The opinion of the court was delivered by: Steven D. Merryday United States District Judge
Trease petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges the validity of both his conviction for murder and his sentence of death. The respondent moves (Doc. 15) to dismiss the petition as time-barred. The motion is supported by numerous exhibits. ("Respondent's Exhibit __") Each party replied. (Doc. 24 and 25) The petition is untimely.
FACTS AND PROCEDURAL BACKGROUND
The operative facts supporting the conviction, as found in Trease v. State, 768 So. 2d 1050, 1052 (Fla. 2000) ("Trease I"), are as follows:
On August 17, 1995, Hope Siegel arranged a date with the victim, Paul Edenson, so Trease could learn where the victim hid his safe. When Siegel arrived at the victim's home they talked for a while, after which Siegel departed and walked to Trease's location, and told him that the victim did not have a safe. Trease followed her back to the victim's house where he surprised the victim and battered him in an effort to get the sought-after information. Upon the victim's insistence that he did not have a safe in the house, Trease told Siegel to get a gun which Trease put to the victim's head as he continued the questioning. The victim remained uncooperative so Trease fired a nonlethal bullet into his head and then sent Siegel for a knife with which he cut the victim's throat. An expert medical witness testified that the victim would have died a few minutes later.
Subsequent to their arrest, Trease denied any knowledge of the crime, but Siegel made a taped statement implicating both. The State had no physical evidence tying Trease to the crime, so Siegel's testimony was critical at trial. The jury found Trease guilty of first-degree murder, burglary, and robbery with a firearm.
The findings supporting the death sentence, as determined in Trease I, 768 So. 2d at 1052-53, are as follows:
During the penalty phase of the trial, the State submitted aggravating evidence that Trease had been previously convicted of several violent felonies; that the murder was committed to facilitate a burglary or robbery, to gain a pecuniary interest, and to avoid lawful arrest; and that the murder was heinous, atrocious, and cruel. Trease submitted mitigating evidence that he was abused as a child, that he adjusted well to incarceration, that he helped prevent the suicide of an inmate, and that Siegel had received a disparate sentence. The trial court imposed the death sentenceFN1 in compliance with the jury's eleven-to-one vote and Trease filed the instant appeal.
FN1. The trial court found the following statutory aggravating factors: (1) previous violent felonies against persons; and that the murder was committed (2) while engaged in a burglary or robbery, (3) to avoid arrest, and (4) for pecuniary gain; and (5) the murder was heinous, atrocious or cruel. Based on Trease's evidence, the trial court found three non-statutory mitigating factors and assigned weight to each factor: (1) Trease's abuse as a child - "considerable" weight; (2) Trease adjusted well to incarceration and helped prevent an inmate suicide - "little or no" weight; and (3) Siegel's disparate sentence - "little" weight. The trial court gave "great weight" to the jury's recommendation, and concurred "with the jury's finding that the aggravating circumstances found to exist outweigh[ed] the mitigating circumstances."
A procedural background is required to understand the respondent's timeliness argument.
The respondent's motion to dismiss thoroughly reviews the convoluted procedural background (Doc. 15 at 3-11), which is summarized as follows. Trease's murder conviction and sentence were affirmed on direct appeal. Trease I, 768 So. 2d at 1050. In response to Trease's motion to dismiss counsel, the Capital Collateral Regional Counsel - Middle Region ("CCRC-M") filed a "shell" petition for post-conviction relief questioning Trease's competency. The post-conviction court conducted a hearing, found Trease competent, and dismissed both CCRC-M and their petition. Nearly a year later Trease "changed his mind" and, at his request, the post-conviction court re-appointed CCRC-M and re-instated the earlier "shell" petition. After summarily denying some claims the court conducted an evidentiary hearing. Before the post-conviction court issued its final order, Trease again moved to dismiss his counsel. CCRC-M appealed the denial of relief, which caused Trease to complain to the Florida supreme court that he had authorized no appeal. After briefing in the supreme court, an additional hearing in the post-conviction court, and more briefing in the supreme court, Trease v. State, 41 So.3d 119 (Fla. 2010) ("Trease II"), dismissed the appeal of the denial of post-conviction relief. Trease's Section 2254 petition followed.
The respondent moves to dismiss the petition as time-barred. The Anti-Terrorism and Effective Death Penalty Act created a limitation for a petition for the writ of habeas corpus under 28 U.S.C. § 2254. "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 . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, "[t]he time during which a properly filed application for State post-conviction or other ...