United States District Court, M.D. Florida, Jacksonville Division
JOHN D. COPELAND, Petitioner,
SECRETARY, DOC, et al., Respondents.
J. DAVIS United States District Judge
in their Response to Amended Petition for Writ of Habeas
Corpus (Response) (Doc. 15), contend that Petitioner has
failed to comply with the one-year limitation period.
Respondents provide exhibits in support of this contention.
(Doc. 15).Petitioner was given admonitions and a time
frame to respond to the request to dismiss the Amended
Petition contained within the Response. See
Court's Order (Doc. 6). Petitioner filed a Reply to
State's Response to Amended Petition for Writ of Habeas
Corpus (Reply) (Doc. 18).
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).
review, Sandra E. Copeland, a person claiming to be
Petitioner's biological mother, 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 June 24, 2015. The Petition did not include the
original signature of Petitioner in accordance with Rule 11,
Fed. R. Civ. P., and Local Rule 1.05(d). As such, the Court
ordered Petitioner to file a signed Amended Petition in
compliance with Rule 11 as he is not represented by counsel.
Order (Doc. 3). Petitioner filed a signed Amended Petition
(Doc. 4) on July 20, 2015, pursuant to the mailbox
rule.In the Amended Petition, Petitioner
challenges his 2009 Duval County conviction for three counts
of armed robbery (counts 1, 3, and 4), one count of armed
burglary (count 5), and one count of burglary of a dwelling
provide a procedural history in the Response. The Court will
provide a brief procedural history in order to address the
request to dismiss. Petitioner entered and the trial court
accepted a plea of guilty. Ex. 3; Ex. 4. On May 6, 2009,
judgment and sentence were entered. Ex. 5. Thereafter, the
First District Court of Appeal (1st DCA) granted a belated
appeal. Ex. 6E. On direct appeal, counsel filed an Anders
brief. Ex. 7. The 1st DCA affirmed per curiam on September
28, 2011. Ex. 9. The mandate issued on October 25, 2011.
Id. The conviction became final on Tuesday, December
27, 2011 (90 days after September 28, 2011) ("According
to rules of the Supreme Court, a petition for certiorari must
be filed within 90 days of the appellate court's entry of
judgment on the appeal or, if a motion for rehearing is
timely filed, within 90 days of the appellate court's
denial of that motion.").
limitation period began to run on December 28, 2011, and ran
for 35 days, until Petitioner filed a Rule 3.850 motion in
the circuit court on February 1, 2012. Ex. 10. The circuit
court denied the Rule 3.850 motion in two orders, one filed
on April 10, 2013 and one entered on August 7, 2013. Ex. 13;
Ex. 15. The one-year limitation period was tolled until April
28, 2014, when the mandate issued. Ex. 20. The limitation
period began to run on April 29, 2014, and the one-year
period expired 330 days later, on Wednesday, March 25, 2015.
Petitioner filed a document entitled "Application for
Writ of Habeas Corpus" (Application) pursuant to Rule
3.850(m), this second Rule 3.850 motion filed on July 28,
2014, Ex. 21, did not serve to toll ...