MORAN v. SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
PHILIP JUDE MORAN,
Petitioner,
vs. Case No. 3:25-cv-276-MW-MAF
SECRETARY, DEPARTMENT
OF CORRECTIONS STATE OF
FLORIDA,
Respondent.
__________________________/
REPORT AND RECOMMENDATION
On March 18, 2025, Petitioner Philip Jude Moran, a state prisoner
represented by counsel, filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. ECF No. 1. Petitioner challenges his conviction of second-
degree murder with a firearm and life sentence entered April 17, 2018, by
the Fourteenth Judicial Circuit, Bay County, Florida, following a jury trial in
case number 2014-CF-698. Id. On May 28, 2025, Respondent filed a motion
to dismiss as untimely with exhibits. ECF No. 8. On July 14, 2025, Petitioner
filed a response. ECF No. 12. Petitioner was permitted to file an affidavit from
prior counsel under seal as an exhibit. See ECF No. 14. Petitioner’s first
sealed exhibit was stricken because it was not sworn. See ECF No. 18. On
August 20, 2025, Petitioner filed the exhibit in affidavit form. ECF No. 20.
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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. Because
Petitioner is not entitled to equitable tolling, Respondent’s motion should be
granted and this action dismissed as untimely.
I. Background
The procedural history of this case is undisputed by the parties and the
state court record. See ECF No. 8-1 through 8-14. The First District Court of
Appeal (DCA) affirmed Petitioner’s judgment and sentence on March 26,
2020 without written opinion, ECF No. 8-6 at 3, and denied his motion for
rehearing on May 7, 2020. ECF No. 8-8 at 2. Under the Anti-Terrorism and
Effective Death Penalty Act (AEDPA), Petitioner’s conviction became final
1501 days later on October 5, 2020,2 when the time for seeking certiorari in
1 Due to the pandemic, the U.S. Supreme Court temporarily extended the deadline to
seek certiorari review from 90 days to 150 days for cases where the “the relevant lower
court judgment, order denying discretionary review, or order denying a timely petition for
rehearing was issued” between March 19, 2020 and July 18, 2021. Miscellaneous Order
Addressing the Extension of Filing Deadlines, 334 F.R.D. 801 (March 19, 2020);
Miscellaneous Order Rescinding COVID-19 Related Orders, U.S. Sup. Ct. R. Orders
Rescinded (July 19, 2021).
2 The 150th day was Sunday, October 4th. But under Rule 6, “if the last day [of a time
period] is a Saturday, Sunday, or legal holiday, the period continues to run until the end
of the next day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).
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the United States Supreme Court expired. See 28 U.S.C § 2244(d)(1)(A);
Chavers v. Sec'y, Fla. Dep't of Corr., 468 F.3d 1273, 1274-1275 (11th Cir.
2006).
The one-year limitations period for filing a federal habeas petition
began to run October 5, 2020 until it was tolled July 28, 2021, when Petitioner
filed his post-conviction motion in state court. See Downs v. McNeil, 520 F.3d
1311, 1318. (11th Cir. 2008) (AEDPA’s one-year limitations period is
calculated using the “anniversary method,” where “the limitations period
expires on the [one-year] anniversary of the date it began to run,” usually
365 days from the date the conviction became final); 28 U.S.C § 2244(d)(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”); ECF No. 8-9 at 14 (Petitioner’s 3.850 motion filed July 28,
2021). As Respondent points out, “296 days elapsed on AEDPA’s deadline”
and “69 days remained.” ECF No. 8 at 7; see also Fed. R. Civ. P. 6(a)(1)
(“exclude the day of the event that triggers the period” and “count every day,”
including “the last day of the period”).
In a detailed order issued May 8, 2023, the state trial court found no
ineffective assistance of counsel and denied Petitioner’s motion without an
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evidentiary hearing. ECF No. 8-9 at 84-115. Petitioner timely appealed to the
First DCA, who affirmed the decision by written opinion on April 10, 2024.
ECF No. 8-12 at 4. Mandate issued on April 29, 2024. Id. at 1; See Nyland
v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (in Florida, a 3.850 motion is
pending until the DCA issues its mandate). Petitioner sought discretionary
review in the Florida Supreme Court on April 24, 2024, five days before the
mandate issued. ECF No. 8-13. The AEDPA deadline remained tolled until
December 19, 2024, when the Florida Supreme Court declined to accept
jurisdiction, denied the petition for review, and declined to hear any motions
for rehearing. ECF No. 8-14. Everyone agrees (including the Court) that
Plaintiff’s deadline for filing a federal habeas petition was 69 days later, on
February 26, 2025. ECF No. 1 at 61; ECF No. 8 at 8. Petitioner did not file
the instant action until March 18, 2025 — 20 days late. See ECF No. 1.
Petitioner acknowledged the untimeliness in his § 2254 petition. ECF
No. 1 at 61. Petitioner believes equitable tolling should apply because of his
lead counsel’s “serious medical condition.” Id. Respondent disagrees. ECF
No. 8 at 8-10. In support of his claim, Petitioner submitted an affidavit from
prior counsel, Crystal Frusciante, under seal as an exhibit to his response in
opposition to the motion to dismiss. Response, ECF No. 12; Sworn Affidavit,
ECF No. 20. Respondent did not file a reply or contest the facts as articulated
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by Ms. Frusciante in the affidavit. Excepting any legal conclusions and
opinions that Petitioner is entitled to equitable tolling, the Court accepts the
facts presented in the affidavit as true.
II. Basis for Untimeliness
Two board-certified appellate attorneys represented Petitioner during
his post-conviction appellate proceedings: Michael Ufferman (his current
counsel) and Ms. Frusciante. ECF No. 1 at 61 (noting that Ms. Frusciante
was “lead counsel” and Mr. Ufferman, who handled Petitioner’s direct appeal,
“continued to assist Ms. Frusciante as secondary counsel”).3 Tragically, Ms.
Frusciante was diagnosed with terminal metastatic melanoma in May 2023.
ECF No. 20 at 3. She began an aggressive immunotherapy treatment
regime. Id. Though the exact start date is not specified, Ms. Frusciante
indicates “immediate treatment” was required. Id.
The treatment resulted in physical and cognitive side effects ranging
from “intense joint and muscle pain, crumbling teeth and migraine
auras…profound fatigue, inability to concentrate, confusion regarding time,
transposing of numbers and letters, and memory problems.” Id. As of August
2025, Ms. Frusciante “stopped taking cases and is closing her law practice.”
3 Although Mr. Ufferman recognizes he was secondary counsel, he does not offer any
details on the specifics of his role, including whether he made any attempts to calculate
or confirm the habeas deadline.
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Id. at 4. She “only has a very few cases remaining that require minimal
attention and has requested assistance on those cases.” Id.
Ms. Frusciante was aware the Florida Supreme Court declined to hear
Petitioner’s state post-conviction appeal on December 19, 2024. Id. at 1. She
admits she “erroneously calculated” the due date for Petitioner’s federal
habeas petition as March 18, 2025. Id. As discussed earlier, the actual
deadline was February 26, 2025. When Ms. Frusciante realized “shortly
prior” to March 18th that her calculated date was “20 days too late,” she
“requested Michael Ufferman immediately file” the petition. Id. Ms. Frusciante
attributes the error to her cancer and treatment side effects. Id. at 4. She
asserts that Petitioner Moran “wanted the § 2254 petition filed in a timely
manner and was assured that his board certified lawyer would file the petition
timely.” Id. at 1.
In Petitioner’s response to the motion to dismiss, Mr. Ufferman agrees
with Ms. Frusciante that he “continued to assist [her] as secondary counsel.”
ECF No. 12 at 1. When she “realized that the due date” for the habeas
petition “was miscalculated,” she “asked [Mr. Ufferman] to file Petitioner
Moran’s § 2254 petition and argue for equitable tolling…based on her
recently-diagnosed serious medical condition.” Id. at 2. He did so on March
18, 2025. ECF No. 1.
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III. Equitable Tolling
“[E]quitable tolling is an extraordinary remedy which is typically applied
sparingly.” Dodd v. United States, 365 F.3d 1273, 1282 (11th Cir. 2004). A
petitioner seeking equitable tolling must show both “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstances
stood in his way.” Holland v. Florida, 560 U.S. 631, 645 (2010). The
“extraordinary circumstances” required must be “beyond [petitioner’s] control
and unavoidable even with diligence.” Sandvik v. U.S., 177 F.3d 1269 (11th
Cir. 1999). Miscalculating the due date is not an extraordinary circumstance.
Lawrence v. Fla., 549 U.S. 327, 336–37 (2007) (“Attorney miscalculation is
simply not sufficient to warrant equitable tolling, particularly in the
postconviction context where prisoners have no constitutional right to
counsel”); Holland, 560 U.S. at 652, quoting Irwin v. Dep't of Veterans Affs.,
498 U.S. 89, 96 (1990) and Lawrence, 549 U.S. at 336–37 (2007) (“A garden
variety claim of excusable neglect, such as a simple miscalculation that leads
a lawyer to miss a filing deadline, does not warrant equitable tolling”).
“Under well-settled principles of agency law, a petitioner bears the risk
of negligent conduct on the part of his attorney” and “is ordinarily bound by
counsel’s failure to meet a filing deadline.” Cadet v. Fla. Dep't of Corr., 853
F.3d 1216, 1225 (11th Cir. 2017) (internal marks omitted), citing Maples v.
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Thomas, 565 U.S. 280-281 (2012). The exception to this rule is when
counsel abandons, or “essentially” abandons, his or her client. Id., quoting
Maples, 565 U.S. at 282-283. But even gross negligence alone is insufficient.
Id. at 1228-1229 (abandonment does not occur “simply because [the
attorney] blundered and made an unwise, negligent, or grossly negligent
mistake that harmed [the client’s] interests”). Outside of literal abandonment,
constructive abandonment requires the attorney to act “adversely” to the
client with the intent “to act solely for the [attorney’s] own purposes or those
of another person.” Id. at 1229. Even where an attorney failed to do simple
research to correct his misunderstanding of the federal habeas tolling
provision, repeatedly (and wrongly) reassured his client that there was plenty
of time left to file, and filed the petition a year after the deadline, the Eleventh
Circuit found equitable tolling was not warranted. Id. “Although [the]
attorney…screwed up, as lawyers sometimes do, he did not withdraw from
representing [petitioner], renounce his role as counsel, utterly shirk all of his
professional responsibilities to [petitioner], or walk away from the attorney-
client relationship.” Id. at 1234.
The rule articulated in Cadet is “the reason the filing deadline was
missed must be because of abandonment or some other extraordinary
circumstance, not…even gross negligence” alone. Id. A serious medical
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condition of the party, in rare cases, may be enough to qualify as an
extraordinary circumstance. Petitioner Moran cites to one case, Mazola v.
United States, in support of his argument that his counsel’s miscalculation of
the deadline due to side effects from her cancer treatment warrant equitable
tolling. ECF No. 1 at 61; ECF No. 12 at 2. But his reliance on Mazola is
misplaced. There, the Eleventh Circuit affirmed the district court decision to
award the petitioner “42 days of equitable tolling for the time [the petitioner]
was hospitalized during the year after his conviction.” Mazola v. United
States, 294 F. App'x 480, 481 (11th Cir. 2008) (unpublished) (emphasis
added). But this still left his petition 10 days late, and the panel rejected
Mazola’s argument that he was entitled to additional days “because of his
dire medical condition,” finding no clear error in the district court’s finding that
“he failed to show that his medical conditions constituted extraordinary
circumstances during the time that he was not hospitalized or that he acted
diligently to file his § 2254 motion in a timely manner.” Id. at 482. Therefore,
Mazola’s petition was dismissed as untimely. Id.
Other courts have declined to extend equitable tolling based on the
medical condition of the petitioner’s attorney, helper, or the petitioner himself.
See York v. Estes, 2016 WL 8853095, at *4 (N.D. Ala. May 23, 2016), report
and recommendation adopted, 2017 WL 1550257 (N.D. Ala. Apr. 29, 2017)
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(cancer diagnosis and chemotherapy treatment, which made petitioner’s
“jailhouse lawyer” unavailable, was not an extraordinary circumstance for
equitable tolling); Arnold v. Hall, No. CV415-0059, 2015 WL 3409225, at *1–
2 (S.D. Ga. May 5, 2015), report and recommendation adopted, No. CV415-
059, 2016 WL 1238247 (S.D. Ga. Mar. 29, 2016) (equitable tolling did not
apply even though petitioner’s counsel suffered from cancer, failed to file a
state habeas action to toll the deadline, and passed away after the state
supreme court denied certiorari); Lang v. Alabama, 179 F. App'x 650, 652
(11th Cir. 2006) (unpublished) (petitioner not entitled to equitable tolling
despite cancer diagnosis and treatment because he did not show “that his
medical conditions were sufficiently debilitating to constitute extraordinary
circumstances” and that he exercised “enough diligence in pursuing his §
2254 petition during the limitation period”); Robinson v. United States, 327 F.
App'x 816, 819 (11th Cir. 2007) (unpublished) (petitioner’s medical conditions
including heart issues, hernia, scabies, high blood pressure, dental issues,
and lack of proper medication did not warrant equitable tolling).
IV. Discussion
Ms. Frusciante did not abandon Petitioner Moran. Despite being
diagnosed with advanced and aggressive cancer in May 2023—and
presumably beginning treatment shortly thereafter—she never missed a
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deadline involving Moran until the one at issue here in 2025. On June 1,
2023, she filed a timely notice of appeal to the First DCA after the trial court
denied post-conviction relief. ECF No. 8-9 at 424. On October 2, 2023, she
filed the initial brief for the appeal in the First DCA. ECF No. 8-10 at 2-47. On
April 24, 2024, she filed a timely notice to invoke jurisdiction in the Florida
Supreme Court. ECF No. 8-13 at 2-3. In May and June 2024, she filed two
motions for extensions of time for serving the jurisdictional brief, which were
both granted. See Amended Motion for Extension of Time, Filing #
197755517 & Motion for Second Extension of Time, Filing # 199962023,
Moran v. State of Florida, Case No. SC24-0606 (Fla. 2024).4
Her first motion indicated she was experiencing side effects from
recent treatment at a cancer hospital out-of-state and she was “temporarily
unable to complete the jurisdictional brief,” but could do so if given another
thirty-days. Id. at 1-2 of Filing # 197755517. Her second motion, filed June
6, 2024, indicated she “received additional treatment” from the same hospital
4 These filings are not included in Respondent’s exhibits but are publicly available on the
Florida Supreme Court’s online docket. The Court takes judicial notice of Petitioner
Moran’s appeal to the Florida Supreme Court in Case No. SC24-0606 along with the case
filings. “A court may take judicial notice of state and federal court dockets and pleadings.”
Rivera v. DeSantis, No. 24-cv-6, 2024 WL 2264226, at *1 (N.D. Fla. Jan. 18, 2024), report
and recommendation adopted, No. 24-cv-6, 2024 WL 2261950 (N.D. Fla. May 17, 2024)
(citing Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 652 (11th Cir. 2020)); see also
Fed. R. Evid. 201(b)(2) (permitting a court to “judicially notice a fact that is not subject to
reasonable dispute because it…can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned”).
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and the side effects of “progressive, overwhelming fatigue, nausea, and
pain…again rendered [her] temporarily unable to complete” the brief in time.
Id. at 1-2 of Filing # 199962023. Importantly however, she noted that her
“treatment appears to have been successful, allowing for discontinuation of
treatment and side effects are subsiding.” Id. at 2. She also “recently
acquired assistance in completing” the brief “to prevent further delay.” Id. at
n.2. On July 8, 2024, Ms. Frusciante filed the jurisdictional brief. Filing #
202072233 of Moran v. State of Florida, Case No. SC24-0606 (Fla. 2024).
Both Ms. Frusciante and Mr. Ufferman were listed as Petitioner Moran’s
counsel on the brief. Id. at 1, 10.
The Court accepts that Ms. Frusciante miscalculated the deadline for
the instant habeas action because of the side effects from her cancer
treatment. But this is not an extraordinary circumstance to invoke the very
rare remedy of equitable tolling. By Mr. Frusciante’s own account to the
Florida Supreme Court in June 2024, her side effects were subsiding. She
took the additional step of adding Mr. Ufferman as secondary counsel around
the same time to ensure Petitioner Moran was adequately represented. She
was not hospitalized, incapacitated, or otherwise unable to communicate
with Petitioner Moran or Mr. Ufferman. At any point before the February 2025
deadline, both Moran and Ufferman could have calculated the due date for
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themselves and corrected the error before it was too late. Indeed, this would
have been reasonable diligence under the circumstances, especially for Mr.
Ufferman.
Even though Ms. Frusciante’s reason for miscalculating the deadline
was due to a medical condition, it still amounts to attorney negligence.
Precedent from the Supreme Court and the Eleventh Circuit make it clear
that such negligence does not entitle Petitioner Moran to equitable tolling.
Petitioner Moran has not shown either extraordinary circumstances or
diligence—and both are required. His § 2254 petition was filed twenty days
after the deadline. Because it was untimely, his petition must be dismissed.
V. 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,
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483-84 (2000) (explaining substantial showing) (citation omitted). The Court
should deny a certificate of appealability. Rule 11(a) also provides: “Before
entering the final order, the court may direct the parties to submit arguments
on whether a certificate should issue.” Therefore, the parties shall make any
argument as to whether a certificate should issue by filing objections to this
Report and Recommendation.
VI. Recommendation
For the reasons discussed, it is respectfully RECOMMENDED that
Respondent’s motion to dismiss, ECF No. 8, be GRANTED and Petitioner’s
§ 2254 petition, ECF No. 1, be DISMISSED as untimely. It is further
RECOMMENDED that a certificate of appealability be DENIED.
IN CHAMBERS at Tallahassee, Florida on January 5, 2026.
s/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
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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 this
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. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).
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