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Johnson v. Secretary, DOC

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

June 21, 2017

ANTWANN JOHNSON, Petitioner,
v.
SECRETARY, DOC, et al., Respondents.

          ORDER

          BRIAN J. DAVIS United States District Judge

         Petitioner 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.[1] 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.

         Pursuant 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 subsection.

28 U.S.C. § 2244(d).

         Respondents, 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).[2]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).

         The 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.

         Petitioner 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.

         On May 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 ...


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