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Tirado v. Secretary, Department of Corrections

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

May 5, 2017

JOSE A. TIRADO, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          ROY B. DALTON JR United States District Judge

         This cause is before the Court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). Thereafter, Respondents filed a response to the petition in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. 7). Petitioner filed a reply (Doc. 10).

         Petitioner alleges three claims for relief in his habeas petition. However, as discussed hereinafter, the Court concludes that an evidentiary hearing is warranted on the issue of whether Petitioner is entitled to equitable tolling of the one-year statute of limitations.

         I. Procedural History

         Petitioner was charged by amended information with lewd or lascivious molestation (count one) and sexual battery on a person less than twelve years of age (count two) (Doc. 7-1 at 5). After a jury trial, Petitioner was convicted as charged. Id. at 521-22. However, the trial court entered a nolle prosequi on count one. Id. at 516. The trial court sentenced Petitioner to a term of life in prison for count two. Id. at 526-29. Petitioner appealed, and the Fifth District Court of Appeal (“Fifth DCA”) per curiam affirmed Petitioner's convictions and sentences on February 15, 2011. Id. at 587.

         On February 18, 2013, [1] Petitioner filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel with the Fifth DCA. Id. at 591-94. The Fifth DCA denied the petition without discussion on June 21, 2013. Id. at 614.

         On March 7, 2013, Petitioner filed a motion for extension of time to file a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. Id. at 616-18. The trial court granted the motion for extension of time and gave Petitioner six months to file a Rule 3.850 motion. Id. at 630-31.

         On September 13, 2013, Petitioner filed a Rule 3.850 motion. Id. at 633-48. Petitioner filed a second Rule 3.850 motion on January 19, 2014. Id. at 649-66. Petitioner subsequently file two motions for leave to amend on August 15, 2014, and September 11, 2014. Id. at 668-703. The trial court denied the merits of Petitioner's motions on June 22, 2015. Id. at 718-34. Petitioner appealed, and on November 10, 2015, the Fifth DCA affirmed per curiam. Id. at 937. Mandate issued on January 14, 2016. Id. at 952. Petitioner filed his federal habeas petition on February 17, 2016 (Doc. 1).

         II. Timeliness of the Petition

         Pursuant to 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 consideration 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 that right has been newly recognized by the Supreme Court and made ...

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