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Robert Stewart Harris v. Secretary

November 7, 2011

ROBERT STEWART HARRIS, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL., RESPONDENTS.



ORDER

A. Status

Petitioner Robert Stewart Harris, an inmate of the Florida penal system who is proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (Petition) (Doc. #1) with exhibits under 28 U.S.C. § 2254 on June 21, 2010, pursuant to the mailbox rule.*fn1 He challenges a 2000 state court (Columbia County, Florida) judgment of conviction for conspiracy to commit first degree murder and first degree murder. He was sentenced to death on June 23, 2000; however, the death sentence was reversed on appeal, and Petitioner was sentenced to life in prison without the possibility of parole on September 17, 2003.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations on petitions for writ of habeas corpus. Specifically, 28 U.S.C. § 2244 provides:

(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).

Respondents contend that Petitioner has not complied with the one-year period of limitations set forth in 28 U.S.C. § 2244(d). See Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus (Doc. #21) (Response). In support of their contentions, they have submitted exhibits.*fn2 See Exhibits (Doc. #22). Petitioner was given admonitions and a time frame to respond to the request to dismiss the Petition contained within the Response. See Court's Order (Doc. #9). Petitioner filed an Amended Reply (Doc. #27) (hereinafter Reply).

B. One-Year Limitations Period

The following procedural history is relevant to the one-year limitations issue. After a jury trial, Petitioner was convicted of conspiracy to commit murder in the first degree and murder in the first degree. Ex. 5. The jury provided an advisory sentence, by a vote of 7 to 5, that the court impose the death penalty. Ex. 9. Petitioner was sentenced to thirty years on Count I (the conspiracy count) and to death on Count II (the murder count). Ex. 13. The judgment and sentence was entered on June 23, 2000. Ex. 14. Petitioner appealed. Ex. 16; Ex. 17; Ex. 18. The Supreme Court of Florida, in its opinion of March 27, 2003, affirmed the conviction but vacated the death sentence and remanded the case to the trial court for a new penalty phase proceeding. Ex. 19; Harris v. State, 843 So.2d 856 (Fla. 2003) (per curiam).

A Stipulation as to Resentencing on Count II of the Indictment was filed on August 22, 2003, stipulating to a sentence of life imprisonment as to Count II, signed by Petitioner, the Assistant Public Defender, and the Assistant State Attorney. Ex. 20. The court, in its order of September 17, 2003, sentenced Petitioner to life without the possibility of parole on Count II, to be served concurrently with the sentence under Count I. Id. Petitioner did not seek an appeal. Therefore, his conviction became final on Friday, October 17, 2003, when the time to appeal expired. Response at 11.

The one-year period of limitations started running on October 18, 2003, the day after Petitioner's conviction became final, and expired on Monday, October 18, 2004, utilizing the anniversary method. Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008). Petitioner did not have any applications for post conviction relief pending in the state court system through the expiration of the one-year AEDPA limitations period.

Indeed, Petitioner did not file a request for documents to prepare his post conviction motion until March 16, 2005, Ex. 21, and he did not file his post conviction motions until May 26, 2005, pursuant to the mailbox rule. Ex. 22A; Ex. 23A. These motions did not toll the federal one-year limitations period because it had already expired on October 18, 2004. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (per curiam), cert. denied, 531 U.S. 991 (2000) ("Under ยง 2244(d)(2), even 'properly filed' state-court petitions must be 'pending' in order to toll the limitations period. A state-court petition like ...


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