United States District Court, M.D. Florida, Tampa Division
S. SCRIVEN UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Petitioner Hopkins's
petition for the writ of habeas corpus under 28 U.S.C. §
2254, the limited response, and Hopkins's reply. (Docs.
1, 9, and 14) Upon consideration of the papers and in
accordance with the Rules Governing Section 2254 Cases in
the United States District Courts, it is
ORDERED that the petition is timely and that
the Respondent must respond to the grounds for relief:
petitions for the writ of habeas corpus under 28 U.S.C.
§ 2254 (Doc. 1) and challenges the validity of his state
convictions for first degree murder, attempted robbery, and
burglary, for which he is imprisoned for life without the
possibility of parole. As directed in an earlier Order (Doc.
6), the Respondent filed a limited response -- restricted to
whether the petition is timely -- and supported the response
with the state court record. (Doc. 9) In reply Hopkins argues
that, based on the record provided by the respondent, the
petition is timely. The linchpin to the petition's
timeliness is Hopkins's having sought review on
certiorari on the direct appeal.
the Anti-Terrorism and Effective Death Penalty Act,
“[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 . . . the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review . . . .” 28 U.S.C. § 2244(d)(1)(A).
Additionally, “[t]he time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation
under this subsection.” 28 U.S.C. § 2244(d)(2).
convictions and sentences were affirmed on direct appeal on
May 15, 2008, rehearing was denied. (Respondent's
Exhibits 5 and 7) Under Supreme Court Rule 13, Hopkins had
ninety days to petition for the writ of certiorari,
and under 28 U.S.C. § 2244(d)(1)(A), Hopkins's
limitation did not begin until the conviction became
“final.” A conviction becomes “final”
on direct appeal upon expiration of the later of (1) when the
ninety days to seek review on certiorari, (2) when
review on certiorari is denied, or (3) when review
on certiorari is complete. See Bond v.
Moore, 309 F.3d 770, 773-74 (11th Cir. 2002);
Kaufmann v. United States, 282 F.3d 1336, 1339 (11th
Cir. 2002). As a consequence, Hopkins's conviction would
become final and the limitation would begin on August 13,
2008 (ninety days after the denial of rehearing), absent the
filing of a petition for the writ of certiorari.
30, 2008 (approximately two weeks before the ninety-day
deadline), Hopkins filed a petition for the writ of
certiorari. (Respondent's Exhibit 9) On August
27, 2008 (approximately two weeks after the deadline), the
Clerk for the Supreme Court returned Hopkins's papers for
failing to contain a proper appendix. (Respondent's
Exhibit 10) On September 12, 2008 (approximately two weeks
after the papers were rejected), Hopkins re-submitted his
petition for the writ of certiorari.
(Respondent's Exhibit 11) The Respondent chose not
“to file a response to the petition” for
certiorari review. (Respondent's Exhibit 12) On
November 3, 2008, the Supreme Court denied review on
certiorari. (Respondent's Exhibit 13)
Respondent argues that the limitation began on August 13,
2008 (ninety days after the denial of rehearing), because the
initial petition for the writ of certiorari was
rejected as not complying with the Court's rules and the
subsequent petition that was accepted by the Supreme Court
was filed after the ninety-day deadline. As a consequence,
the Respondent's calculation of untimeliness omits the
Supreme Court's subsequent certiorari review.
Hopkins argues that the limitation began after the denial of
certiorari. If the Respondent is correct, the
pending petition under Section 2254 is untimely, but if
Hopkins is correct, the pending petition under Section 2254
present dilemma is resolved by Gonzalez v. Thaler,
565 U.S. 134, 151 (2012), which explains that when a
conviction becomes final -- and the limitation begins --
depends on whether there is a review on certiorari.
For petitioners who pursue direct review all the way to this
Court, the judgment becomes final at the “conclusion of
direct review” - when this Court affirms a conviction
on the merits or denies a petition for certiorari.
For all other petitioners, the judgment becomes final at the
“expiration of the time for seeking such review”
- when the time for pursuing direct review in this Court, or
in state court, expires.
attempted certiorari review before expiration of the
ninety days, and he succeeded to obtaining
certiorari review even though review was based on
papers that were filed after the ninety days. Under
Gonzalez, Hopkins's judgment became
“final” when the Supreme Court denied
certiorari review. As a consequence, Hopkins's
petition under Section 2254 is timely, and the Respondent
must address the merits of the grounds for relief or
otherwise respond to the petition.
Hopkins's petition under Section 2254 is timely. Not
later than MONDAY, MARCH 26, 2018, the
Respondent must respond to the petition. Hopkins may reply to
the response within TWENTY-EIGHT (28) DAYS.
The CLERK is directed to
ADMINISTRATIVELY CLOSE this case, which will
be re-opened when briefing is complete.