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Piehl v. Secretary

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

February 12, 2018

ROBERT PIEHL, Petitioner,
v.
SECRETARY, DEP'T OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES United States Magistrate Judge.

         Petitioner 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.

         State-Court Proceedings

         Petitioner 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, 205.)

         Petitioner 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.)

         On December 18, 2012, [1] 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.)

         Petitioner 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.)

         Petitioner 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.)

         Petitioner then filed the instant Petition in this Court on November 23, 2016. (ECF No. 1.)

         One-Year Limitation Period

         Petitions 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 ...

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