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Short v. Secretary, Dept. of Corrections

United States District Court, N.D. Florida, Pensacola Division

February 1, 2018

STEPHEN SHI SHORT, Petitioner,
v.
SECRETARY, DEPT. OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         Petitioner 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 time-barred.

         One-Year Limitation Period

         Petitioners 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. 2000).

         State-Court Proceedings

         The 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.

         Petitioner 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.

         Petitioner 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.

         On 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.

         Petitioner 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.

         Petitioner 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.

         Discussion

         Respondent 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 petition.[1]

         Petitioner 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 ...


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