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Thomas v. Secretary, Florida Department of Corrections

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

May 3, 2017

CLEAVE A. THOMAS, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE.

         I. Status

         Petitioner Cleave A. Thomas, an inmate of the Florida penal system, initiated this action on October 20, 2014, [1] by filing a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. 1) under 28 U.S.C. § 2254. Respondents filed a Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely (Response) (Doc. 13) with exhibits.[2] Petitioner submitted a Response to Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely (Reply) (Doc. 14) with Exhibit A. See Order (Doc. 4).

         II. One-Year Period of Limitation

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitation on petitions for writ of habeas corpus. Specifically, 28 U.S.C. § 2244 provides:

(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).

         Respondents contend that Petitioner has not complied with the one-year period of limitation set forth in 28 U.S.C. § 2244(d). The following procedural history is relevant to the one-year limitation issue. On October 14, 2010, Petitioner was charged by third amended information with robbery and aggravated battery. Ex. A at 23. A jury found Petitioner guilty as charged on October 20, 2010. Ex. A at 62-63; Ex. B; Ex. C.

         The trial court entered judgment on November 18, 2010, and sentenced Petitioner to concurrent fifteen-year terms. Ex. A at 113-27; Ex. D at 20-21. Petitioner took a direct appeal. Ex. E; Ex. F; Ex. G. On December 20, 2011, the First District Court of Appeal (1st DCA) affirmed the judgments and sentences but remanded based on improperly imposed costs. Ex. H. The mandate issued on January 18, 2012. Ex. I. On January 13, 2012, nunc pro tunc to November 18, 2010, the circuit court amended the judgment to reflect the proper costs. The amended judgment was filed with the Clerk on January 18, 2012.[3] Ex. J. Thus, his judgment became final thirty days later on Friday, February 17, 2012. See Fla. R. App. P. 9.140(b)(3); Saavedra v. State, 59 So.3d 191, 192 (Fla. 3rd DCA 2011); Gust ...


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