LUIS HOLLIS v. STATE OF FLORIDA ( 2020 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    LUIS HOLLIS,
    Petitioner,
    v.
    STATE OF FLORIDA,
    Respondent.
    No. 4D20-1864
    [December 9, 2020]
    Petition alleging ineffective assistance of appellate counsel to the
    Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County;
    Hubert R. Lindsey, Judge; L.T. Case No. 502001CF008538AXXXMB.
    Luis Hollis, Jasper, pro se.
    Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
    Assistant Attorney General, West Palm Beach, for respondent.
    FORST, J.
    Luis Hollis filed a pro se petition alleging ineffective assistance of
    appellate counsel. He acknowledges that this petition is untimely under
    Florida Rule of Appellate Procedure 9.141(d)(5) (2020), but he argues that
    the petition should be considered under an exception utilized under
    similar circumstances in several District Court of Appeal opinions.
    Because we find that Hollis’s petition fails to establish that consideration
    of his claim is necessary to avoid the “manifest injustice” presented in
    Hollis’s cited cases, we deny the petition.
    Background
    Petitioner Hollis and a co-defendant were convicted on the charges of
    (1) robbery while armed with a deadly weapon and (2) burglary while armed
    with a deadly weapon. They were also charged with kidnapping and
    convicted for the lesser-included offense of false imprisonment. Both
    Hollis and the co-defendant filed motions for acquittal on the kidnapping
    charge; these motions were denied. Hollis was sentenced to life in prison
    as a prison releasee reoffender for the burglary and robbery offenses, along
    with a concurrent five-year sentence for false imprisonment. Hollis
    appealed, arguing that the court acted as an advocate for the prosecution
    when it sua sponte called for a sidebar and coached the prosecution on
    how to present evidence. We affirmed Hollis’s judgment and sentence, per
    curiam, in Hollis v. State, 
    888 So. 2d 647
     (Fla. 4th DCA 2004) (table).
    Mandate issued December 10, 2004.
    While Hollis’s appeal was pending before this court, his co-defendant
    challenged his own conviction for false imprisonment (like Hollis, the co-
    defendant was convicted for a lesser-included offense of kidnapping). In
    Russell v. State, 
    874 So. 2d 1256
     (Fla. 4th DCA 2004), we reversed the co-
    defendant’s false imprisonment conviction, finding the trial court erred in
    denying the motion for judgment of acquittal on the kidnapping charge.
    Id. at 1259. This reversal opinion issued June 9, 2004. Hollis did not
    raise the same argument nor reference the Russell opinion in his appeal.
    In 2006, Hollis filed in this court a motion for extension of time for filing
    a petition for writ of habeas corpus on grounds of ineffective assistance of
    appellate counsel (“IAAC”). He was given an extension of time, to March
    2007, to file his petition. Over the course of the next decade, Hollis filed
    mandamus petitions to compel counsel to forward the record on appeal.
    However, he did not pursue his IAAC claim prior to filing the instant
    petition on August 13, 2020.
    Analysis and Conclusion
    Florida Rule of Appellate Procedure 9.141(d)(5) provides that a petition
    alleging IAAC “shall not be filed more than 2 years after the judgment and
    sentence become final on direct review.” Fla. R. App. P. 9.141(d)(5). The
    only exception to this two-year time limitation is where the petition “alleges
    under oath with a specific factual basis that the petitioner was
    affirmatively misled about the results of the appeal by counsel.” Id. Hollis
    has not alleged under oath with a specific factual basis that he was
    affirmatively misled about the results of his appeal by counsel.
    Hollis concedes that his IAAC petition is untimely.           However,
    referencing McKay v. State, 
    988 So. 2d 51
     (Fla. 3d DCA 2008), Hollis
    argues that consideration of his IAAC claim is permitted. In McKay, the
    defendant was convicted and sentenced on four conspiracy charges and
    two other counts. 
    Id. at 52
    . In a postconviction petition, McKay’s co-
    defendant successfully argued that a jury instruction should not have
    been given with respect to the conspiracy charges. 
    Id.
     The appellate court
    vacated the co-defendant’s conspiracy convictions. 
    Id.
     McKay’s IAAC
    petition therefore asserted that, although untimely, “consideration of his
    2
    claim [was] necessary to avoid a manifest injustice.” 
    Id.
     The court agreed,
    vacating McKay’s conspiracy convictions in the same manner as it had
    done for his co-defendant. 
    Id.
    This court reached a similar result in Johnson v. State, 
    226 So. 3d 908
    (Fla. 4th DCA 2017) and Pierre v. State, 
    237 So. 3d 402
     (Fla. 4th DCA
    2018). In Johnson, the defendant and co-defendant had both been
    charged with murder; however, only the co-defendant challenged the
    denial of motions to suppress that both parties had asserted below.
    Johnson, 226 So. 3d at 910. Johnson’s conviction and sentence were
    affirmed, while the co-defendant’s conviction was reversed. Id. Johnson
    had previously filed an IAAC petition that had been denied, but the petition
    did not address the motion to suppress. Id. When he again filed an IAAC
    petition, the State argued that it should be dismissed as successive. Id.
    Finding that “[t]his Court has ‘inherent authority to grant a writ of habeas
    corpus to avoid incongruous and manifestly unfair results,’” id. (quoting
    Stephens v. State, 
    974 So. 2d 455
    , 457 (Fla. 2d DCA 2008)), we granted
    Johnson’s petition. Id. at 911. In Pierre, we quoted language from Johnson
    in granting habeas relief: “To give relief to one co-defendant but deny
    another co-defendant the same relief under virtually identical
    circumstances is a manifest injustice that does not promote—in fact, it
    corrodes—uniformity in the decisions of this court.” Pierre, 237 So. 3d at
    403 (quoting Johnson, 226 So. 3d at 910–11).
    “[O]ur authority to grant a writ of habeas corpus based on manifest
    injustice should only be exercised in ‘uncommon and extraordinary
    circumstances.’” Johnson, 226 So. 3d at 911 (quoting Stephens, 
    974 So. 2d at
    457–58). In addition to the two-year time limit for filing an IAAC
    petition, rule 9.141(d)(5) further provides that “[i]n no case shall a petition
    alleging ineffective assistance of appellate counsel on direct review be filed
    more than 4 years after the judgment and sentence become final on direct
    review.” Fla. R. App. P. 9.141(d)(5) (emphasis added). Thus, the latest
    Hollis could have filed his IAAC petition was December 10, 2008, more
    than eleven years prior to his August 13, 2020 filing.
    By contrast, the petitioner in McKay, as well as in Johnson and Pierre,
    did not run afoul of this “4 years” restriction. The petition in McKay was
    granted less than four years after the appellate court had affirmed his
    conviction on direct appeal. See Johnson v. State, 
    892 So. 2d 1039
     (Fla.
    3d DCA 2004) (table), cert. denied sub nom. McKay v. Florida, 
    545 U.S. 1142
     (2005). 1 The petitions in both Johnson and Pierre were granted a
    1The appeals of McKay and “several codefendants were consolidated with the
    appeal of Wallace Johnson and affirmed without opinion under Johnson v. State,
    3
    little over three years after we had affirmed the convictions on direct
    appeal. See Johnson v. State, 
    149 So. 3d 25
     (Fla. 4th DCA 2014) (table);
    Pierre v. State, 
    156 So. 3d 1101
     (Fla. 4th DCA 2015) (table). Each of these
    petitioners had filed their successful habeas petitions less than a year
    following their co-defendants’ successful challenges. Compare McKay v.
    State, 
    988 So. 2d 51
     (Fla. 3d DCA 2008), Johnson v. State, 
    226 So. 3d 908
    (Fla. 4th DCA 2017), and Pierre v. State, 
    237 So. 3d 402
     (Fla. 4th DCA
    2018), with Evans v. State, 
    985 So. 2d 1105
     (Fla. 3d DCA 2007), Sanchez
    v. State, 
    199 So. 3d 472
     (Fla. 4th DCA 2016), and Reid v. State, 
    222 So. 3d 575
     (Fla. 4th DCA 2017). As noted above, Hollis filed his petition more
    than a decade after both his direct appeal and the co-defendant’s
    successful appeal. Accordingly, he has failed to exercise due diligence in
    pursuing this matter.
    The State additionally points out that Hollis has already served his
    sentence on the false imprisonment count and that he is now serving life
    sentences on the two remaining counts. Thus, it contends that preventing
    manifest injustice does not require this court to grant the untimely IAAC
    petition and vacate Hollis’s conviction and sentence for false
    imprisonment, as it would have no impact on the length of Hollis’s
    incarceration.
    “The term ‘manifest injustice,’ . . . has been acknowledged as an
    exception to procedural bars to postconviction claims in only the rarest
    and most exceptional of situations.” Cuffy v. State, 
    190 So. 3d 86
    , 87 (Fla.
    4th DCA 2015). In considering the instant petition’s reliance on the
    “manifest injustice” exception, we take into account: (1) Hollis’s failure to
    file this petition within four years of the judgment and sentence becoming
    final on direct review; (2) the more than a decade delay in asserting that
    his co-defendant’s successful appeal on a claim not presented by Hollis’s
    appellate counsel establishes an IAAC claim; and (3) the fact that Hollis
    has already served his sentence for the false imprisonment conviction and
    a reversal of that conviction would have no impact on his remaining prison
    time due to the other convictions. Based on these factors, which mitigate
    Hollis’s claim of “manifest injustice” attributable to “uncommon and
    extraordinary circumstances,” we decline to exercise our authority to grant
    habeas relief.
    Petition denied.
    
    892 So. 2d 1039
     (Fla. 3d DCA 2004).” Evans v. State, 
    985 So. 2d 1105
    , 1106 n.4
    (Fla. 3d DCA 2007). McKay petitioned for U.S. Supreme Court review of Wallace
    Johnson v. State, which was denied. McKay v. Florida, 
    545 U.S. 1142
     (2005).
    4
    CIKLIN and CONNER, JJ., concur.
    *       *        *
    Not final until disposition of timely filed motion for rehearing.
    5