United States District Court, M.D. Florida, Tampa Division
William Lee Chamblee Counsel of Record.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
Lee Chamblee, a Florida prisoner, filed a pro se
petition for writ of habeas corpus under 28 U.S.C. §
2254. (Doc. 1.) He challenges his convictions entered by the
Circuit Court for the Sixth Judicial Circuit, in and for
Pasco County. Respondent asserts that the petition is
time-barred. (Doc. 9.) Chamblee filed a reply. (Doc. 15.)
Upon consideration, the petition is dismissed as time-barred.
entered a plea of nolo contendere to one count of second
degree murder. (Doc. 12, Ex. 1.) The trial court sentenced
him to 30 years in prison. (Id.) The state appellate
court per curiam affirmed. (Doc. 12, Ex. 3.)
Chamblee's motion to correct illegal sentence filed under
Florida Rule of Criminal Procedure 3.800(a) was denied. (Doc.
1, p. 4; Doc. 12, Ex. 4.) The state appellate court affirmed.
(Id.) The state appellate court also denied
Chamblee's habeas petition filed under Florida Rule of
Appellate Procedure 9.141. (Doc. 12, Ex. 5.) Chamblee next
filed a motion for postconviction relief under Florida Rule
of Criminal Procedure 3.850. (Doc. 12, Ex. 6.) The motion was
denied, and the state appellate court per curiam
affirmed. (Doc. 12, Exs. 6, 7.) The state court also
dismissed Chamblee's motion for return of property. (Doc.
12, Ex. 8.) The state appellate court reversed and remanded
for further proceedings. (Doc. 12, Ex. 9.)
OF FEDERAL HABEAS PETITION
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides a one-year period of
limitations for filing a § 2254 federal habeas petition.
28 U.S.C. § 2244(d)(1). Lawrence v. Florida,
549 U.S. 327, 331 (2007). This period runs from the later of
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
state appellate court per curiam affirmed
Chamblee's judgment on September 2, 2011. (Doc. 12, Ex.
3.) His judgment therefore became final 90 days later, on
December 1, 2011, when the time for filing a petition for
writ of certiorari in the United States Supreme Court
expired. Clay v. United States, 537 U.S. 522, 527
(2003); Bond v. Moore, 309 F.3d 770, 774 (11th Cir.
assertion that his judgment did not become final for another
twenty days must be rejected. He notes that his motions for
rehearing on direct appeal were denied on September 22, 2011.
He contends that his conviction therefore did not become
final until December 21, 2011. Chamblee is correct that a
motion for rehearing generally delays the start of the 90-day
period to petition for a writ of certiorari. See
Sup. Ct. R. 13.3. However, Chamblee's motions for
rehearing were nullities because he filed them pro
se while he was represented by counsel. His own
supporting documentation shows that the state appellate court
noted “strike pro se rehearing/represented” in
disposing of his motions. (Doc. 15, p. 7.) Under Florida law,
pro se pleadings by represented defendants are
considered nullities. See Sheppard v. State, 17
So.3d 275 (Fla. 2009). Although Sheppard recognizes
“a limited exception to the rule of striking pro se
pleadings as nullities, ” this exception is irrelevant
to Chamblee's motions for rehearing because it applies
only to some motions to withdraw plea. Id. at 277.
Therefore, Chamblee's stricken motions for rehearing
filed in the state appellate court had no effect on the
finality of that court's judgment, and did not delay
commencement of the 90-day period to file a petition for writ
Chamblee's limitations period began to run on December 2,
2011, the day after his judgment became final. He had one
year to file his federal habeas petition absent the filing of
any tolling applications. See 28 U.S.C. §
2244(d)(2) (the limitations period is tolled for “[t]he
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.”).
of 39 days of untolled time ran before Chamblee filed his
Rule 3.800(a) motion to correct illegal sentence on January
9, 2012. (Doc. 12, Ex. 4.) This motion remained pending until
the state appellate court issued its mandate on December 14,
2012. (Id.) By that date, however, Chamblee had
already filed a habeas petition alleging ineffective
assistance of appellate counsel pursuant to Florida Rule of
Appellate Procedure 9.141. (Doc. 12, Ex. 5.) The state
appellate court denied the petition, and the tolling of
Chamblee's AEDPA limitations period continued until the
state appellate court denied his motion for rehearing on
February 18, 2013. (Id.) Another 291 days of
untolled time, for a total of 330 days, ran until Chamblee
filed his Rule 3.850 motion for postconviction relief on
December 6, 2013. (Doc. 12, Ex. 6.) This motion was pending
until December 31, 2015, when the state appellate court
issued its mandate affirming the denial of relief. (Doc. 12,
Ex. 7.) Another 40 days of untolled time, for a grand total
of 370 days, passed before Chamblee filed his federal habeas
petition by providing it to prison officials for mailing on
February 9, 2016. Accordingly, Chamblee's petition is
untimely because it was filed after the one-year limitations
the Court notes that Chamblee filed a motion for return of
property on May 29, 2014, which the state court dismissed as
facially insufficient on June 6, 2014. (Doc. 12, Ex. 8.) His
second motion for return of property, filed on July 22, 2014,
was treated as a motion for rehearing and denied on December
19, 2014. (Id.) The state appellate court reversed
and remanded on November 25, 2015, and its mandate issued on
December 15, 2015. (Id.) It appears that the motion
for return of property therefore may have been pending in the
state trial court in early 2016 pursuant to the remand.
However, this has no effect on the timeliness determination.
limitations period is tolled under § 2244(d)(2) during
the pendency of a “properly filed application for State
post-conviction or other collateral review.” However,
Chamblee's motion for return of property was not an
application for postconviction or other collateral review.
The Supreme Court has defined collateral review as “a
judicial reexamination of a judgment or claim in a proceeding
outside of the direct review process.” Wall v.
Kholi, 562 U.S. 545, 553 (2011).
motion for return of property did not involve a judicial
reexamination of a judgment or claim. Rather, he asked for
the return of items of personal property that he alleged were
being held by police, and the scope of the state court's
review would not have extended beyond determining the
appropriate custody of such property. See Justice v.
State, 944 So.2d 538, 539 (Fla. 2d DCA 2006) (a trial
court's authority “over property seized or obtained
in connection with the proceeding . . . continues beyond the
termination of the prosecution, thus enabling the court to
direct the return of the property to its rightful
owner.”) (quoting Stevens v. State, 929 So.2d
1197, 1198 (Fla. 2d DCA 2006)). As the state court therefore
would not have engaged in a reexamination of the judgment,
Chamblee's motion for return of property was not an
application for collateral review that tolled his AEDPA
limitations period. See Day v. Chatman, 130 Fed.
App'x 349, 351 (11th Cir. 2005) (“Day's . . .
motions for return of property did not toll the limitations
period because the ...