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Vance v. Secretary, Florida Department of Corrections

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

May 1, 2017

GREGORY VANCE, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          TIMOTHY J. COORRIGAN, 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). He is proceeding on an Amended Petition (Doc. 7) (Amended Petition). He challenges a 2005 state court (Duval County, Florida) judgment of conviction for petit theft, armed kidnapping, sexual battery of a person twelve years of age or older, aggravated battery, and dealing in stolen property. He is serving life imprisonment. Respondents contend that the Petition was untimely filed, and therefore, this case must be dismissed. See Motion to Dismiss (Doc. 17) (Motion).[1] Petitioner did not file a reply, even after being directed to file one, and the time in which to do so has passed. 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

         On February 8, 2005, the state court entered judgment against Petitioner. Ex. A. Petitioner, through counsel, filed a notice of appeal. Ex. B. On May 18, 2006, the First District Court of Appeal (DCA) per curiam affirmed the judgment of conviction without entering a written opinion. Ex. C. Petitioner's judgment became final ninety days later on August 16, 2006. See Clay v. United States, 537 U.S. 522 (2003); Close v. United States, 336 F.3d 1283, 1285 (11th Cir. 2003) (“According to rules of the Supreme Court, a petition for certiorari must be filed within 90 days of the appellate court's entry of judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days of the appellate court's denial of that motion.” (citing Supreme Court Rule 13.3)).[3] Therefore, the one-year period of limitations began to run on August 17, 2006, and it continued to run for 96 days until November 21, 2006, when Petitioner filed a state court habeas petition alleging ineffective assistance of appellate counsel. Ex. E. The First DCA denied the petition on the merits on January 18, 2007. Ex. F. Petitioner filed a motion for rehearing and clarification, Ex. G, which was denied on March 22, 2007, Ex. H. Petitioner's federal limitations period continued to run the following day (March 23, 2007). He had 269 days remaining in the one-year limitations period. The period expired on December 17, 2007, without the filing of a tolling motion. Indeed, Petitioner waited more than 4 months after the period expired to file another motion in state court. See Ex. I (motion to correct illegal sentence filed May 9, 2008). While Petitioner filed several motions after the expiration of the one-year period, such motions did not toll the time period because there was no time left to toll.[4]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 ...


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