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Lee v. Jones

United States District Court, N.D. Florida, Panama City Division

April 30, 2018

SYLVESTER O'NEIL LEE, Petitioner,
v.
JULIE L. JONES, Respondent.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This cause is before the court on Petitioner's petition for writ of habeas corpus and incorporated memorandum of law, filed under 28 U.S.C. § 2254 (ECF No. 1). Respondent filed a motion to dismiss the petition as untimely, with portions of the state court record (ECF No. 21). Petitioner responded in opposition to the motion (ECF No. 23).

         The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Respondent's motion to dismiss should be granted.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Petitioner was convicted in the Circuit Court in and for Bay County, Florida, No. 1984-CF-109, of kidnapping, sexual battery with a deadly weapon, robbery with a firearm, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. See Lee v. State, 508 So.2d 1300 (Fla. 1st DCA 1987). On direct appeal to the Florida First District Court of Appeal (“First DCA”), No. BL-351, the court overturned the convictions, due to the erroneous admission of collateral crime evidence, and remanded the case for a new trial. See Id. The First DCA certified a question of great public importance to the Florida Supreme Court. See Id. The Florida Supreme Court held, in No. SC60-70882, that the First DCA correctly reversed Petitioner's convictions and remanded for a new trial. See State v. Lee, 531 So.2d 133 (Fla. 1988).

         On re-trial, Petitioner was convicted of kidnapping, sexual battery with a deadly weapon, robbery with a firearm, and possession of a firearm by a convicted felon. See Lee v. State, 566 So.2d 264 (Fla. 1st DCA 1990). On direct appeal, No. 89-136, the First DCA again overturned the convictions, due to the erroneous admission of collateral crime evidence, and remanded the case for a new trial. See Id. The State sought review in the Florida Supreme Court, No. SC60-76813, but the court denied review. See State v. Lee, 576 So.2d 291 (1990) (Table).

         Following Petitioner's third trial, he was convicted of kidnapping with a firearm, robbery with a firearm, and sexual battery with a firearm.[1] See Lee v. State, 606 So.2d 1222, 1223 (Fla. 1st DCA 1992). Petitioner was found to be a habitual felony offender. Id. Petitioner elected to be sentenced under the sentencing guidelines, which recommended a life sentence. Id. Petitioner was sentenced to three consecutive life sentences. Id. Petitioner appealed to the First DCA, No. 91-1762. On October 12, 1992, the First DCA affirmed the convictions and sentences, except for the habitual offender classification for the sexual battery offense. Id. at 1226. The First DCA denied Petitioner's motion for rehearing on November 16, 1992. See Id. Petitioner sought review in the Florida Supreme Court, No. SC60-80622, but the court denied review on March 15, 1993. See State v. Lee, 617 So.2d 320 (1993) (Table).

         On or about March 16, 1995, Petitioner filed a motion for post-conviction relief in the state circuit court (see Ex. A; Ex. D1 at 75). On April 15, 1996, the circuit court issued a final order denying the motion (see id.). The court denied Petitioner's motion for rehearing on April 14, 1997 (see id.). Petitioner appealed to the First DCA, No. 97-1886. On February 24, 1998, the First DCA affirmed per curiam without written opinion. See Lee v. State, 717 So.2d 1004 (Fla. 1st DCA 1998) (Table). The mandate issued March 26, 1998.

         On November 17, 2011, Petitioner filed another motion for post-conviction relief in the state circuit court (Ex. C1 at 1-75). The court struck the motion as facially insufficient on January 20, 2012, with leave to file a facially sufficient motion within thirty (30) days (id. at 76). Petitioner filed an amended motion on February 14, 2012 (id. at 77-138). On August 17, 2012, the circuit court dismissed the motion as untimely under Rule 3.850(b) (i.e., it was filed beyond two years from the date Petitioner's judgment and sentence became final) (Ex. C2. at 254-55). Petitioner appealed the decision to the First DCA, No. 1D12-5716 (Ex. C2 at 296-97; Ex. C3). The First DCA affirmed the lower court's decision per curiam without written opinion on January 28, 2013 (Ex. C5). See Lee v. State, 106 So.3d 932 (Fla. 1st DCA 2013) (Table). The mandate issued on February 25, 2013 (Ex. C6).

         On July 10, 2012, while Petitioner's Rule 3.850 motion was pending in the circuit court, Petitioner filed a petition for writ of mandamus in the First DCA, No. 1D12-3646, requesting the court to compel the circuit court to rule on his motion (Ex. E1). On February 10, 2014, the First DCA dismissed the petition for writ of mandamus as moot (Ex. E4).

         On July 30, 2013, Petitioner filed a third post-conviction motion (titled as a petition for writ of habeas corpus) in the state circuit court (Ex. D1 at 1-73). The state court dismissed the petition on November 21, 2013, finding that it was more appropriately considered as a motion for post-conviction relief under Rule 3.850, and as such, was untimely filed (id. at 74-76). The court also determined that the claims presented in the motion were procedurally barred (id.). The court additionally cautioned Petitioner against filing additional successive post-conviction motions in the future (id.). Petitioner appealed the decision to the First DCA, No. 1D14-16 (Ex. D1 at 168-70, Ex. D2, Ex. D3, Ex. D4). The First DCA affirmed per curiam without written opinion on June 12, 2014 (Ex. D5). See Lee v. State, 143 So.3d 926 (Fla. 1st DCA 2014) (Table). The mandate issued on August 15, 2014 (Ex. D8).

         Petitioner filed the instant § 2254 petition on May 12, 2017 (ECF No. 1). He asserts the following claims:

Ground One: “Florida's 180 day speedy trial period starts when a defendant is arrested on felony charges and placed in custody. If the prosecutor all [sic] the 180 day speedy trial period to expire before defendant is brought to trial, the defendant is entitle [sic] to an automatic discharge.”
Ground Two: “The jurisdictional issue is synonymous the the [sic] facts in Ground One, due to the prosecutor's violation of the 180 day speedy trial period by not bringing Petitioner to trial within the established 180 day speedy trial period from his arrest on felony charges and placed in custody on 1/26/84. The 180 day speedy trial period expired on those charges ...

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