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Marks Massey v. Secretary

January 13, 2012

MARKS MASSEY, 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). 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. 7). 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, that counsel rendered ineffective assistance by failing to argue that Petitioner was insane at the time of the offense. As discussed infra, the Court concludes that the petition is untimely and must be dismissed.

I. Procedural History

Petitioner was charged by information in case number 2004-38043CFAES with burglary of a dwelling. Petitioner entered a plea of nolo contendere and was sentenced to two years of probation on October 5, 2005. (App. A at 8.) Petitioner did not appeal.

On July 13, 2006, Petitioner was charged with violating his probation based on the commission of robbery with a weapon as charged in case numbers 2006-33523CFAES and 2006-33524CFAES. Id. at 9. On September 13, 2006, Petitioner pled guilty to violation of probation ("VOP") and entered a plea of nolo contendere in case number 2006-33523CFAES. The state court sentenced Petitioner to concurrent fifteen-year terms of imprisonment for the VOP and for the conviction in case number 2006-33523CFAES. Id. at 14-20, 22-28. The State nol prossed the charge in case number 2006-33524CFAES. Petitioner did not appeal.

On September 11, 2008, Petitioner filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief in case numbers 2004-38043CFAES and 2006-33523CFAES.*fn1 (App. B at 15.) The state court struck the motion as facially insufficient with leave to amend. Petitioner filed an amended motion, which the state court dismissed. Id. at 89. Petitioner appealed, and the Fifth District Court of Appeal of Florida affirmed per curiam. Mandate was issued on October 12, 2009. Id. at 102.

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 ...


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