United States District Court, M.D. Florida, Jacksonville Division
WILLIAM H. BELL, JR., Petitioner,
SECRETARY, DOC, et al., Respondents.
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 December 16, 2015, pursuant to
the mailbox rule. He also filed an Attachment (Doc. 4). He
challenges his 2011 Duval County conviction for two counts of
aggravated assault, one count of aggravated stalking, and one
count of possession of a firearm by a convicted felon.
in their Motion to Dismiss (Response) (Doc. 23), contend that
Petitioner has failed to comply with the one-year limitation
period. They provide exhibits in support of their contention.
(Doc. 23). 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. 7). Petitioner filed a reply (Reply) (Doc. 24).
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).
provide a detailed procedural history in the Response.
Response at 1-3. The Court will provide a brief procedural
history. A jury found Petitioner guilty as charged. Ex. A at
61-64. On January 11, 2014, judgment and sentence were
entered. Id. at 83-91. Petitioner appealed. Ex. D;
Ex. E; Ex. F. The First District Court of Appeal (1st DCA)
affirmed per curiam on September 14, 2011. Ex. G. Petitioner
moved for rehearing, Ex. H, and the 1st DCA denied rehearing
on October 31, 2011. Ex. I. The mandate issued on November
16, 2011. Ex. J. The conviction became final on January 29,
2012 (90 days after October 31, 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 January 30, 2012, and ran
for 214 days, until Petitioner filed a Rule 3.800(a) motion
in the circuit court on August 31, 2012, pursuant to the
mailbox rule. Ex. K at 1-22. The circuit court denied the
motion in an order filed March 21, 2014. Id. at
23-37. Petitioner appealed, id. at 38-41. On July 8,
2014, the 1st DCA affirmed per curiam. Ex. P. The mandate
issued on August 29, 2014. Id. As such, the one-year
limitation period remain tolled until the mandate issued. The
limitation period began to run on August 30, 2014, and the
one-year period expired 151 days later, on Wednesday, January
28, 2015. Therefore, the Petition, filed pursuant to the
mailbox rule on December 16, 2015, is untimely filed.
Petitioner filed a Rule 3.850 motion on November 14, 2014,
Ex. Q at 1-66, the circuit court dismissed the Rule 3.850
motion with prejudice as untimely filed. Id. at
67-80. Thus, this motion for post conviction relief did not
toll the running of the limitation period. See Pace v.
DiGuglielmo, 544 U.S. 408, 413 (2005) (a ...