3:25-cv-01253•COLE v. STATE OF FLORIDA
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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. Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 1 of 9
Page 2 of 9 Case No. 3:25cv1253-MCR/MAF 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. Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 2 of 9
Page 3 of 9 Case No. 3:25cv1253-MCR/MAF 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 Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 3 of 9
Page 4 of 9 Case No. 3:25cv1253-MCR/MAF (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 Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 4 of 9
Page 5 of 9 Case No. 3:25cv1253-MCR/MAF 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 Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 5 of 9
Page 6 of 9 Case No. 3:25cv1253-MCR/MAF 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 Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 6 of 9
Page 7 of 9 Case No. 3:25cv1253-MCR/MAF 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. Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 7 of 9
Page 8 of 9 Case No. 3:25cv1253-MCR/MAF 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). Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 8 of 9
Page 9 of 9 Case No. 3:25cv1253-MCR/MAF 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. Case 3:25-cv-01253-MCR-MAF Document 11 Filed 01/26/26 Page 9 of 9
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