United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
R. JONES United States Magistrate Judge.
initiated this case by fling a Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, challenging his
2010 Escambia County conviction. (ECF No. 1.) Respondent
filed the instant Motion to Dismiss on October 30, 2017. (ECF
No. 23.) Petitioner has filed a response, (ECF No. 26), and
the motion to dismiss is therefore ripe for review. For the
following reasons, the undersigned recommends that the motion
to dismiss be granted and the Petition be dismissed.
was convicted on May 6, 2010, for three counts of aggravated
assault with a firearm, two counts of shooting into a
building, and one misdemeanor count of criminal mischief.
(ECF No. 23-1 at 101-03.) Petitioner was sentenced on June
21, 2010, to a mandatory minimum of twenty years'
imprisonment for the aggravated assaults (to run concurrently
with each other), 180 months' imprisonment on one count
of shooting into a building (to run concurrent with the
twenty years' imprisonment), 180 months' probation on
the other count of shooting into a building (to run
consecutive to the period of incarceration), and 60 days'
time served for the criminal mischief. (Id. at 198,
filed a direct appeal in the First District Court of Appeal
(“First DCA”). (ECF No. 23-2 at 23-26; ECF No.
23-8 at 2-26.) The First DCA per curiam affirmed without
written opinion on December 9, 2011, and the mandate followed
on December 28, 2011. (ECF No. 23-10 at 2-4.)
December 18, 2012,  Petitioner filed a pro se
petition for writ of habeas corpus in the First DCA alleging
ineffective assistance of appellate counsel. (ECF No. 23-11
at 2-50.) The First DCA per curiam denied the petition on the
merits on January 17, 2013. (ECF No. 23-12 at 2.) Petitioner
then filed a motion for rehearing on January 30, 2013.
(Id. at 3-6.) The First DCA denied the motion for
rehearing on March 14, 2013. (Id. at 7.)
next filed a motion for postconviction relief in the trial
court on May 30, 2013. (ECF No. 23-13 at 70-116.) On July 16,
2013, however, the trial court struck the motion for
postconviction relief as facially insufficient, but granted
Petitioner leave to file an amended motion for postconviction
relief within sixty days. (Id. at 117-19.)
Petitioner thereafter filed his amended motion for
postconviction relief on September 12, 2013. (ECF No. 23-13
at 122-71.) The trial court denied the amended motion for
postconviction relief on all grounds on November 7, 2014.
(Id. at 315-44.) Following an extension of time,
Petitioner filed a motion for rehearing on November 20, 2014.
(Id. at 677-694.) The trial court denied the motion
for rehearing on December 31, 2014. (Id. at 728.)
appealed the denial of his amended motion for postconviction
relief to the First DCA on January 28, 2015. (Id. at
719-20; ECF No. 23-16 at 2-60.) The First DCA per curiam
affirmed on August 29, 2016. (ECF No. 23-20 at 2.) Petitioner
then filed a motion for rehearing on September 12, 2016,
which the First DCA denied on October 28, 2016. (Id.
at 3-5.) The mandate followed on November 15, 2016.
(Id. at 7.)
then filed the instant Petition in this Court on November 23,
2016. (ECF No. 1.)
filed after April 24, 1996, are governed by 28 U.S.C. §
2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Penry v.
Johnson, 532 U.S. 782, 792 (2001). The AEDPA created a
limitations period for petitions for writ of habeas corpus
brought pursuant to § 2254:
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