United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.
the court is a petition for writ of habeas corpus filed under
28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer,
providing relevant portions of the state court record. (Doc.
23). Petitioner replied. (Doc. 25). The matter is referred to
the undersigned magistrate judge for report and
recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla.
Loc. R. 72.2(B). After careful consideration, the undersigned
concludes that no evidentiary hearing is required for the
disposition of this matter. Rule 8(a) of the Rules Governing
Section 2254 Cases in the United States District Courts. The
undersigned further concludes that the pleadings and
attachments before the court show that petitioner is not
entitled to habeas relief, and that the petition should be
AND PROCEDURAL HISTORY
November 24, 2009, petitioner escaped from an Escambia County
Jail work detail, and an arrest warrant issued. The following
day, November 25, 2009, Escambia County law enforcement
officers spotted petitioner driving a pickup truck and
attempted to initiate a traffic stop. Petitioner fled and led
officers on a highspeed car chase through Escambia County
into Santa Rosa County. The chase ended when petitioner
crashed his vehicle into the Escambia Bay in Santa Rosa
County, attempted to flee by swimming away, and was
apprehended by Santa Rosa County law enforcement. Santa Rosa
deputies took petitioner into custody and booked him into the
Santa Rosa County Jail on charges pending in that county.
After the Santa Rosa County charges were resolved, on June
15, 2011, petitioner was served with the 2009 Escambia County
arrest warrant for escape as well as a new warrant for
fleeing and attempting to elude, and was booked into the
Escambia County Jail. (Doc. 23, Ex. A, pp. 12-18, 61-63
(arrest reports and probable cause
affidavits)). Petitioner was charged in Escambia County
Circuit Court Case Number 11-CF-2785 with escape, and in Case
Number 11-CF-2786 with fleeing or attempting to elude a law
enforcement officer in an agency vehicle with sirens
activated at high speed. (Ex. A, pp. 10, 64 (charging
documents)). Petitioner resolved the charges by entering a
counseled, negotiated plea agreement whereby he pled no
contest to both charges in exchange for the State
recommending a total sentence of 10 years in prison (5 years
on each count to run consecutive to each other and concurrent
with the sentence petitioner was then serving). (Ex. A, pp.
19-29 (transcript of plea hearing), pp. 34-37 (plea
agreement)). The trial court accepted petitioner's plea
and sentenced him consistent with the plea agreement. (Ex. A,
pp. 19-29 (plea and sentencing), pp. 38-46 (judgment)).
Judgment was rendered December 30, 2011. (Id.).
Petitioner did not immediately appeal, but was granted a
belated appeal on March 22, 2013. Farmer v. State,
109 So.3d 341 (Fla. 1st DCA 2013) (copy at Ex. B, p. 20
(directing that: “Upon issuance of mandate, a copy of
this opinion shall be furnished to the clerk of the lower
tribunal for treatment as a notice of appeal.”)). The
mandate issued April 17, 2013. (Ex. A, p. 40).
Petitioner's appellate counsel filed an
Anders brief, explaining that the appeal was
wholly frivolous in that an appeal from a guilty or no
contest plea is not cognizable except under certain
circumstances not present in petitioner's case. (Ex. C,
pp. 1-10). Petitioner filed a pro se motion to
voluntarily dismiss the appeal so he could pursue
postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Ex. C, pp. 11-13). On March 7, 2014, the
Florida First District Court of Appeal (First DCA) dismissed
the appeal. (Ex. C, p. 14).
his belated direct appeal was pending, petitioner filed a
pro se motion to correct sentencing error under Fla.
R. Crim. P. 3.800(b), on December 18, 2013. (Ex. A, pp.
71-83). The state circuit court denied relief on January 27,
2014. (Ex. A, pp. 84-93). Petitioner did not appeal.
April 15, 2014, petitioner filed a pro se motion for
reduction or modification of sentence under Fla. R. Crim. P.
3.800(c). (Ex. D, pp. 1-10). The state circuit court denied
relief on September 15, 2014. (Ex. D, pp. 11-12). Petitioner
did not appeal.
September 22, 2014, petitioner filed a pro se motion
for postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Ex. E, pp. 1-15). The state circuit court
struck the motion as legally insufficient with leave to
amend. (Ex. E, pp. 16-17). Petitioner timely filed an amended
motion (Ex. F, pp. 1-12). The state circuit court denied
relief (id., pp. 19-31), and the First DCA affirmed
per curiam without opinion. Farmer v. State, 182
So.3d 640 (Fla. 1st DCA 2016) (Table) (copy at Ex. I). The
mandate issued February 2, 2016. (Ex. J).
his Rule 3.850 proceeding was pending, petitioner filed a
pro se motion for jail credit under Fla. R. Crim. P.
3.801, on September 30, 2014. (Ex. K, pp. 1-6). The state
circuit court denied relief (id., pp. 7-19), and the
First DCA affirmed per curiam without opinion. Farmer v.
State, 178 So.3d 399 (Fla. 1st DCA 2015) (Table) (copy
at Ex. N). The mandate issued December 18, 2015. (Ex. Q).
filed his federal habeas petition on April 13, 2016, raising
two claims of ineffective assistance of trial counsel. (Doc.
1). Respondent asserts the petition is time-barred (doc. 23,
pp. 6-8), and without merit (id., pp. 4-15).
petitioner filed his § 2254 petition after April 24,
1996, the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), the AEDPA governs this
petition. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997). AEDPA establishes a 1-year
period of limitation for a state prisoner to file a federal
application for a writ of habeas corpus. 28 U.S.C. §
2244(d)(1). The limitations period runs 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.
§ 2244(d)(1). The limitation period is tolled for
“[t]he time during which a properly filed application
for State post-conviction or other collateral review”
is pending. 28 U.S.C. § 2244(d)(2).
has not asserted that a State-created impediment to his
filing a federal habeas petition existed, that he bases his
claim on a right newly recognized by the United States
Supreme Court, or that the facts supporting his claim could
not have been discovered through the exercise of due
diligence before his conviction became final. Accordingly,
the statute of limitations is measured from the remaining
trigger, which is the date on which petitioner's
conviction became final. See 28 U.S.C. §
asserts that because petitioner voluntarily dismissed his
belated direct appeal, the proceeding was a nullity, and his
judgment became final for purposes of § 2244(d)(1)(A),
when his initial time for seeking direct review expired, that
is, 30 days after rendition of the December 30, 2011,
judgment. (Doc. 23, p. 7). According to respondent, this
result “falls within the rule” set out in
Gonzalez v. Thaler, 565 U.S. 134 (2012).
Gonzalez, the question was “when the judgment
becomes ‘final' if a petitioner does not appeal to
a State's highest court.” 565 U.S. at 149. Mr.
Gonzalez, a Texas state prisoner, timely pursued direct
review of his criminal judgment in the state's
intermediate appellate court (the Texas Court of Appeals).
Under Texas law, Gonzalez had a right to discretionary review
in the state's highest court (the Texas Court of Criminal
Appeals), but he did not seek such review. Gonzalez,
565 U.S. at 150. The Supreme Court held that “because
Gonzalez did not appeal to the State's highest court, his
judgment became final when his time for seeking review in the
State's highest court expired.” Id. at
150. The Court rejected Gonzalez's argument that he was
entitled to the 90-day period for seeking certiorari review
in the United States Supreme Court, reasoning that the Court
would have lacked jurisdiction over a certiorari petition
from the Texas intermediate appellate court's decision.
The Court explained: “We can review . . . only
judgments of a ‘state court of last resort' or of a
lower state court if the ‘state court of last
resort' has denied discretionary review.”
Id. at 154 (citing 28 U.S.C. §
1257(a), and Sup. Ct. R. 13.1).
present case, however, is more on point with Jimenez v.
Quarterman, 555 U.S. 113 (2009). In Jimenez, a
Texas state prisoner (Mr. Jimenez) did not initially seek
direct review in the state's highest court, but was later
granted a belated direct appeal. The Supreme Court addressed
the question “whether the date on which direct review
became ‘final' under [§ 2244(d)(1)(A)] is
October 11, 1996, when petitioner's conviction initially
became final, or January 6, 2004, when the out-of-time appeal
granted by the Texas Court of Criminal Appeals became
final.” Jimenez, 555 U.S. at 119. The Court
held that the latter date controlled:
Under the statutory definition [set forth in §
2244(d)(1)(A)] . . ., once the Texas Court of Criminal
Appeals reopened direct review of petitioner's conviction
on September 25, 2002, petitioner's conviction was no
longer final for purposes of § 2244(d)(1)(A). Rather,
the order “granting an out-of-time appeal restore[d]
the pendency of the direct appeal, ” Ex parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997), and
petitioner's conviction was again capable of modification
through direct appeal to the state courts and to this Court
on certiorari review.
. . . The statute requires a federal court, presented with an
individual's first petition for habeas relief, to make
use of the date on which the entirety of the state direct