Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1, filed June 2, 2011). Respondents filed a response to the petition in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. 8, filed August 8, 2011). In the response, Respondents argued that the petition should be dismissed as untimely. Despite being informed of his right to do so (Doc. 10), Petitioner did not file a reply to the response.
Petitioner alleges one claim for relief in his petition. In the claim, Petitioner argues that trial counsel failed to investigate and present an insanity defense at his trial, even though Petitioner's father had informed trial counsel that Petitioner had a history of mental health problems (Doc. 1 at 6). Petitioner also argues that equitable tolling should excuse the untimeliness of the petition. Id. This Court concludes, for the reasons set forth below, that the petition was untimely filed and should be dismissed.
On June 28, 2005, Petitioner was indicted for First Degree Felony Murder (count one) and Attempted Robbery with a Firearm (count two)(App. A at 4-6).*fn1 On May 19, 2006, after a jury trial, Petitioner was convicted as charged on both counts and received life in prison with a 25-year minimum mandatory term on count one and a concurrent term of fifteen years on count two (App. E). Petitioner filed a notice of appeal on June 9, 2006, and the Fifth District Court of Appeal per curiam affirmed on July 20, 2007 (App. I); Burgues v. State, 961 So. 2d 1042 (Fla. 5th DCA 2007). Mandate issued on August 8, 2007 (App. J).
Petitioner filed a pro se Florida Rule of Criminal Procedure 3.850
motion for post-conviction relief on May 1, 2009 (App. M).*fn2
The trial court denied the motion on November 10, 2010 (App.
O) and the Fifth District Court of Appeal per curiam affirmed on March
15, 2011) (App. Q); Burgues v. State, 59 So. 3d 126 (Fla. 5th DCA
2011). Mandate issued on April 7, 2011 (App. R).
Petitioner filed the instant petition on May 23, 2011 (Doc. 1).
a. Petitioner's Habeas Corpus Petition is Untimely
Pursuant to 28 U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"):
(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 that 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 facts supporting 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 ...