United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
initiated this case by filing a Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The
Petition stems from Petitioner's 2012 jury-trial
conviction of failing to report as a sex offender, for which
he was sentenced to five years' imprisonment. Respondent
filed a motion to dismiss the Petition as time-barred, ECF
No. 10, and Petitioner filed a reply, ECF No. 13. For the
following reasons, the undersigned recommends that the motion
to dismiss be granted and the Petition be dismissed as
whose convictions became final after the effective date of
the AEDPA have a one-year period within which to seek federal
habeas corpus review of their convictions. The one-year
limitations period begins to run, inter alia, 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[.]” The one-year limitations period
is statutorily tolled during the pendency of a properly-filed
state application for post conviction relief, and may be
equitably tolled in appropriate “extraordinary
circumstances.” 28 U.S.C. § 2244(d)(2); Steed
v. Head, 219 F.3d 1298, 1300 (11th Cir.
procedural background of this case is summarized in the
Respondent's motion, and Petitioner does not dispute the
accuracy of the summary. See ECF Nos. 10, 13.
Petitioner was sentenced on December 7, 2012. His conviction
was affirmed per curiam on January 17, 2014.
Short v. State, 129 So.3d 365 (Fla. 1st
DCA 2014) (table); ECF No. 10-4 at 248. His conviction became
final 90 days later, on April 17, 2014, when the time to seek
certiorari in the U.S. Supreme Court expired.
filed, through counsel, a Fla. R. Crim. P. 3.800(c) motion to
modify sentence on June 12, 2014. ECF No. 10-4 at 295. The
motion was dismissed as untimely and for lack of jurisdiction
on June 27, 2014. ECF No. 10-4 at 300-01.
filed a pro se Fla. R. Crim. P. 3.850 motion that
was docketed in the state court on January 29, 2015. The
motion was unsigned and undated, and neither the motion nor
the accompanying brief were sworn under oath as required by
Fla. R. Crim. P. 3.850(c). On February 13, 2015, the state
court struck the motion for lack of signature. ECF No. 10-4
at 302 to ECF No. 10-5 at 13; ECF No. 10-5 at 15.
April 28, 2015, Petitioner filed a pro se habeas
corpus petition in the First DCA alleging ineffective
assistance of appellate counsel on direct appeal. The First
DCA denied the petition on the merits on August 6, 2015. ECF
No. 10-4 at 251-59; 280.
filed another Rule 3.850 motion on May 27, 2015, and an
amended motion on July 9, 2015. On October 6, 2015, the state
court struck the amended motion as facially insufficient,
with leave to amend within 60 days pursuant to Fla. R. Crim.
P. 3. 850(f)(2). Petitioner filed a second amended petition
on January 5, 2016, pursuant to an extended deadline. The
state court summarily denied the motion on March 9, 2016. The
First DCA affirmed per curiam without written
opinion on November 22, 2016. ECF No. 10-5 at 26-184; ECF No.
10-6 at 118.
filed the instant federal habeas corpus petition on January
3, 2017. ECF No. 1. Petitioner asserts five claims of
ineffective assistance of counsel. Petitioner contends that
the Petition is timely because his conviction became final on
April 27, 2014, and he had tolling proceedings pending in
state court beginning with his January 29, 2015, Rule 3.850
motion until such proceedings concluded on November 22, 2016,
when the First DCA affirmed the denial of his most recent
Rule 3.850 proceeding. ECF No. 1 at 9.
correctly asserts that Petitioner's conviction became
final, and the one-year limitations period began to run, on
April 17, 2014, 90 days after his conviction was affirmed on
January 17, 2014, when the time for seeking certiorari in the
U.S. Supreme Court expired. Nix v. Sec'y for the
Dep't of Corr., 393 F.3d 1235, 1237 (11th Cir.
2004). Thus, absent tolling, Petitioner had until on or about
April 20, 2015, to file a timely federal habeas corpus
filed, through counsel, a Rule 3.800(c) motion on June 12,
2014. ECF No. 10-4 at 295, 300-01. Although a Rule 3.800(c)
motion is a tolling application, see Rogers v. Sec'y,
Dept. of Corr., 855 F.3d 1274 (11thCir.
2017), in this case the motion was dismissed as untimely and
for lack of jurisdiction, and therefore it was not
“properly filed” for purposes of tolling the
federal limitations period. See 28 ...