United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
a Florida inmate, filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 (Dkt. 1). Respondent moves to
dismiss the petition as time-barred (Dkt. 12). The motion to
dismiss is GRANTED.
was convicted of two counts of sexual battery, and one count
of lewd molestation (Respondent's Ex. 4). He was
sentenced to 30 years on the lewd molestation count, and to
life in prison on the sexual battery counts (Respondent's
Ex. 5). The convictions and sentences were affirmed on appeal
on September 12, 2007 (Respondent's Ex. 9). On December
21, 2007, Petitioner filed a Petition for Writ of Habeas
Corpus in the Florida Second District Court of Appeal
(Respondent's Ex. 10). That petition was denied on
January 16, 2008 (Respondent's Ex. 12).
November 5, 2007, Petitioner filed a motion for
post-conviction relief under Florida Rules of Criminal
Procedure, Rule 3.850 (Respondent's Ex. 15). That motion
was denied on March 9, 2011 (Respondent's Ex. 24). The
appellate court reversed and remanded the case to the circuit
court to allow Petitioner an opportunity to amend claim 1 of
the motion (Respondent's Ex. 28); Williams v.
State, 99 So.3d 593 (Fla. 2d DCA 2012). After claim 1
was amended, the circuit court denied the claim on September
23, 2013 (Respondent's Ex. 31). Petitioner did not timely
file a notice of appeal. Rather, he filed a petition for
belated appeal, which was granted on September 4, 2014
(Respondent's Ex. 32). The appellate court affirmed the
denial of the Rule 3.850 motion (Respondent's Ex. 34),
and the appellate court mandate issued on March 11, 2016
(Respondent's Ex. 35). Petitioner filed his federal
habeas petition in this court in March 2017 (Dkt. 1).
moves to dismiss the petition as time-barred under 28 U.S.C.
§2244(d), arguing that more than one year passed after
Petitioner's judgment became final. The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) establishes a one
year statute of limitations in which a state prisoner may
file a federal habeas petition. 28 U.S.C. § 2244(d)(1).
Lawrence v. Florida, 549 U.S. 327, 331 (2007). The
limitations period runs from "the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review-----"
28 U.S.C. § 2244(d)(1)(A). Additionally, "[f]he
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)(2).
convictions were affirmed by the state appellate court on
September 12, 2007. They became final 90 days later, on
December 11, 2007, when the time to file a petition for writ
of certiorari in the United States Supreme Court expired.
Clay v. United States, 537 U.S. 522, 527 (2003);
Bond v. Moore, 309 F.3d 770, 774(11th Cir. 2002).
Petitioner's November 2007 Rule 3.850 motion tolled the
limitations period until October 23, 2013, when the time for
filing an appeal from the denial of the motion expired.
statute of limitations period began to run on October 24,
2013, and ran for 277 days until Petitioner filed a petition
for a belated appeal of the order denying his Rule 3.850
motion on July 28, 2014. See Washington v. Jones, 2017
U.S. Dist. LEXIS 173327, at * 12 (S.D.Fla. October 18, 2017)
(citing Espinosa v. Sec'y, Dep't of Corr.,
804 F.3d 1137 (11th Cir. 2015);
Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir.
2000) (stating that, just as with applications for leave to
file a second motion for state post-conviction review,
applications for leave to file belated appeals toll the
AEDPA's limitations period if they are granted)). The
limitations period remained tolled until the appellate court
mandate issued on March 11, 2016, and elapsed 88 days later
on June 7, 2016. As noted, his § 2254 petition was not
filed until March 2017. Accordingly, it is
petition for writ of habeas corpus (Dkt. 1) is therefore
DISMISSED. The Clerk shall
enter judgment against Petitioner and close this case.
certificate of appealability will issue only if the
Petitioner makes "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
Generally, a petitioner must demonstrate that reasonable
jurists would find this court's assessment of the
constitutional claims debatable or wrong. Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quotation omitted), or
that "the issues presented were 'adequate to deserve
encouragement to proceed further.'" Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
as here, claims have been rejected on procedural grounds, the
petitioner must show that "jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." Id.; Webster v.
Moore, 199 F.3d 1256, 1257 n. 2 (11th Cir. 2000)
(dismissal of habeas petition as time-barred is procedural).
Petitioner cannot make that showing. And since he is not
entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.