Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). 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. No. 10). Petitioner was provided an opportunity to file a reply to the response but did not do so.
Petitioner alleges one claim for relief in his petition, counsel rendered ineffective assistance by failing to obtain a psychiatric examination of Petitioner to demonstrate he was incompetent. As discussed hereinafter, the Court concludes that the petition is untimely and must be dismissed.
Petitioner entered pleas of guilty and no contest respectively in case numbers 05-cf-57249 to lewd and lascivious battery and in case number 05-cf-57521 to attempted sexual battery of a person less than twelve years of age. On October 20, 2006, the trial court sentenced Petitioner to a fifteen-year term of imprisonment for the attempted sexual battery conviction to be followed by fifteen years of sex offender probation and to a concurrent fifteen-year term of sex offender probation for the lewd and lascivious battery conviction. Petitioner did not appeal.
Petitioner filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief on October 22, 2007.*fn1 The state court summarily denied the motion on February 28, 2008. Petitioner subsequently filed a petition for belated appeal in the Fifth District Court of Appeal of Florida, which granted the petition on May 1, 2009. The Fifth District Court of Appeal of Florida subsequently affirmed the trial court's denial of Petitioner's Rule 3.850 motion on July 14, 2009. Mandate was issued on August 5, 2009.
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 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 toward any period of limitation under this section.
Pursuant to § 2244(d)(1)(A), Petitioner had one year, absent any tolling, from the date his convictions became final to file his federal habeas corpus petition. Petitioner's state court judgments are dated October 20, 2006. He then had thirty days to file a direct appeal. See Fla. R. App. P. 9.140(b)(3). Because Petitioner did not file a direct appeal, his convictions became final on November 19, 2006, thirty days after the written ...