ALDANA

v.

SECRETARY, DEPARTMENT OF CORRECTIONS (NASSAU COUNTY)

I. Status

Petitioner Noel Aldana, an inmate of the Florida penal system, initiated this action on September 27, 2017,1 by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). Aldana is proceeding on an amended petition (Amended Petition; Doc. 6). In the Amended Petition, Aldana challenges a 2010 state court (Nassau County, Florida) judgment of conviction for grand larceny by unauthorized credit card use and schemes to defraud. Aldana raises five grounds for relief. See Amended Petition at 5-27.2 Respondents have submitted an answer in opposition to the Amended Petition. See Motion to Dismiss (Response; Doc. 29) with exhibits (Resp. Ex.). Aldana moved to enlarge the record, see Doc. 23, the Court granted his request, see Doc. 29, and Respondents supplemented their exhibits with the relevant records. See Doc. 27. Aldana filed three briefs in reply; Docs. 24, 28, 30; however, the Court construes the last reply as

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the United States Supreme Court held that a claim of actual innocence, if proven, provides an equitable exception to the one-year statute of limitations. The United States Supreme Court explained: We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S. at 538, 126 S.Ct. 2064 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U.S., at 332, 115 S.Ct. 851.

Id. at 386-87. “For purposes of the ‘actual innocence’ exception to a procedural bar, the petitioner must show ‘factual innocence, not mere legal insufficiency.’” Justo v. Culliver, 317 F. App'x 878, 880-81 (11th Cir. 2008) (quoting Bousley v. United States, 523 U.S. 614 (1998)). Respondents contend that this action is untimely. Response at 4-7. In his Reply, Aldana argues that the Amended Petition is timely because Respondents used incorrect dates to determine the dates he filed postconviction motions. Reply at 5-6. Additionally, Aldana contends that even if untimely, he is actually innocent of the charge of scheming to defraud, but, nevertheless, admits that he is guilty of grand larceny. Id. at 1-5. The following procedural history is relevant to the one-year limitations issue.

8, 2014, Resp. Ex. P, restarting the statute of limitations. See Nyland, 216 F. 3d at 1267. The statute of limitations ran for a total of 209 days until September 29, 2014, when Aldana filed a petition for writ of habeas corpus with the circuit court. Resp. Ex. U at 1-32. The circuit court denied the petition on October 21, 2014, Id. at 33, and denied Aldana’s motion for rehearing on November 12, 2014. On May 27, 2015, the First DCA per curiam affirmed the denial of the petition. Resp. Ex. Y. Aldana moved for rehearing, which the First DCA denied. Resp. Ex. Z. The First DCA issued the Mandate on July 27, 2015, Resp. Ex. AA, and the limitations period began to run again. See Nyland, 216 F. 3d at 1267. On February 24, 2016, Aldana, with the assistance of counsel filed another motion pursuant to Rule 3.800(a) (Second Rule 3.800(a) Motion). Resp. Ex. BB at 1-12. By the time Aldana filed his Second Rule 3.800(a) Motion, 421 un-tolled days had passed since his judgment became final; therefore, the Second Rule 3.800(a) Motion did not toll the statute of limitations. Aldana’s judgment became final on December 30, 2015.6

Accordingly, even though Respondents incorrectly identified the dates of some of Aldana’s pro se state court filings, based on the timeline above, this action, initiated on September 27, 2017, is untimely. Aldana alternatively argues that a manifest injustice would occur if the Court did not address the merits of the Amended Petition because he is actually innocent of count two. According to Aldana, there was no competent, substantive evidence to support the charge in count two and to demonstrate this point, he relies on the fact that the State of Florida provided no evidence at the plea or sentencing hearings to prove he was involved in the scheme to defraud. Reply at 2. The Court finds Aldana has failed to meet his burden to establish that he is actually innocent because he has not alleged any new facts that would support an actual innocence claim. It appears Aldana believes that the State did not have evidence to prove count two at the time of the plea. See generally Reply; see also Doc. 24 at 5-6. In support of this, Aldana cites to evidence the State disclosed in 2012 that included the dates of credit card charges that did not correspond to the dates alleged in the charging document. Doc. 24 at 5-6. Aldana maintains that the evidence

III. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Aldana seeks issuance of a certificate of appealability, the undersigned opines that a certificate of appealability is not warranted. The Court should issue a certificate of appealability only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Aldana “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Where a district court has rejected a petitioner’s constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484. However, when the district court has rejected a claim on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Upon consideration of the record as a whole, the Court will deny a certificate of appealability.

Therefore, it is now ORDERED AND ADJUDGED: 1. The Amended Petition (Doc. 6) is DISMISSED WITH PREJUDICE, and this action is DISMISSED WITH PREJUDICE. 2. The Clerk of the Court shall enter judgment dismissing the Amended Petition and dismissing this case with prejudice. 3. If Aldana appeals the dismissal of the Amended Petition, the Court denies a certificate of appealability. Because the Court has determined that a certificate of appealability is not warranted, the Clerk shall terminate from the pending motions report any motion to proceed on appeal as a pauper that may be filed in this case. Such termination shall serve as a denial of the motion. 4. The Clerk of the Court is directed to close this case and terminate any pending motions. DONE AND ORDERED at Jacksonville, Florida, this 14th day of October, 2020.

United States District Judge

Jax-8 C: Noel Aldana #J42034 Counsel of record