United States District Court, M.D. Florida, Orlando Division
JOSE A. TIRADO, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
DALTON JR United States District Judge
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.
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.
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.
February 18, 2013,  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.
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.
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).
Timeliness of the Petition
to 28 U.S.C. § 2244:
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