United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
applies under 28 U.S.C. § 2254 for the writ of habeas
corpus (Doc. 1) and challenges the validity of his state
convictions for robbery, fleeing or eluding an officer,
resisting an officer with violence, and possession of
cocaine, for which convictions he is imprisoned for life as a
habitual felony offender and prison releasee re-offender.
Marr supports his application with exhibits
(“Petitioner's Exhibit ”) primarily from the
post-conviction proceedings. (Doc. 1) Numerous exhibits
(“Respondent's Exhibit ”) support the
response. (Doc. 10) The respondent correctly argues that the
application is time-barred.
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, under 28 U.S.C. § 2244(d)(2), “[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
conviction was final on August 4, 2009,  and the
limitation expired one year later, absent tolling for a state
post-conviction proceeding. Marr let 226 days elapse before
filing a state Rule 3.800 motion to correct illegal sentence
on March 18, 2010. (Respondent's Exhibit 6) Tolling
continued until February 11, 2011, when the mandate
issued. (Respondent's Exhibit 15) Marr had 139
days remaining (365 - 226 = 139). The deadline for applying
under Section 2254 was June 30, 2011 (February 11, 2011 139
days = June 30, 2011).
April 4, 2011, Marr filed a motion under Rule 3.850 for
post-conviction relief. The motion was stricken with leave to
amend because the motion exceeded the fifty-page limit by
twenty pages. Marr's amended motion, which was fifty-two
pages, was stricken for the same reason because Marr
supplemented the amended motion with an additional eighteen
pages. Marr's second amended motion, which was also
supplemented, totaled eighty-two pages. As a consequence, the
motion was denied with prejudice for failing to comply with
the rules governing the length of a motion under Rule 3.850.
Section 2244(d)(2) an applicant must “properly
file” a state motion for post-conviction relief to
qualify for tolling. Artuz v. Bennett, 531 U.S. 4,
8-9 (2000) (italics original) (citations omitted), explains
the meaning of “properly filed:”
application is “filed, ” as that term is commonly
understood, when it is delivered to, and accepted by, the
appropriate court officer for placement into the official
record. And an application is “properly filed”
when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings. These usually
prescribe, for example, the form of the document, the time
limits upon its delivery, the court and office in which it
must be lodged, and the requisite filing fee.
for example, an application is erroneously accepted by the
clerk of a court lacking jurisdiction, or is erroneously
accepted without the requisite filing fee, it will be
pending, but not properly filed.
the state court rejected his motions for violating the
court's rules, Marr's motions under Rule 3.850 for
post-conviction relief were not “properly filed”
and failed to toll the limitation. As a consequence,
Marr's limitation deadline remained June 30, 2011. Marr
applied under Section 2254 on January 16, 2015, more than
three years late.
Marr's application is untimely even if afforded tolling
for the Rule 3.850 motions. As determined above, Marr let 226
days elapse before he filed his initial Rule 3.800 motion to
correct illegal sentence on March 18, 2010, and he had 139
days of the limitation remaining. Marr let an additional 52
days elapse after that proceeding concluded before he filed
his initial “improperly filed” Rule 3.850 motion
on April 4, 2011. This left Marr with 87 days of the
limitation remaining (365 days - 226 - 52 = 87 days). On June
5, 2014, the mandate issued on the appeal from the denial of
the Rule 3.850 motions, but while that appeal was pending
Marr had filed a second motion under Rule 3.800 to correct an
illegal sentence, which would toll the limitation and which
concluded with the issuance of a mandate on October 17, 2014.
(Petitioner's Exhibit E-5) The deadline for applying
under Section 2254 was January 12, 2015 (October 17, 2011
87 days = January 12, 2015). Marr applied under Section 2254
on January 16, 2015, untimely even if afforded tolling for
the “improperly filed” Rule 3.850 motions.
the application for the writ of habeas corpus (Doc. 1) is
DISMISSED AS TIME-BARRED. The clerk must enter a judgment
against Marr and CLOSE this case.
OF BOTH A CERTIFICATE OF APPEALABILITY AND LEAVE TO
APPEAL IN FORMA PAUPERIS
not entitled to a certificate of appealability
(“COA”). A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district
court's denial of his application. 28 U.S.C. §
2253(c)(1). Rather, a district court must first issue a COA.
Section 2253(c)(2) permits issuing a COA “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” To merit a COA, Marr must show
that reasonable jurists would find debatable both (1) the
merits of the underlying claims and (2) the procedural issues
he seeks to raise. See 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 478 (2000);
Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001).
Because the application is clearly time-barred, Marr cannot
meet Slack's prejudice requirement. 529 U.S. at
484. Finally, because Marr is not entitled to a COA, he is
not entitled to appeal in forma pauperis.
a certificate of appealability is DENIED. Leave to appeal
in forma pauperis is DENIED. Marr must pay the full
$505 appellate filing fee unless the ...