(d). Day v. Hall, 528 F.3d 1315, 1316 (11th Cir. 2008). We also review de novo a district
court’s decision on equitable tolling. San Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir.
2011). Factual findings, including findings regarding a party’s diligence, are reviewed for clear
error and will be affirmed unless the record lacks substantial evidence to support them. Id.
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writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The one-year period begins to run
from the latest of one of four triggering events, including, in relevant part, “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). Once the
statute of limitations is triggered, it can be tolled in two ways, by statutory tolling
or by equitable tolling. Spottsville v. Terry, 476 F.3d 1241, 1243-46 (11th Cir.
2007).
A. Statutory tolling
Statutory tolling allows state prisoners to toll the limitations period while
“properly filed” state post-conviction actions are “pending” in state court. 28
U.S.C. § 2244(d)(2). To toll the one-year limitation period under § 2244(d)(2), a
proceeding must be a “properly filed application for State post-conviction or other
collateral review” of the relevant judgment or claim. Espinosa v. Sec’y, Dep’t of
Corr., 804 F.3d 1137, 1140 (11th Cir. 2015) (quoting 28 U.S.C. § 2244(d)(2)).
“An application is filed when it is delivered to, and accepted by, the appropriate
court officer for placement into the official record, and it is properly filed when its
delivery and acceptance are in compliance with the applicable laws and rules
governing filings.” Id. (quotations omitted). A state-court petition for a belated
appeal does not trigger a re-examination of a conviction or sentence, and, thus,
does not toll the federal statute-of-limitations period. Id. at 1142.
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The district court correctly determined that Pollock’s federal habeas petition
was untimely because it failed to meet the one-year statute of limitations required
under AEDPA. See 28 U.S.C. § 2244(d)(1). As the district court found, Pollock’s
time began to run on February 17, 2012—30 days after judgment and sentence
were rendered. Pollock’s first Rule 3.850 motion, filed 87 days after his time
began to run, tolled 278 remaining days in which to file a federal habeas petition.
Pollock’s time began to run again on June 14, 2012, when that motion was
dismissed as facially insufficient. Pollock’s subsequent amended Rule 3.850
motion tolled no time because it was not properly sworn, and thus not “properly
filed” within the meaning of the statute. Accordingly, 36 additional days passed
before Pollock’s second amended Rule 3.850 motion, filed July 20, 2012, again
tolled his time, leaving him 242 remaining days in which to file a federal habeas
petition. His time began to run again on July 3, 2013, when a mandate was issued
by the state appeals court, rendering his final deadline to file March 3, 2014. The
district court correctly noted that Pollock’s petition for a belated appeal, filed after
his second amended Rule 3.850 motion, did not toll his time under this Court’s
precedent. See Espinosa, 704 F.3d at 1141. Accordingly, his federal habeas
petition, dated May 9, 2014, was untimely.
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B. Equitable tolling
Equitable tolling allows state prisoners to toll the statute of limitations based
on extraordinary circumstances that are both beyond their control and unavoidable
even with diligence. San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).
Establishing a right to equitable tolling requires a petitioner to show “(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). Equitable tolling only applies in “truly extraordinary
circumstances.” Johnson v. United States, 340 F.3d 1219, 1226 (11th Cir. 2003)
(involving a 28 U.S.C. § 2255 motion). The appellant bears the burden of
establishing his entitlement to equitable tolling. Id.
In Johnson, the appellant was not entitled to equitable tolling where he took
no action during the one-year grace period after the AEDPA’s effective date, and
did not file a state collateral attack until almost two years after his conviction was
affirmed on appeal. Id. at 1228. In San Martin, we determined that equitable
tolling was not appropriate where the appellant argued that he did not receive
notice of the Supreme Court’s denial of his petition for writ of certiorari until the
denial was docketed in the Florida Supreme Court two weeks later. San Martin,
633 F.3d at 1268. Specifically, we determined that San Martin failed to show due
diligence because he failed to show that he made any effort to contact the Supreme
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Court to inquire about his case, that anyone had agreed to contact him regarding
the final disposition, or that the Florida Supreme Court docket was a better source
of information about a Supreme Court ruling than the Supreme Court’s docket
would have been. Id. at 1270. Moreover, we noted that San Martin also failed to
explain why he waited 349 days after the Supreme Court’s judgment appeared on
the Florida Supreme Court docket to file a post-conviction motion, and then waited
another 15 days after the disposition of that post-conviction motion to file his
federal habeas petition. Id. By contrast, in Knight v. Schofield, we determined that
the petitioner was entitled to equitable tolling where the Supreme Court of Georgia
assured him it would notify him when a decision was made, but sent the
notification to the wrong person, and he exercised diligence in inquiring about the
decision after 15 months had passed. 292 F.3d 709, 711 (11th Cir. 2002). We
noted in Knight, however, that a petitioner was not necessarily entitled to equitable
tolling until he receives notice because “[e]ach case turns on its own facts.” Id.
The district court did not clearly err in finding that Pollock failed to
demonstrate due diligence, and, thus was not entitled to equitable tolling. As an
initial matter, Pollock’s assertion the state appellate court failed to provide notice
of its decision as mandated by Florida Rules of Judicial Administration was not
refuted. The district court accepted as true Pollock’s assertions of inadequate
notice in making its due-diligence determination. Even assuming the state court’s
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failure to provide notice was an “extraordinary circumstance” beyond Pollock’s
control, it does not support Pollock’s claim the district court clearly erred in
determining he failed to show he pursued his claims with due diligence. See San
Martin, 633 F.3d at 1267. Indeed, Pollock does not dispute the district court’s
finding he failed to inquire about the status of his state-court appeal of his second
amended Rule 3.850 motion until March 17, 2014—17 months after filing his
initial brief. Rather, Pollock argues his single inquiry, along with his general
record of timely filings in post-conviction proceedings, provided sufficient
evidence of his due diligence.
Pollock’s single inquiry is insufficient to show diligence. Pollock’s case is
distinguishable from San Martin and Johnson because Pollock showed he made
one attempt to ascertain the status of his second amended motion, and, taking his
assertion as true, the state court failed to contemporaneously notify him of the
decision, as it was required to do. See San Martin, 633 F.3d at 1268; Johnson, 340
F.3d at 1228. However, this case is also distinguishable from Knight because, first,
Pollock waited longer to inquire about the status of his motion than the appellant in
Knight, and second, Pollock received no personal assurances from the court that it
would promptly inform him of a decision, but instead relied on generally
applicable state administrative rules that mandate notification. See Knight, 292
F.3d at 711. This Court specifically noted in Knight that a petitioner is not
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necessarily entitled to equitable tolling until he receives notice because each case is
fact specific. See Knight, 292 F.3d at 711.
Pollock has not provided evidence to counter the district court’s findings,
nor has he provided an explanation for his lengthy delay in inquiring other than his
reliance on the court’s general rules regarding notification. Additionally, the state
court’s quick response to his inquiry supports the circumstances were not out of
Pollock’s control, if only he had inquired sooner. Pollock has not demonstrated the
district court clearly erred in its due-diligence determination, and thus, he was not
entitled to equitable tolling. See San Martin, 633 F.3d at 1267.
II. CONCLUSION
The district court’s dismissal of Pollock’s §2254 petition as time barred is
AFFIRMED.
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