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