Luis Ralphy Torres v. Secretary, Florida Department of Corrections

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14331
Non-Argument Calendar
____________________
LUIS RALPHY TORRES,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cv-01337-MMH-JBT
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2 Opinion of the Court 21-14331
____________________
Before NEWSOM, GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Luis Ralphy Torres, a Florida prisoner proceeding pro se, ap-
peals the District Court for the Middle District of Florida’s denial
of his 28 U.S.C. § 2254 petition as untimely. We granted a certifi-
cate of appealability (“COA”) on the issue of whether the District
Court erred in determining that Torres’s § 2254 petition was un-
timely based on its finding that his direct appeal ended 90 days after
the District Court of Appeal for the First District of Florida (the
“First DCA”) entered its per curiam opinion affirming his convic-
tion. Because the District Court did not address the impact, if any,
of the Florida Supreme Court’s sua sponte issuance of a stay in
Torres’s case, we vacate the District Court’s order and remand to
the District Court to consider this issue.
I.
On June 11, 2010, a jury in the Circuit Court of the Fourth
Judicial Circuit of Florida found Luis Ralphy Torres guilty of traf-
ficking 28 or more, but less than 30, kilograms of oxycodone, in
violation of Fla. Stat. Ann. § 893.135. He was sentenced to 30 years’
imprisonment.
Torres appealed his conviction to the First DCA, challenging
the constitutionality of Fla. Stat. Ann. § 891.135, as modified by
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§ 893.101. 1 The First DCA affirmed his conviction without opin-
ion. Torres v. State, No. 1D10-4346, 2011 WL 6167488 (Fla. 1st
Dist. Ct. App. Dec. 8, 2011), opinion withdrawn and superseded on
clarification, 80 So. 3d 416 (Fla. 1st Dist. Ct. App. 2012).
On December 20, 2011, Torres filed a Motion for Rehear-
ing/Clarification. He argued that he had challenged the facial con-
stitutionality of an applicable statute and that the First DCA “issued
a per curiam affirmance without including a citation even to recent
cases from [the] court rejecting the argument.” Torres further ar-
gued that the constitutionality of the statute in question was cur-
rently before the Florida Supreme Court. 2 He asked the First DCA
to “clarify its decision by issuing a written opinion consisting of a
citation to Flagg v. State, 36 Fla. Law Weekly D2276 (Fla. 1st DCA,
1 Torres’s public defender initially filed a brief claiming he found no nonfriv-
olous grounds for appeal pursuant to Anders v. California, 387 U.S. 738, 87 S.
Ct. 1396 (1967). Torres also filed a pro se brief raising several evidentiary is-
sues from his trial. Torres’s public defender then moved to file a supplemental
brief on the constitutionality of § 893.135. The First DCA granted the motion,
and Torres’s public defender filed a supplemental brief arguing that § 893.135,
as modified by § 893.101, is facially unconstitutional because the elimination
of mens rea as an element violated Torres’s due process rights under the Flor-
ida and United States constitutions.
2 Torres’s motion stated that the case currently pending before the Supreme
Court of Florida was State v. Adkins, SC11-1878, which was argued on De-
cember 8, 2011.
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Oct[.] 13, 2011), so that [the] issue will be preserved.” 3 On Febru-
ary 14, 2012, the First DCA granted Torres’s motion, withdrew its
December 2011 decision, and issued the following opinion:
“AFFIRMED. See Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA
2011).” Torres v. State, 80 So. 3d 416 (Fla. 1st Dist. Ct. App. 2012).
A month later, on March 12, 2012, Torres’s counsel filed a
Notice to Invoke Discretionary Jurisdiction of the Supreme Court
of Florida because the First DCA’s February 2012 opinion cited a
case presently pending before the Florida Supreme Court that
found a state statute constitutional. As such, Torres argued that
the Supreme Court of Florida could take jurisdiction of his appeal
under Fla. R. App. P. 9.030(a)(2)(A)(i). 4
On March 13, 2012, the First DCA issued the mandate for its
February 14, 2012 opinion. The same day, the Supreme Court of
Florida filed an Acknowledgment of New Case stating that it had
received Torres’s Notice to Invoke Discretionary Jurisdiction.
Three days later, on March 16, 2012, the Supreme Court of Florida
issued the following sua sponte order: “the proceedings in this
Court in [Torres v. State] are hereby stayed pending disposition of
3 In Flagg v. State, the First DCA rejected an argument similar to Torres’s:
that § 893.13 was facially unconstitutional because the mens rea requirement
in the statute was eliminated by § 893.101. 74 So. 3d 138, 140–41 (Fla. 1st Dist.
Ct. App. 2011).
4 Under Fla. R. App. P. 9.030(a)(2)(A)(i), “the discretionary [appellate] jurisdic-
tion of the [S]upreme [C]ourt [of Florida] may be sought to review decisions
of district courts of appeal that expressly declare valid a state statute.”
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State v. Adkins, Case No. SC11-1878.” 5 On November 9, 2012, the
Supreme Court of Florida entered the following order: “Having de-
termined that this Court is without jurisdiction, this case is hereby
dismissed. . . . No motion for rehearing will be entertained by the
Court.” Torres v. State, 105 So. 3d 523 (Fla. 2012).
On February 4, 2013, Torres filed a consolidated petition for
certiorari in the United States Supreme Court. The U.S. Supreme
Court denied this petition on April 15, 2013.
Following the conclusion of his direct appeal, on August 5,
2013, Torres initiated a state collateral proceeding by filing a pro se
Fla. R. Crim. P. 3.850 motion, which he amended on June 24, 2015.
On May 16, 2016, Torres, through counsel, filed a motion for per-
mission to file a supplemental memorandum of law, which the
5 In Adkins, the Supreme Court of Florida reached the following conclusion:
In enacting section 893.101, the Legislature eliminated from
the definitions of the offenses in chapter 893 the element that
the defendant has knowledge of the illicit nature of the con-
trolled substance and created the affirmative defense of lack of
such knowledge. The statutory provisions do not violate any
requirement of due process articulated by this Court or the Su-
preme Court. In the unusual circumstance where a person
possesses a controlled substance inadvertently, establishing
the affirmative defense available under section 893.101 will
preclude the conviction of the defendant.
96 So. 3d 412, 423 (Fla. 2012). Following its decision in Adkins, the Supreme
Court of Florida declined to exercise discretionary jurisdiction over Flagg. See
Flagg v. State, 10 So. 3d 1083 (Fla. 2012).
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Circuit Court for the Fourth Judicial Circuit granted. On February
5, 2018, the Circuit Court denied Torres’s Rule 3.850 motion for
post-conviction relief. On February 23, 2018, Torres, through
counsel, appealed the denial of his Rule 3.850 motion. Torres also
filed a pro se motion for reconsideration of his Rule 3.850 motion
on February 26, 2018. The First DCA affirmed the denial without
opinion.
On September 12, 2018, Torres filed the instant pro se § 2254
petition in the District Court for the Middle District of Florida. The
State responded by moving to dismiss Torres’s § 2254 motion as
untimely. The State argued that Torres’s judgment did not be-
come final upon conclusion of direct review in the U.S. Supreme
Court on April 15, 2013, as alleged by Torres, but rather, it became
final 90 days after the First DCA entered its judgment—May 14,
2012—because the Supreme Court of Florida dismissed his case for
lack of jurisdiction. Torres did not file his petition for certiorari
until June 4, 2013. The State argued that because Torres’s cert pe-
tition was untimely, it did not toll the Antiterrorism and Effective
Death Penalty Act (the “AEDPA”) statute of limitations. The State
went on to claim that Torres’s time under the AEDPA ran for one
year until it expired on May 15, 2012, because there were no
properly filed state applications for post-conviction or other collat-
eral relief pending in the interim. Because the AEDPA statute of
limitations had already expired, neither of Torres’s Rule 3.850 mo-
tions could toll the statute of limitations, according to the State,
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because “no time remained within the limitations period to toll.”
Torres’s § 2254 petition was therefore over three years out of time.
Torres replied that he had filed a timely notice of intent to
invoke the discretionary jurisdiction of the Supreme Court of Flor-
ida. In response to his notice, the Supreme Court of Florida en-
tered an Acknowledgement of New Case and sua sponte stayed his
case pending resolution of Adkins. Torres asserts that his notice
was properly filed in the Supreme Court of Florida, which enter-
tained it instead of dismissing it as unauthorized. In a supplemental
filing, Torres claimed that while Flagg v. State was not pending be-
fore the Supreme Court of Florida, Adkins, which contained the
same exact subject matter, was. Both Flagg and Adkins arose from
Shelton v. Sec’y, Dept. of Corr., 802 F. Supp. 1289 (M.D. Fla. 2011),
which held that § 893.13 was facially unconstitutional. Torres ar-
gued that the Supreme Court of Florida “clearly recognized the
linking subject matter and sua sponte stayed [his] proceedings
pending disposition in State v. Adkins.”
The District Court dismissed the § 2254 petition as untimely.
According to the District Court, “[b]ecause the First DCA’s opinion
was not capable of review under Florida law, Torres’[s] judgment
became final when the ninety-day period in which to file a petition
for certiorari in the United States Supreme Court expired,” or May
14, 2013. Order, Doc. 10 at 7–8. Torres did not file a motion that
would have tolled the statute of limitations under § 2244(d)(2) until
August 4, 2013, when he filed a Rule 3.850 motion. By that time,
according to the District Court, the statute of limitations had
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already expired. Further, the District Court held that Torres failed
to present an argument that equitable tolling should apply.
This Court granted a COA to determine: “Whether the dis-
trict court erred in determining that Torres’s § 2254 petition was
untimely based on finding that his direct appeal ended 90 days after
the Florida First District Court of Appeal entered its per curiam
opinion affirming his conviction?”
On appeal, Torres argues that he is entitled to tolling be-
cause he properly invoked the Supreme Court of Florida’s discre-
tionary jurisdiction over his case and the Supreme Court later di-
vested itself of that jurisdiction through a series of subsequent de-
cisions, but through no fault of Torres’s. 6 Torres further argues
that the AEDPA statute of limitations was properly tolled when the
Supreme Court of Florida sua sponte stayed the proceedings be-
cause the Supreme Court of Florida “exercised de facto jurisdic-
tion” over his proceeding. Finally, Torres argues that if this Court
6 According to Torres, when he sought discretionary review in the Supreme
Court of Florida, he relied on the First DCA’s citation to Flagg, in which the
Supreme Court of Florida had yet to accept jurisdiction. But rather than ac-
cept jurisdiction in Flagg, the Supreme Court of Florida stayed Flagg pending
the disposition of Adkins, which involved the same subject matter and was the
lead case on the subject matter. Adkins was decided adversely to the Flagg
appellant’s argument, which caused the Supreme Court of Florida to decline
to accept jurisdiction in Flagg as moot. And with the dismissal of Flagg for
mootness, the Supreme Court of Florida dismissed Torres’s case for lack of
jurisdiction.
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finds that the sua sponte stay did not toll the AEDPA statute of lim-
itations, he is entitled to equitable tolling.
The State, on the other hand, argues that the statute of lim-
itations expired on May 14, 2013. It argues that because the Su-
preme Court of Florida did not have jurisdiction, Torres’s motion
did not toll AEDPA’s statute of limitations. Because the Supreme
Court of Florida did not have jurisdiction, the First DCA was the
state court of last resort, and it entered its judgment on February
14, 2012. This gave Torres until May 14, 2012, to petition the U.S.
Supreme Court for certiorari, which he did not do within that time
frame. After May 14, 2012, the AEDPA statute of limitations ran
unabated until it expired. Because they were filed after the AEDPA
statute of limitations expired, Torres’s Rule 3.850 motions could
not have tolled the statute of limitations. Finally, the State argues
that Torres is not entitled to equitable tolling because (1) he raises
this argument for the first time on appeal; and (2) he fails on the
merits because he does not show that extraordinary circumstances
that were beyond his control and unavoidable prevented him from
filing his petition on time.
II.
We review de novo the District Court’s dismissal of a § 2254
petition as untimely. Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir.
2006). We review legal conclusions regarding equitable tolling de
novo and factual findings for clear error. Cadet v. Fla. Dep’t of
Corr., 853 F.3d 1216, 1221 (11th Cir. 2017).
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Pursuant to § 2244(d)(1), as amended by the AEDPA, a
§ 2254 petition is governed by a one-year statute of limitations pe-
riod that begins to run on the latest of four triggering events. 28
U.S.C. § 2244(d)(1). The relevant triggering event in this case is the
date on which the challenged judgment became final “by the con-
clusion of direct review or the expiration of the time for seeking
such review.” Id. § 2244(d)(1)(A).
Direct review cannot conclude, for purposes of
§ 2244(d)(1)(A), until the availability of direct appeal to the state
courts and to the United States Supreme Court has been exhausted.
Jimenez v. Quarterman, 555 U.S. 113, 119, 129 S. Ct. 681, 685
(2009). Until that time, the process of direct review has not come
to an end, and a presumption of finality cannot have attached to
the conviction and sentence. Id. at 119–20, 129 S. Ct. at 685–86.
Ordinarily, a state prisoner’s conviction becomes final when the
U.S. Supreme Court denies certiorari or issues a decision on the
merits, or when the 90-day period in which to file a certiorari peti-
tion expires. Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235, 1236–
37 (11th Cir. 2004). In Chamblee v. Florida, we stated that “in order
to determine whether the ‘entirety of the state direct appellate pro-
cess has been completed,’ as in Jimenez, this Court must look to
the actions taken by the state court and the relevant state law.” 905
F.3d 1192, 1196 (11th Cir. 2018) (internal citations omitted).
Under Florida law, “a judgment against a criminal defendant
becomes final upon issuance of the mandate on his direct appeal.”
Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (citing Jones
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v. State, 602 So. 2d 606, 607–08 (Fla. 1st Dist. Ct. App. 1992)). We
have clarified that the 90-day window in which to seek certiorari
review by the U.S. Supreme Court begins to run upon the entry of
the judgment, not the issuance of the mandate. Chavers v. Sec’y
for Dep’t of Corr., 468 F.3d 1273, 1275 (11th Cir. 2006). However,
the discretionary jurisdiction of the Supreme Court of Florida may
be sought to review decisions of district courts of appeal that:
(i) expressly declare valid a state statute; (ii) expressly
construe a provision of the state or federal constitu-
tion; (iii) expressly affect a class of constitutional or
state officers; (iv) expressly and directly conflict with
a decision of another district court of appeal of the su-
preme court on the same question of law; (v) pass
upon a question certified to be of great public im-
portance; or (vi) are certified to be in direct conflict
with decisions of other district courts of appeal.
Fla. R. App. P. 9.030(2)(A). The Supreme Court of Florida has held
that “a district court of appeal per curiam opinion which cites[,] as
controlling[,] authority that is either pending review in or has been
reversed by [the Supreme Court of Florida] continues to constitute
prima facie express conflict and allows [the Supreme Court of Flor-
ida] to exercise its jurisdiction.” Jollie v. State, 405 So. 2d 418, 420
(Fla. 1981). On the other hand, “mere citation” per curiam affir-
mances are not reviewable by the Florida Supreme Court. Id. at
421. The Florida Supreme Court later clarified that controlling au-
thority that is pending review “refers to a case in which the petition
for jurisdictional review has been granted and the case is pending
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for disposition on the merits.” Harrison v. Hyster Co., 515 So. 2d
1279, 1280 (Fla. 1987).
The AEDPA’s limitation period may also be equitably tolled
if a petitioner shows (1) that he has been pursuing his rights dili-
gently and (2) that some extraordinary circumstance prevented
timely filing. Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549,
2562 (2010). However, this Court has “repeatedly held that an is-
sue not raised in the district court and raised for the first time in an
appeal will not be considered by this [C]ourt.” Walker v. Jones, 10
F.3d 1569, 1572 (11th Cir. 1994) (internal quotations omitted).
Here, the important question is when Torres’s direct appeal
ended. The parties do not argue, and the District Court did not
address, the impact of the sua sponte stay issued by the Florida Su-
preme Court on the finality of Torres’s direct appeal under 28
U.S.C. § 2244(d)(1)(A). This Court must look to the actions taken
by the state court and the relevant state law to determine whether
the entirety of the state direct appellate process has concluded.
If the sua sponte stay had no effect on the finality of Torres’s
direct appeal because the Supreme Court of Florida did not have
jurisdiction over Torres’s appeal from the First DCA, Torres would
have had 90 days from the entry of judgement from the First DCA
before his conviction became final and the AEDPA statute of limi-
tations started to run. Torres’s cert petition would have been
timely because it was filed after May 14, 2012. In this case, Torres’s
AEDPA statute of limitations would have run without being tolled
until it expired on May 14, 2013.
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If, however, the sua sponte stay means that Torres’s direct
appeal was still pending until the Supreme Court of Florida dis-
missed the case for lack of jurisdiction, then Torres’s direct appeal
ended on November 9, 2012. His petition for certiorari with the
U.S. Supreme Court on February 4, 2013 was timely because it was
within 90 days of the decision of the Supreme Court of Florida. In
this case, Torres’s one-year statute of limitations did not start run-
ning until the Supreme Court denied certiorari on April 15, 2013.
Only 112 days would have passed when Torres filed his Rule 3.850
motion on August 5, 2013. The Rule 3.850 motion would have
tolled the statute of limitations until it was denied on September
12, 2018. Torres filed his § 2254 petition on November 8, 2018—
57 days after the denial of his Rule 3.850 motion. If the Supreme
Court of Florida’s sua sponte stay means Torres’s direct appeal was
still pending, Torres’s § 2254 petition was timely filed because only
169 untolled days had passed.
Therefore, we vacate the District Court’s order and remand
for the District Court to consider in the first instance the impact of
the sua sponte stay on the finality of Torres’s direct appeal under
§ 2244(d)(1)(A) without reference to the “properly filed” and “toll-
ing” language in § 2244(b)(2). As Torres did not raise the issue of
equitable tolling before the District Court, this Court need not ad-
dress that argument.
VACATED AND REMANDED.