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Colon v. Secretary, Department of Corrections

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

June 20, 2017

RENE OSVALDO CRUZ COLON, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.

          ORDER

          PAUL G. BYRON, UNITED STATES DISTRICT JUDGE

         This cause is before the Court on the Petition for Writ of Habeas Corpus (“Petition, ” Doc. 1) filed by Petitioner pursuant to 28 U.S.C. § 2254. Respondents filed a Response to Petition (“Response, ” Doc. 23) and a Supplemental Response to Petition (Doc. 30). Petitioner filed a Reply (Doc. 28) and a Supplemental Reply (Doc. 32).

         I. Procedural Background

         Petitioner pled guilty to second degree murder, and the trial court sentenced him on January 25, 2013. (Doc. 25-1 at 16-23). Petitioner did not file a direct appeal.

         On October 22, 2013, Petitioner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. (Id. at 25-70).[1] On January 6, 2014, the trial court dismissed the motion without prejudice with leave to file an amended Rule 3.850 motion. (Id. at 77-78). Petitioner filed an amended Rule 3.850 motion, which the trial court denied on June 19, 2014. (Id. at 123-33). The Fifth District Court of Appeal (“Fifth DCA”) affirmed per curiam on April 7, 2015, and the mandate issued on June 4, 2015. (Id. at 236, 243).

         II. Legal Standard

         Pursuant to 28 U.S.C. § 2244,

(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 of conviction 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 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.

         III. ...


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