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Barner v. Secretary, Florida Dept. of Corrections

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

April 2, 2018

JOHN BARNER, Petitioner,
v.
SECRETARY, FLORIDA DEPT. OF CORRECTIONS, Respondent.

          REPORT & 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 2011 conviction in Alachua County for multiple counts of robbery with a firearm and armed burglary of a dwelling. (ECF No. 1.) Respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus on November 9, 2017. (ECF No. 42.) Petitioner filed a response, ECF No. 53, and the motion is otherwise ripe for review.

         I. State-Court Proceedings

         The State charged Petitioner by information filed in May 2011 with three counts of robbery with a firearm and one count of armed burglary of a dwelling. (ECF No. 42-1 at 80-81.) Following a jury trial, the jury found Petitioner guilty as charged on November 9, 2011. (Id. at 133-37.) Petitioner filed a motion for a new trial on February 28, 2008, which was denied. (Id. at 76-80, 89, 116-25.) Petitioner was sentenced on December 16, 2011, to 40 years in prison for Counts 1 and 3 and 15 years in prison for Count IV, with the sentences for Counts 3 and 4 to run concurrent to the sentence in Count 1. (Id. at 151-56.) He was also sentenced to 10 years in prison for Count 2 to run consecutive to the sentences for Counts 1, 3, and 4. (Id.)

         Petitioner then filed a notice of appeal on December 23, 2011, but on July 3, 2012, before filing his initial brief, Petitioner filed a motion to correct an illegal sentence under Rule 3.800(b)(2). (ECF No. 42-7 at 120-24.) The court granted the motion on July 10, 2012. (Id. at 126.) As a result, the sentence was amended so that the sentences in Counts 1, 3, and 4 were to run consecutively to the sentence imposed for Count 2. (Id.)

         Petitioner's counsel then filed an Anders brief in the District Court of Appeal for the First District of Florida (“First DCA”) on August 3, 2012. (Id. at 176-89.) On August 7, 2012, the First DCA informed Petitioner that he had 30 days to file an initial brief. (Id. at 191.) Petitioner did not file a brief, and on November 9, 2012, the First DCA per curiam affirmed without written opinion. (ECF No. 42-8 at 2.) The mandate followed on December 5, 2012. (Id. at 4.)

         Petitioner then filed a Rule 3.800(a) motion to correct illegal sentence on February 21, 2013. (Id. at 9-21.) The Court denied this motion on August 13, 2015. (Id. at 24-25.) Petitioner did not appeal that denial.

         Petitioner then filed a Motion for Due Process Cost of Copies and Transcription in the trial court on November 2, 2015, which the court denied on November 10, 2015. (ECF No. 42-9 at 35-37, 71-74.) Petitioner appealed this decision to the First DCA, filing his brief on February 18, 2016. (Id. at 75-76, 80-88.) The First DCA per curiam affirmed without opinion on June 20, 2016, and the mandate followed on September 16, 2016. (ECF No. 42-10 at 9, 11.) Petitioner then attempted to invoke the discretionary jurisdiction of the Florida Supreme Court, but the Florida Supreme Court dismissed on September 15, 2016, for lack of jurisdiction. (Id. at 13-14, 16.)

         Petitioner also filed a hand-written Rule 3.800(a) motion to correct illegal sentence on September 6, 2016. (ECF No. 42-8 at 53-61.) The court denied this second motion to correct illegal sentence on September 15, 2016, noting that a Rule 3.800(a) motion was not the proper way to raise his claim. (ECF No. 42-9 at 2-4.) The court further found that if they considered his claim under Rule 3.850, it was procedurally barred as untimely. (Id.) Lastly, the court noted that even if it were timely filed, the claim is without merit. (Id.)

         Petitioner also filed a Motion for Due Process Cost of Private Investigator on December 23, 2016, which the court denied on January 3, 2017. (Id. at 45-102; ECF No. 42-12 at 43, 45-46.) He filed a motion for a rehearing, which was denied on January 26, 2017. (ECF No. 42-12 at 63.) Petitioner appealed to the First DCA, which per curiam affirmed without opinion on March 21, 2017. (ECF No. 42-15 at 82.) The Florida Supreme Court then dismissed his case on April 26, 2017. (ECF No. 42-16 at 5.)

         Petitioner then provided his federal habeas petition to prison officials for mailing on March 6, 2017. (ECF No. 1.)

         II. 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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). However, the AEDPA tolls the one-year limitation period for the time during which a properly filed application for State postconviction or other collateral review is pending, and may be equitably tolled in appropriate “extraordinary circumstances.” ...


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