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Bell v. Secretary, DOC

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

November 6, 2017

WILLIAM H. BELL, JR., [1]Petitioner,
v.
SECRETARY, DOC, et al., Respondents.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE.

         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 December 16, 2015, pursuant to the mailbox rule.[2] 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.

         Respondents, 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).[3] 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).

         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).

         Respondents 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.").

         The 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.

         Although 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 ...


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