United States District Court, M.D. Florida, Orlando Division
DALTON JR. United States District Judge
cause is before the Court on a petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1).
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. 12).
Petitioner filed a reply to the response (Doc. 15) and an
amended reply (Doc. 17).
alleges one claim for relief in his habeas petition. However,
as discussed hereinafter, the Court finds the petition is
was charged by information with two counts of sexual battery
on a child less than twelve years of age (counts one and two)
and one count of lewd, lascivious, or indecent act upon a
child (count three) (Doc. 13-1 at 18). The State filed a
notice of intent to seek habitual felony offender penalties.
Id. at 20. Petitioner entered a negotiated no
contest plea to the lesser included offenses of attempted
sexual battery for counts one and two and to count three as
charged. Id. at 21-22. The trial court accepted the
plea and on May 21, 2001, sentenced Petitioner to two
forty-eight-year terms of imprisonment as a habitual felony
offender (“HFO”) for counts one and two, with
thirty years as a prison releasee reoffender
(“PRR”) and to a thirty-year term of imprisonment
for count three as an HFO with fifteen years as a PRR.
Id. at 21-22, 27-34. Petitioner did not appeal.
April 10, 2003,  Petitioner filed a motion for
post-conviction relief pursuant to Rule 3.850 of the Florida
Rules of Criminal Procedure. Id. at39-58. The trial
court held an evidentiary hearing on Petitioner's motion,
after which it denied the motion (Doc. Nos. 13-2 at 2-4,
50-106; 13-3 at 1-16). Petitioner appealed, and the Fifth
District Court of Appeal (“Fifth DCA”) affirmed
per curiam on May 18, 2004 (Doc. 13-3 at 33).
Mandate issued on June 4, 2004. Id.
February 15, 2008, Petitioner file a motion to correct
illegal sentence pursuant to Rule 3.800(a) of the Florida
Rules of Criminal Procedure. Id. at 39-46. The trial
court denied the motion on March 7, 2008. Id. at 58.
Petitioner appealed, and the Fifth DCA affirmed per
curiam on May 6, 2008. Id. at 61. Mandate
issued on May 23, 2008. Id. at 63.
filed a second Rule 3.800(a) motion on December 27, 2011.
Id. at 66. The trial court denied the motion on
March 9, 2012. Id. at 66-68. Petitioner did not
appeal. However, Petitioner later filed a petition for
belated appeal, which the Fifth DCA granted on November 30,
2012. Id. at 64. The Fifth DCA affirmed per
curiam on February 12, 2013. Id. at 81. Mandate
issued on March 8, 2013. Id. at 82.
filed a third Rule 3.800(a) motion in 2013 which was denied
on October 13, 2013 (Doc. 13 at 3). On April 8, 2014, the
Fifth DCA affirmed per curiam (Doc. 13-3 at 112).
Mandate issued on May 2, 2014. Id. at 113.
filed a fourth Rule 3.800(a) motion on July 20, 2015.
Id. at 115-24. The trial court denied the motion
(Doc. 13-4 at 4-5). The Fifth DCA affirmed per
curiam on December 15, 2015. Id. at 45. Mandate
issued on January 8, 2016. Id. at 46. Petitioner
filed his federal habeas petition on February 16, 2016 (Doc.
Timeliness of the Petition
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