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Pitts v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Fort Myers Division

May 30, 2017

SAVARIO S. PITTS, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.[1]

          ORDER OF DISMISSAL

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon an amended petition for habeas corpus relief filed through counsel pursuant to 28 U.S.C. § 2254 by Savario S. Pitts (“Petitioner”), a prisoner of the Florida Department of Corrections (Doc. 8, filed November 9, 2015). Petitioner, proceeding pro se, attacks the convictions and sentences entered by the Twentieth Judicial Circuit Court in Charlotte County, Florida for robbery with a deadly weapon, carjacking with a weapon, and dealing in stolen property. Id. at 1.

         Respondent asserts that this Court must dismiss the amended petition because it was not timely filed (Doc. 11, filed March 11, 2016). Petitioner has filed a reply in which he asserts that Respondent has miscalculated the AEDPA filing deadline, and that the petition is indeed timely (Doc. 16). The petition is ripe for review.

         Petitioner raises three claims in his petition (Doc. 1). However, the Court cannot reach the merits of these claims because, as explained below, the pleadings, exhibits, and attachments before the Court establish that the petition must be dismissed as untimely.

         I. Background and Procedural History[2]

         On July 13, 2004, a jury found Petitioner guilty of robbery with a deadly weapon (count one); carjacking with a weapon (count two); and dealing in stolen property (count three) (Ex. 2 at 3). Petitioner was sentenced to thirty years in prison. Id. On March 8, 2006, Plaintiff's convictions and sentences were affirmed by Florida's Second District Court of Appeal (Ex. 1); Pitts v. State, 923 So.2d 1173 (Fla. 2d DCA 2006).

         On April 13, 2007, Petitioner filed a state petition for writ of habeas corpus in which he alleged ineffective assistance of appellate counsel (Ex. 2). The state habeas petition was dismissed on October 31, 2007 (Ex. 4).

         On October 12, 2007, Petitioner filed a pro se motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. 3). The post-conviction court denied the Rule 3.850 motion on November 26, 2012 (Doc. 1-1 at 2-11). Florida's Second District Court of Appeal affirmed on January 3, 2014. Mandate issued on April 9, 2014 (Ex. 5).

         On June 6, 2014, Petitioner filed a motion to correct an illegal sentence pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. 6). The state trial court denied the motion on September 4, 2014 (Ex. 7). Petitioner appealed, the denial, and the appeal was still pending when Petitioner filed his federal habeas petition.

         Petitioner filed his first habeas petition in this Court on July 1, 2015 (Doc. 1). Petitioner filed an amended petition on November 9, 2015 (Doc. 8).

         II. Analysis

         a. A 28 U.S.C. § 2254 federal habeas corpus petition is subject to a one-year statute of limitation

         Pursuant to the requirements set forth in 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-year period of limitation applies to the filing of a habeas petition by a person in custody pursuant to a state court judgment. This limitation period runs 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 ...

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