Timothy D. Woulard v. Secretary, Department of Corrections
Opinion
Timothy Woulard, a Florida state prisoner proceeding
pro se
and
in forma pau-peris,
appeals the district court’s dismissal of his
I
Because we write for the parties, we set out only what is necessary to resolve this appeal.
In March of 2010, Mr. Woulard was charged in Florida state court with second-degree murder with a firearm (count 1) and possession of a firearm by a convicted felon (count 2). Mr. Woulard pled guilty to the lesser-included offense of manslaughter for count 1 and to the possession charge, and he was sentenced pursuant to a plea agreement on May 11, 2010.
In June of 2010, Mr. Woulard moved to withdraw his guilty plea. After an eviden-tiary hearing, he stated that he no longer wanted to take back his plea, and the state court allowed him to withdraw the motion on July 30, 2010. 1
*633 On January 26, 2011, Mr. Woulard filed a Rule 3.860 motion for post-conviction relief in state court and asserted, two grounds of ineffective assistance of counsel. The state court granted an evidentiary hearing on one issue, but subsequently entered an order denying the motion in March of 2013. The Fifth District Court of Appeal issued a per curiam opinion affirming, and the mandate issued on May 2, 2014.
Mr. Woulard filed an initial pro se § 2254 petition in federal court on October 7, 2014, but the district court dismissed it without prejudice because he had not paid the filing fee, filed an affidavit of indigen-cy, or tried to seek IFP status. Rather than filing a motion for reconsideration or appealing the dismissal, Mr. Woulard filed a second § 2254 petition on December 10, 2014.
In January of 2016, the district court dismissed Mr. Woulard’s second § 2254 petition as untimely because it was due on December 4, 2014. In reaching that calculation, the district court applied Florida law and found that the one-year statute of limitations period began to run on August 30, 2010 (i.e., 30 days after Mr. Woulard’s motion to withdraw his plea pleadings had ended) because he had not appealed his state convictions or sentence. The district court recognized that his properly-filed state post-conviction motion tolled the limitations period fi-om January 26, 2011 (the date he filed the motion) through May 2, 2014 (the date the appellate mandate issued for the denial of the motion). Given that 149 days had elapsed between August 30, 2010, and the filing of the state post-conviction motion, the district court found that Mr. Woulard had 216 days from the date of the state appellate mandate to timely file a federal habeas petition.
In October of 2016, we granted a certificate of appealability on one issue: whether the district court erred in dismissing Wou-lard’s § 2254 petition as untimely. Because Mr. Woulard has abandoned the only equitable tolling argument that he made in the district court, and he has waived his remaining arguments on appeal, we now affirm.
II
We review a district court’s decision to dismiss a habeas petition as untimely and its decision regarding the applicability of equitable tolling
de novo. See San Martin v. McNeil,
III
AEDPA imposes a strict one-year statute of limitations for filing a § 2254 habeas petition and identifies four events that trigger the one-year period.
See
A petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that
*634
some extraordinary circumstance stood in his way’ and prevented timely filing.”
Holland v. Florida,
Here, Mr, Woulard has abandoned his equitable tolling argument regarding his initial § 2254 petition (filed on October 7, 2014, without paying the filing fee) because he did not brief the issue on appeal.
See Timson,
Instead, Mr. Woulard claims for the first time on appeal that his second § 2254 petition was actually filed (through mailing) on December 1, 2010, but that a corrections officer incorrectly transposed the date as December 10, 2010. Mr. Woulard has not asserted that any of the exceptions to the waiver rule apply, and we therefore decline to address that new argument.
See Access Now,
In addition, Mr. Woulard argues that he is entitled to proceed because he has made a substantial showing of a deprivation of a constitutional right — ineffective assistance of counsel. But he incorrectly asserts the standard for determining whether a petitioner should be granted a COA under
We do not have authority to review Mr. Woulard’s additional claims that his attorney rendered ineffective assistance of counsel, that he is entitled to another evi-dentiary hearing, and that he has new witness testimony to present because our review is limited to the timeliness issue listed in the COA.
See Murray v. United States,
Insofar as .Mr. Woulard claims that the actual innocence exception applies, his argument is tied to his ineffective assistance of counsel claim. He contends that if his attorney had been effective in filing a motion to suppress the evidence against him, then the state would not have been able to prove that he committed a crime, and he therefore would not have pled guilty. This claim, if true, may lend support for legal innocence, but Mr. Woulard has not met the high bar of providing new evidence that supports
factual
innocence.
See San Martin,
Lastly, although Mr. Woulard has not argued that the district court clearly erred in calculating the date that he was required to file a federal habeas corpus petition, we briefly address the district court’s finding. We have explained that withdrawing a motion leaves “nothing ... to review,”
see United States v. Montoya,
In sum, Mr. Woulard has not provided a basis for applying the doctrine of equitable tolling, and we are not left with the firm conviction that the district court committed a factual error in determining that Mr. Woulard was required to file his federal habeas petition by December 4, 2014,
See Smith,
IV
We affirm the district court’s dismissal of Mr. Woulard’s habeas corpus petition as untimely.
AFFIRMED.
. Mr. Woulard filed a second motion to withdraw his guilty plea on August 14, 2010, but it was dismissed as untimely.
. The only equitable tolling argument that Mr. Woulard made in the district court was that the district court's November 21, 2014 dismissal of his habeas petition without prejudice (for failure to pay the filing fee or to request IFF status) did not give him enough time to re-file on time. At the time, he admitted that his petition should have been filed by December 4, 2010, but that his failure to do so was based on an unconstitutional application of federal law in that the district court denied him access to the courts.
Reference
- Full Case Name
- Timothy D. WOULARD, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees
- Cited By
- 5 cases
- Status
- Unpublished