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Slocum v. Secretary, Doc

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

October 30, 2017

SECRETARY, DOC, et al., Respondents.



         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) on September 22, 2015, pursuant to the mailbox rule.[1] He challenges his 2011 Union County conviction for robbery and burglary with battery. Id. at 1.

         Respondents, in their Motion to Dismiss (Response) (Doc. 16), contend that Petitioner has failed to comply with the one-year limitation period set forth in 28 U.S.C. § 2244(d). They provide exhibits in support of their contention. (Doc. 17).[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. 10). Petitioner filed a Reply to Respondents' Motion to Dismiss (Reply) (Doc. 18) . Petitioner counters the Respondents' contention of untimeliness by asserting that Respondents' failed to take into consideration the law governing the finality of a state court judgment and the related calculation of timeliness. Id. 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).

         The Court will provide the relevant procedural history. On September 25, 2006, a jury returned a verdict finding Petitioner guilty of robbery and burglary of a conveyance with battery. Ex. H at 34. Judgment and sentence were entered on September 25, 2006. Ex. B at 3. Petitioner filed a Rule 3.850 motion for post conviction relief July 9, 2010. Ex. H at 1-23. In an order filed July 27, 2011, the circuit court granted in part and denied in part the Rule 3.850 motion, finding Petitioner entitled to be resentenced by the original sentencing judge. Id. at 24-31. On October 19, 2011, the original sentencing judge resentenced Petitioner to fifteen years with a minimum mandatory term of fifteen years on the first count, to be followed by fifteen years on the second count. Id. at 97-101; 128-39. On November 7, 2011, Petitioner, through counsel, filed a notice of appeal, appealing the Amended order of judgment and sentence rendered October 19, 2011. Id. at 106. Time to appeal the partial denial of the Rule 3.850 motion expired on August 26, 2011, thirty days after the court's decision. See Ex. K; Ex. M at 4. Petitioner untimely filed his pro se notice of appeal of the order denying his Rule 3.850 motion on November 9, 2011, pursuant to the mailbox rule. Id. at 112-13.

         The brief on post conviction appeal filed by counsel raised one issue: the trial court erred in summarily denying a claim that trial counsel was ineffective in failing to pursue a suppression issue. Ex. I. On July 24, 2012, the First District Court of Appeal (1st DCA) dismissed the appeal as untimely from the order finally deciding Petitioner's claims for collateral relief, explaining that "[b]ecause no notice of appeal was filed within thirty days of the order disposing of the appellant's postconviction claims, and no issue has been raised regarding the resentencing, we are without jurisdiction to hear this appeal." Ex. M at 4. Although Petitioner moved for rehearing, rehearing was denied and the mandate issued on September 21, 2012. Ex. N; Ex. 0; Ex. P.

         On November 7, 2012, Petitioner sought a belated appeal, Ex. Q, but the 1st DCA denied it on January 29, 2013. Ex. S. On May 13, 2013, Petitioner filed a petition for writ of mandamus in the Supreme Court of Florida, Ex. T, and it was denied without prejudice to petitioner seeking a belated discretionary review. Ex. U. On May 11, 2014, Petitioner filed a petition for belated discretionary review. Ex. V. The Supreme Court of Florida, on October 1, 2014, construed it to be a notice to invoke discretionary jurisdiction and created a new case. Ex. W. Briefs ...

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