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Robinson v. Secretary, Department of Corrections

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

June 13, 2017

VERNON ROBINSON, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, TENA M. PATE, Parole Commission Chairman, MELINDA N. COONRD, Commission Secretary, and BERNARD R. CHEN, SR., Commission Vice Chairman, Respondents.

          ORDER

          TIMOTHY J. CORRIGAN United States District Judge

         I. Status

         Petitioner Vernon Robinson, an inmate of the Florida penal system, initiated this action by filing a pro se § 2241 Habeas Corpus Petition (Doc. 1, Petition) on June 4, 2014, which he supplemented on August 28, 2014 (Doc. 15, Supp. Pet.).[1] Robinson also filed an appendix (Doc. 3, Pet. App.) and a supplemental appendix (Doc. 2, Supp. App.).[2] Robinson is in state custody, incarcerated at Union Correctional Institution (Union County), pursuant to a 1982 (Duval County) judgment of conviction for armed robbery with a deadly weapon, for which he was sentenced to sixty years' imprisonment. In grounds one through nine, Robinson challenges the computation of his sentence by the Department of Corrections (DOC) with respect to gain time and other credit for time served.[3] Petition at 3-4. In grounds ten through twelve, Robinson challenges the calculation of his presumptive parole release date (PPRD) by the Florida Commission on Offender Review (FCOR).[4] Petition at 14-16; Supp. Pet. at 1-2. “Presumptive parole release date” means the tentative parole release date as determined by objective parole guidelines. See Fla. Stat. § 947.005(8).

         Respondent DOC responded (Doc. 16, DOC Response) to grounds one through nine, asserting that Robinson's claims are untimely, meritless, and not cognizable in federal habeas corpus. DOC Response at 11 & n.4, 12. Robinson replied (Doc. 17, Reply to DOC).

         Respondent FCOR responded (Doc. 29, FCOR Response) to grounds ten through twelve, asserting that Robinson's claims are untimely and unexhausted. Alternatively, Respondent contends that Robinson's claims are meritless. Robinson replied (Doc. 30, Reply to FCOR).

         This case is ripe for review.

         II. Pertinent Procedural History [5]

         In 1982, the state court entered a judgment of conviction and sentenced Robinson to a term of sixty years imprisonment. FCOR Resp. Ex. D. In 1984, the FCOR established Robinson's initial PPRD of August 16, 2009. FCOR Resp. Ex. E. Following several reviews that resulted in adjustments to his PPRD (see id.), Robinson was eventually released on parole supervision on November 12, 1996. FCOR Resp. Ex. F. After Robinson violated the terms and conditions of his parole supervision several times, the FCOR revoked his parole on October 15, 2003. FCOR Resp. Ex. F. Robinson unsuccessfully challenged the revocation of his parole in state court. See FCOR Response at 4, n.2 & Ex. G.

         Following revocation of parole, on June 23, 2004, the FCOR established Robinson's new PPRD of December 28, 2019. FCOR Resp. Ex. H. On July 10, 2004, Robinson administratively appealed the FCOR's decision establishing his PPRD. Id. After reviewing Robinson's appeal, the FCOR found on August 11, 2014, that the issues Robinson raised in his administrative review request did not merit modification of his PPRD. Id. Robinson challenged the FCOR's decision by filing a petition for a writ of mandamus in state circuit court, which the court denied on August 26, 2005. FCOR Resp. Ex. I.

         Subsequently, the FCOR has re-interviewed Robinson at least five times.[6] Other than one six-month reduction, his PPRD has remained unchanged. FCOR Resp. Ex. J. As such, his current PPRD is June 28, 2019.[7] Id.

         III. One-year Limitations Period

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs petitions filed after its effective date of April 24, 1996. See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA amended 28 U.S.C. § 2244 by adding the following subsection:

(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 conclusion 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 the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The 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 shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). Where a petitioner asserts multiple claims with different dates triggering the statute of limitations under § 2244(d)(1), the applicable trigger date is determined on a claim-by-claim basis. Zack v. Tucker, 704 F.3d 917, 926 (11th Cir. 2013).

         Under § 2244(d)(1)(D), the limitations period begins to run on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Brown v. Barrow, 512 F.3d 1304, 1307 & n.1 (11th Cir. 2008) (quoting 28 U.S.C. § 2244(d)(1)(D)); see also Hawes v. Howerton, 335 F. App'x 882, 884 (11th Cir. 2009); Ray v. Mitchem, 272 F. App'x 807, 809-10 (11th Cir. 2008). Once triggered, the limitations period can be tolled in two ways: through statutory tolling or equitable tolling. Brown, 512 F.3d at 1307; seealso 28 U.S.C. § 2244(d)(2) (statutory tolling); Damren v. Florida, 776 F.3d 816, 821 (11th Cir. 2015) (“When a prisoner files for habeas corpus relief outside the ...


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