THURSTON v. FLORIDA DEPARTMENT OF CORRECTIONS

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Case No. 4:23cv399-RH-MAF
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
TRAVIS THURSTON,
Petitioner,
v. 	CASE NO. 4:23cv399-RH-MAF
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
_________________________________/
ORDER HOLDING THE PETITION TIMELY
This petition for a writ of habeas corpus under 28 U.S.C. § 2254 is before
the court on the magistrate judge’s report and recommendation, ECF No. 28, and
the objections, ECF No. 29. I have reviewed de novo the issues raised by the
objections.
The report and recommendation concludes the petition is untimely. This
order rejects that conclusion, holds the petition timely, and remands the petition to
the magistrate judge for further processing.
At the relevant times, the petitioner Travis Thurston was an inmate in the
Florida Department of Corrections. He was held at the Moore Haven Correctional
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Case No. 4:23cv399-RH-MAF
Facility (“MHCF”). The critical issue is whether Mr. Thurston delivered the
petition to an MHCF representative for mailing on February 2, 2023, as Mr.
Thurston asserts, or not until September 1, 2023, as the report and recommendation
concludes. If the former, the petition is timely. If the latter, the petition is untimely.
The petition bears this stamp: “Provided to MHCF on 2/2/23 for Mailing,”
followed on the next line by the title of the person apparently responsible for
affixing the stamp, “Institutional Representative.” ECF No. 1 at 1. It is undisputed
that the stamp is authentic and was affixed by the appropriate institutional
representative on February 2, 2023.
The petition did not make it to the court. Having heard nothing in response
to the petition by August, Mr. Thurston followed up, learned the court had not
received the petition, and promptly sent in a copy for filing. His cover letter was
dated August 30, 2023, was stamped by the institutional representative as received
for mailing on September 1, 2023, and was received by the clerk and docketed on
September 11, 2023.
The petition was timely if provided to the institutional representative for
mailing on February 2, 2023, as the stamp says. To its credit, the respondent
Department of Corrections acknowledges it cannot overcome the presumption that
Mr. Thurston delivered the petition to the institutional representative on that date.
But the report and recommendation speculates that Mr. Thurston might have taken
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Case No. 4:23cv399-RH-MAF
the petition to the representative on February 2, had it stamped, forgotten an
envelope or decided not to mail it for some unexplained reason, taken it back, held
onto it for more than six months until it became untimely, made a phony inquiry to
the clerk, and only then mailed it in. This makes little sense.
The most likely explanation is that Mr. Thurston provided the petition to the
institutional representative for mailing, it was stamped, and it didn’t make it to the
docket, having gone missing either at the facility, in the mail, or (less likely) at the
court. Nothing about Mr. Thurston’s position is illogical or strained; the undeniable
fact is that mail sometimes goes astray.
To be sure, the institutional representative says that although the institution
does not maintain a mail log, it does retain copies of envelopes “stamped with the
DOC mail stamp” for use “should there be any dispute when the item was
submitted in the U.S. Mail.” ECF No. 26-1 at 3. But the record casts doubt on
whether this is always done. The record includes copies of envelopes received by
the clerk in this case that have undated institutional stamps, suggesting it is
unlikely the institution retains copies for use in resolving disputes about mailing
dates. See ECF No. 12 at 4; ECF No. 29 at 14. In any event, if the institution keeps
a copy for every piece of legal mail, there must be many thousands; nothing
suggests the institutional representative has gone through all the copies in search of
this one.
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Case No. 4:23cv399-RH-MAF
There is much that is illogical and strained about the position that the
petition was not mailed in until September. Why would Mr. Thurston write the
petition and get it stamped in February but not mail it? Why would he let the
statute of limitations expire, make a phony inquiry, and only then mail in the
petition? Why would the institutional representative stamp the petition but give it
back? The representative’s statement that she “may” stamp a petition for an inmate
who “forgot to include an envelope” seems a poor practice and in any event hardly
qualifies as testimony that that happened here.
This case is substantially different from Jeffries v. United States, 748 F.3d
1310 (11th Cir. 2014). There a defendant filed a timely 28 U.S.C. § 2255 motion.
The issue was whether a supplement raising new claims was timely. The defendant
asserted, without support from a time stamp, that he provided the supplement to an
institutional representative on a date shown on a certificate of service. The
certificate departed from the practice the defendant had followed on the original
motion, and he did not attempt to mail the supplement by certified mail as he had
done on the original motion. The defendant submitted a later filing that one would
have expected to refer to the supplement had it been submitted when the defendant
claimed, but the filing did not mention the supplement, supporting an inference
that the supplement had not existed when the defendant claimed it was provided
for mailing. After an evidentiary hearing, the court found the defendant’s
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testimony on the critical date not credible. None of these circumstances is present
here.
For these reasons,
IT IS ORDERED:
1. The report and recommendation is rejected. The petition is held timely.
2. The case is remanded to the magistrate judge for further proceedings.
SO ORDERED on December 4, 2025.
s/Robert L. Hinkle
United States District Judge
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