United States District Court, M.D. Florida, Jacksonville Division
CLEAVE A. THOMAS, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
J. DAVIS UNITED STATES DISTRICT JUDGE.
Cleave A. Thomas, an inmate of the Florida penal system,
initiated this action on October 20, 2014,  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. 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).
One-Year Period of Limitation
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
(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).
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.
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. 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 ...