United States District Court, M.D. Florida, Fort Myers Division
SAVARIO S. PITTS, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.
ORDER OF DISMISSAL
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
Background and Procedural
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).
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).
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
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.
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).
A 28 U.S.C. § 2254 federal habeas corpus petition is
subject to a one-year statute of limitation
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 ...