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Johnny L. Grubbs, Jr v. Secretary

January 3, 2012

JOHNNY L. GRUBBS, JR., PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL., RESPONDENTS.



ORDER

Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted. Thereafter, Respondents filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. No. 9). Although given an opportunity to file a reply, Petitioner has not done so.

Petitioner alleges two claims for relief. However, as discussed hereinafter, the Court finds that the petition is untimely and must be denied.

I. Procedural History

Petitioner was charged with two counts of DUI manslaughter-failure to give aid (counts one and two), one count of DUI with serious bodily injury (count three), and two counts of vehicle homicide-failure to give aid (counts four and five) (App. A). The State entered a nolle prosequi with respect to count three (App. B at 24). After a jury trial on the remaining counts, Petitioner was convicted of the lesser included offenses of DUI manslaughter for counts one and two, and of the lesser included offenses of vehicular homicide for counts three and four (App. E). The trial court set aside the convictions for counts three and four because they were subsumed within counts one and two (App. F at 4-5). Petitioner was sentenced to concurrent 20.5-year terms of imprisonment (App. G). Petitioner appealed, and while his appeal was pending, filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) (App. H & I). The trial court denied the Rule 3.800(b)(2) motion (App. J). On December 26, 2006, the Fifth District Court of Appeal affirmed per curiam (App. M).

On January 9, 2009,*fn1 Petitioner filed a Rule 3.850 motion for post-conviction relief (App. O). The trial court summarily denied the motion on January 25, 2010 (App. Q). Petitioner appealed, and on August 17, 2010, the Fifth District Court of Appeal affirmed per curiam (App. S). Mandate was issued on September 8, 2010 (App. T). Petitioner filed his federal habeas petition on September 22, 2010 (Doc. No. 1).

II. Petitioner's Habeas Corpus Petition Is Untimely

Pursuant to 28 U.S.C. § 2244:

(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 consideration 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 toward any period of limitation under this section.

28 U.S.C. § 2244(d).

In the present case, the state appellate court entered its per ...


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