Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brubacher v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Orlando Division

March 29, 2017

JASON BRUBACHER, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          ROY B. DALTON JR. United States District Judge

         This 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).

         Petitioner alleges one claim for relief in his habeas petition. However, as discussed hereinafter, the Court finds the petition is untimely filed.

         I. Procedural History

         Petitioner 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.

         On April 10, 2003, [1] 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.

         On 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.

         Petitioner 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.

         Petitioner 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.

         Petitioner 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. 1).

         II. Timeliness of the Petition

         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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.