United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. COORRIGAN, United States District Judge
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). 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.
One-Year Limitations Period
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
amended 28 U.S.C. § 2244 by adding the following
(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
28 U.S.C. § 2244(d).
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)). 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.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 ...