COLE v. STATE OF FLORIDA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ROBERT ALAN COLE,
Petitioner,
v. 	Case No. 3:25cv1253-MCR/MAF
STATE OF FLORIDA,
Respondent.
____________________/
REPORT AND RECOMMENDATION
In July 2025, Petitioner Robert Alan Cole, a state inmate proceeding
pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
ECF No. 1. After direction from this Court, ECF No. 3, he filed an amended
petition, ECF No. 5. 	On November 6, 2025, Respondent filed a motion to
dismiss the amended petition, with exhibits. ECF No. 9. Petitioner has filed
a reply. ECF No. 10.
The matter was referred to the undersigned United States Magistrate
Judge for report and recommendation pursuant to 28 U.S.C. § 636 and
Northern District of Florida Local Rule 72.2(B). 	After careful consideration,
the undersigned has determined no evidentiary hearing is required for the
disposition of this matter. 	See Rule 8(a), R. Gov. § 2254 Cases. 	The
pleadings and attachments before the Court show the petition should be
dismissed as untimely.
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Procedural Background
Petitioner Robert Alan Cole challenges his conviction and sentence
entered February 10, 2022, by the Fourteenth Judicial Circuit, Bay County,
Florida, following his entry of a negotiated guilty plea in cases 2021-CF-0581
(Case #1) and 2021-CF-0676 (Case #2). ECF No. 5 at 1-2; ECF No. 9 at 2;
Exs. 1-4.1 In particular, pursuant to the terms of the plea, Cole agreed to
plead guilty to two counts of lewd and lascivious molestation involving two
victims, in exchange for the State not pursuing a charge of sexual battery on
a person less than 12 years old, a more serious offense. 	Ex. 3. 	The state
court 	accepted 	the 	plea 	and 	sentenced 	Cole, 	in 	accordance with 	the
agreement, to 35 years in prison followed by life probation in Case #1 and to
time served in Case #2. Exs. 3-4. Cole did not appeal. On March 11, 2024,
Cole filed a Motion for Postconviction Relief in the state trial court. Ex. 5.
As indicated above, in July 2025, Cole filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in this Court, ECF No. 1, and he
subsequently filed an amended petition, ECF No. 5. On November 6, 2025,
Respondent filed a motion to dismiss the amended petition, with exhibits.
ECF No. 9. Petitioner Cole has filed a reply. ECF No. 10.
1 Hereinafter, all citations to the state court record, “Ex. –,” refer to exhibits submitted with
Respondent’s motion to dismiss, ECF No. 9.
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Analysis
Under the AEDPA, there is a one-year limitations period for filing a
§ 2254 petition. 28 U.S.C. § 2244(d)(1). The period generally runs 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).
Later dates which may commence the period are the date on which an
unconstitutional 	impediment 	that 	prevented 	the 	applicant 	from 	filing 	is
removed; the date on which the constitutional right asserted was recognized
by the U.S. Supreme Court and made retroactive on collateral review; and
the date on which the factual predicate for the claim could have been
discovered with due diligence. Id. § 2244(d)(1)(B)-(D). The limitations period
is tolled for the time during which a “properly filed” application for relief is
pending in state court. 	Id. § 2244(d)(2). 	The time may be equitably tolled,
but “only 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).
In this case, as indicated above, Cole did not appeal his conviction and
sentence entered February 10, 2022, and thus it became final on Monday,
March 14, 2022, when the time for filing an appeal expired. He had one year
thereafter, or until March 14, 2023, to file his federal habeas petition, absent
tolling activity. 	See, e.g., Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1218
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(11th Cir. 2017) (explaining Cadet’s conviction became final “on December
23, 2002, when the time for seeking a writ of certiorari from the United States
Supreme Court expired” and “[o]n that same date, Cadet’s one-year statute
of limitations for filing a federal habeas petition began to run,” citing 28 U.S.C.
§ 2244(d)(1)(A)); Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)
(calculating limitations period according to “anniversary method”); Ferreira v.
Sec’y, Dep’t of Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007) (applying
anniversary date analysis).
Nothing indicates any tolling activity on or before March 14, 2023. On
March 11, 2024, Cole filed a Motion for Postconviction Relief in the state trial
court. 	Ex. 5. 	By this point, however, his AEDPA limitations period had
expired. 	See, e.g., Hutchinson v. State of Fla., 677 F.3d 1097, 1098 (11th
Cir. 2012) (“In order for that § 2244(d)(2) statutory tolling to apply, the
petitioner must file his state collateral petition before the one-year period for
filing his federal habeas petition has run.”); Tinker v. Moore, 255 F.3d 1331,
1335 n.4 (11th Cir. 2001), cert. denied, 534 U.S. 1144 (2002) (“We remind
petitioners that a properly and timely filed petition in state court only tolls the
time remaining within the federal limitation period.”); Webster v. Moore, 199
F.3d 1256, 1259 (11th Cir. 2000) (“Under § 2244(d)(2), even ‘properly filed’
state-court petitions must be ‘pending’ in order to toll the limitations period.
A state-court petition . . . that is filed following the expiration of the limitations
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period cannot toll that period because there is no period remaining to be
tolled.”). Accordingly, Cole’s § 2254 petition, filed in July 2025, is untimely.
In 	his 	reply 	to 	Respondent’s 	motion 	to 	dismiss, 	Petitioner 	Cole
acknowledges his petition is untimely. 	ECF No. 10 at 1-2. 	He seems to
argue he should still be entitled to proceed in federal court because, in filing
his motion for state postconviction relief, he was complying with federal
requirements to exhaust state court remedies before seeking § 2254 relief in
federal court. 	Id. at 2. 	He further asserts that “he never received any type
of letter, form, or motion from the courts or legal representative stating that
he was eligible to even file a § 2254 style motion.” Id. at 3. He points to “his
lack of knowledge of the law and inability to obtain documents” from the state
court and State Attorney’s Office as reasons for his delay in filing a § 2254
petition. 	Id. 	He cites examples of when he requested documents and
attaches exhibits containing those requests, from May 2022, August 2022,
and February 2023. 	Id.; see id. at 8-14.
As Respondent points out in the motion to dismiss, a Florida state
inmate must satisfy the one-year AEDPA limitations requirement even
though Florida Rule of Criminal Procedure 3.850 allows state defendants two
years to file a postconviction motion. 	ECF No. 9 at 6. 	Specifically, as the
Eleventh Circuit has explained, “a state court petition . . . that is filed following
the expiration of the federal limitations period ‘cannot toll that period because
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there is no period remaining to be tolled.’” Tinker, 255 F.3d at 1333 (quoting
Webster, 199 F.3d at 1259). 	See Hutchinson, 677 F.3d at 1098.
Petitioner Cole may be attempting to assert entitlement to equitable
tolling. 	See ECF No. 10 at 3. “[E]quitable tolling is an extraordinary remedy
‘limited 	to 	rare 	and 	exceptional 	circumstances 	and 	typically 	applied
sparingly.’” 	Cadet, 853 F.3d at 1221 (quoting Hunter v. Ferrell, 587 F.3d
1304, 1308 (11th Cir. 2009)). 	“[A] ‘petitioner’ is ‘entitled to equitable tolling’
only 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, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the burden of
establishing equitable tolling and “the allegations supporting equitable tolling
must be specific and not conclusory.” Hutchinson, 677 F.3d at 1099.
Petitioner Cole has not met his burden of showing either that he
diligently pursued his rights or that some extraordinary circumstance kept
him from timely filing his § 2254 petition. He has not shown that he diligently
pursued his rights under the AEDPA. 	See, e.g., Helton v. Sec’y for Dep’t of
Corr., 259 F.3d 1310, 1313 (11th Cir. 2001) (explaining that petitioner must
“establish his own due diligence in ascertaining the applicable limitations
period”). 	His allegations regarding his lack of legal knowledge or federal
habeas options are not sufficient. 	See, e.g., Perez v. Florida, 519 F. App’x
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995, 997 (11th Cir. 2013) (“[W]e have not accepted a lack of a legal
education and related confusion or ignorance about the law as excuses for
a failure to file in a timely fashion.”). In addition, his allegations regarding the
inability to file his § 2254 petition within the one-year AEDPA limitations
period do not demonstrate extraordinary circumstances. 	See, e.g., Lugo v.
Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1209 (11th Cir. 2014) (“[V]ague
allegations 	about 	the 	existence 	of 	impediments, 	without 	more, 	or 	an
argument that fails to explain how such impediments prevented the timely
fling 	of 	the 	petition, 	does 	not 	establish 	extraordinary 	circumstances.”);
Chavez v. Sec’y, Fla. Dept. of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011)
(allegations supporting equitable tolling must be factual and specific, not
conclusory); Helton, 259 F.3d at 1313-14 (rejecting petitioner’s equitable
tolling argument that he “was prevented from obtaining accurate information
due to deficiencies in the prison library where he was being held”).
Conclusion
The § 2254 petition is untimely and Petitioner Cole has not shown
entitlement to equitable tolling. Therefore, it is respectfully RECOMMENDED
that Respondent’s motion to dismiss, ECF No. 9, be 	GRANTED, and
Petitioner Cole’s amended § 2254 petition, ECF No. 5, be DISMISSED as
untimely.
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Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts 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).” Rule
11(b) provides that a timely notice of appeal must still be filed, even if the
court issues a certificate of appealability.
Petitioner fails to make a 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 (2000) (explaining substantial showing) (citation omitted). Therefore,
the Court should deny a certificate of appealability. 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.” 	The
parties shall make any argument as to whether a certificate should issue by
filing objections to this Report and Recommendation.
Leave to appeal in forma pauperis should also be denied. See Fed. R.
App. P. 24(a)(3)(A) (providing that before or after notice of appeal is filed,
the court may certify appeal is not in good faith or party is not otherwise
entitled to appeal in forma pauperis).
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Recommendation
It is therefore respectfully RECOMMENDED that Respondent’s
motion to dismiss (ECF No. 9) be GRANTED and the third amended
§ 2254 petition (ECF No. 5) be DISMISSED as untimely. It is
further RECOMMENDED that a certificate of appealability be DENIED
and that leave to appeal in forma pauperis be DENIED.
IN CHAMBERS at Tallahassee, Florida, on January 26, 2026.
S/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon
all other parties. 	A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. 	Fed.
R. Civ. P. 72(b)(2). 	Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. 	If a party fails to object to the magistrate judge’s findings or
recommendations as to any particular claim or issue contained in a
Report and Recommendation, that party waives the right to challenge
on appeal the district court’s order based on the unobjected-to factual
and legal conclusions. 	See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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