United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS United States District Judge
initiated this action by filing a Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody (Petition) (Doc. 1) and a Memorandum of Law (Doc. 4)
on October 29, 2014. He challenges his 2009 Duval County
conviction for escape, battery on a law enforcement officer,
and battery against a law enforcement animal. Petition at 1.
to the Antiterrorism and Effective Death Penalty Act (AEDPA),
there is a one-year period of limitation:
(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
28 U.S.C. § 2244(d).
in their Motion to Dismiss Petition for Writ of Habeas Corpus
as Untimely (Response) (Doc. 13), contend that Petitioner has
failed to comply with the limitation period. They provided
exhibits in support of their contention. (Doc.
13).Petitioner was given admonitions and a time
frame to respond to the request to dismiss the Petition
contained within the Response. See Court's Order
(Doc. 8). Petitioner filed a Reply to Respondents' Motion
to Dismiss Petition for Writ of Habeas Corpus as Untimely
(Reply) (Doc. 15).
Court will first address Respondents' claim of
untimeliness. Petitioner was charged by information with
escape, battery on a law enforcement officer, and battery
against a law enforcement animal. Ex. C at 13-14. On the day
of trial, he entered a plea of guilty. Id. at 32-3.
On September 29, 2009, the court adjudicated Petitioner
guilty as to all counts, entered judgment, and sentenced
Petitioner as an habitual felony offender to concurrent
ten-year terms on counts one and two, and a one-year prison
term on count three. Id. at 34-41.
appealed, id. at 70, 90, Ex. D, Ex. E, and on April
12, 2011, the First District Court of Appeal (1st DCA)
affirmed per curiam the conviction and sentence. Ex. F. The
mandate issued on June 10, 2011. Ex. I.
18, 2011, Petitioner moved to correct his sentence pursuant
to Rule 3.800(a), Florida Rules of Criminal Procedure. Ex. K
at 1-9. The circuit court denied the motion. Id. at
10-23. Petitioner appealed. Id. at 30; Ex. L; Ex. M.
The 1st DCA affirmed per ...