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Burney v. Secretary, Florida Department of Corrections

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

April 28, 2017

MORRIS T. BURNEY, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al, Respondents.

          ORDER

          TIMOTHY J. CORRIGAN United States District Judge.

         I. Status

         Petitioner initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) (Petition) and a Memorandum in Support of the Petition (Doc. 2) (Memorandum). He challenges a 1988 state court (Duval County, Florida) judgment of conviction for murder and kidnapping, for which he is serving life imprisonment. Respondents contend that the Petition was untimely filed, and therefore, this case must be dismissed. See Motion to Dismiss Petition for Writ of Habeas Corpus (Doc. 14) (Motion).[1]Petitioner filed a Reply to State's Motion to Dismiss (Doc. 17) (Reply). The case is ripe for review.[2]

         II. One-Year Limitations Period

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection:

(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 the 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 factual predicate of 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 subsection.

28 U.S.C. § 2244(d).

         III. Analysis[3]

         There is no dispute that Petitioner's conviction in this case became final before AEDPA's effective date (April 24, 1996). Thus, he had until April 24, 1997 to file a federal habeas corpus petition. Between the effective date of AEDPA and the expiration of the one-year limitations period, Petitioner did not have any properly filed post-conviction motions or other requests for collateral relief pending. Thus, Petitioner's deadline to file a federal habeas petition expired on April 24, 1997, without the filing of any motions that would toll that time. While Petitioner filed motions after the expiration of the one-year limitations period, such filings did not toll the limitations period because the period had already expired. See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (stating that where a state prisoner files post-conviction motions in state court after the AEDPA limitations period has expired, those filings cannot toll the limitations period because “once a deadline has expired, there is nothing left to toll”); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (per curiam) (“Under § 2244(d)(2), even ...


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