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Copeland v. DOC

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

November 3, 2017

JOHN D. COPELAND, Petitioner,
v.
SECRETARY, DOC, et al., Respondents.

          ORDER

          BRIAN J. DAVIS United States District Judge

         Respondents, 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).[1]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).

         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).

         Upon 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.[2]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 (count 6).

         Respondents 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.").

         The 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.

         Although 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 ...


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