United States District Court, M.D. Florida, Jacksonville Division
EDWARD L. COLLINS, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS AND ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents.
J. DAVIS United States District Judge
initiated this action by filing a pro se Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (Petition) (Doc. 1) on June 19,
2015. He challenges his 2009 state court (Duval
County, Florida) convictions for aggravated battery,
possession of a firearm by a convicted felon, and possession
of cocaine. Respondent Secretary of the Florida Department of
Corrections filed a motion to dismiss the Petition as
untimely. See Respondent's Motion to Dismiss
Petition for Writ of Habeas Corpus as Untimely (Response)
(Doc. 13) with exhibits (Resp. Ex.). Petitioner filed a reply.
See Petitioner's “Adverse Reply”
Motion to Respondents Motion to Dismiss Petition for Writ
Habeas Corpus as Untimely (Reply) (Doc. 15). This case is
ripe for review.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year statute of limitations on petitions for
writ of habeas corpus. Specifically, 28 U.S.C. § 2244
(d)(1) 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.
(2) The 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
28 U.S.C. § 2244(d).
December 9, 2009, a jury found Petitioner guilty of
aggravated battery (count one), possession of a firearm by a
convicted felon (count two), and possession of cocaine (count
three). Resp. Ex. A at 119-121. On December 17, 2009, the
state court sentenced Petitioner to a twenty-year term of
incarceration with a twenty-year minimum mandatory term of
incarceration for count one, a fifteen-year term of
incarceration for count two to run concurrent with count one,
and a five-year term of incarceration for count three to run
consecutive to count one. Id. at 175-81. The First
District Court of Appeal (First DCA) per curiam affirmed
Petitioner's convictions and sentences without opinion on
January 13, 2011, Resp. Ex. I, and issued its mandate on
January 31, 2011. Resp. Ex. J. Petitioner's convictions
became final on Wednesday, April 13, 2011, ninety days from
January 13, 2011. See Clay v. United States, 537
U.S. 522, 527 (2003) (“Finality attaches when [the
Supreme Court of the United States] affirms a conviction on
the merits on direct review or denies a petition for writ of
certiorari, or when the time for filing a certiorari petition
expires.”); Supreme Court Rule 13 (“a petition
for a writ of certiorari to review a judgment . . . is timely
when it is filed with the Clerk of this Court within 90 days
after entry of the judgment”). Therefore, absent statutory
or equitable tolling, the one-year statute of limitations
would begin to run on Thursday, April 14, 2011.
his convictions became final, however, Petitioner filed a
motion for post-conviction relief pursuant to Rule 3.850 of
the Florida Rules of Criminal Procedure with the state court
on March 18, 2011. Resp. Ex. K at 1-67. Then on November 22,
2011, Petitioner filed a supplemental motion for
post-conviction relief (the Court will refer to the motion
for post-conviction relief and the supplemental motion for
post-conviction relief collectively as the First 3.850
Motion). Id. at 68-76. On May 10, 2012, the state
court denied the First 3.850 Motion. Id. at 77-114.
The First DCA per curiam affirmed without opinion the denial
of the First 3.850 Motion on February 1, 2013. Resp. Ex. N.
Petitioner sought a rehearing, Resp. Ex. O, which was denied
on April 3, 2013, Resp. Ex. P. The First DCA issued its
mandate on April 19, 2013. Resp. Ex. Q.
is no dispute that the First 3.850 Motion was properly filed.
“The one-year limitation[s] period for filing a §
2254 petition is tolled during times in which a
‘properly filed' application for state
post-conviction relief is ‘pending.'”
Green v. Sec'y, Dep't of Corr., 877 F.3d
1244, 1247 (11th Cir. 2017) (quoting 28. U.S.C. §
2244(d)(2)). “In Florida, a state post-conviction
motion is pending until the appropriate appellate court
issues the mandate for its order affirming a state trial
court's denial of the motion.” Woulard v.
Sec'y, Dep't of Corr., 707 Fed.Appx. 631, 633
(11th Cir. 2017). Therefore, the properly filed First 3.850
Motion tolled the commencement of the one-year limitations
period until April 19, 2013.
the First DCA issued its mandate on the First 3.850 Motion,
Petitioner filed a second motion for post-conviction relief
pursuant to Rule 3.850 (Second 3.850 Motion) with the state
court on March 14, 2013. Resp. Ex. R at 1-27. The state court
dismissed the Second 3.850 Motion as procedurally barred and
untimely on August 28, 2013. Id. at 28-39. The First
DCA per curiam affirmed without opinion the dismissal of the
Second 3.850 Motion on January 23, 2014, Resp. Ex. V, and
issued its mandate on February 18, 2014. Resp. Ex. W. Because
the Second 3.850 Motion was dismissed as untimely under state
law,  it was not “properly filed, ”
and thus, did not toll the statute of limitations.
SeePace v. DiGuglielmo, 544 U.S. 408, 414
(2005) (“When a postconviction petition is untimely
under state law, ‘that [is] the end of the matter'
for purposes of § 2244(d)(2).” (quoting Carey
v. Saffold, 536 U.S. 214, 226 (2002)); Sykosky v.
Crosby, 187 Fed.Appx. 953, 958 (11th Cir. 2006)
(“. . . the state courts determined that [the
petitioner's] motion was filed after a time limit and did
not fit within any exceptions to that limit. We therefore
defer to the determination of the state courts, and that ...