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Summers v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

May 8, 2018

EDWARD SUMMERS, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE.

         I. Status

         Petitioner initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) on September 24, 2015.[1] He challenges a 2010 state court (Duval County, Florida) judgment of conviction for lewd or lascivious molestation. He is serving a total term of imprisonment of 25 years. Respondents contend that the Petition was untimely filed, and therefore, this case must be dismissed. See Motion to Dismiss (Doc. 9).[2]Petitioner filed a Reply (Doc. 11). The case is ripe for review.[3]

         II. One-Year Limitations Period

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection:

(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 subsection.

28 U.S.C. § 2244(d).

         III. Analysis

         After Petitioner pled guilty, the circuit court entered judgment against him on April 29, 2010. Ex. D. Petitioner did not file a direct appeal; therefore, his conviction became final thirty days later on June 1, 2010.[4] The following day, June 2, 2010, Petitioner's federal one-year period of limitations began to run, and it ran for 152 days until Petitioner filed a motion for post-conviction relief on November 1, 2010.[5] Ex. G at 1-11. The circuit court denied Petitioner's request for post-conviction relief on February 14, 2014. Id. at 42-45. Petitioner appealed, and the First District Court of Appeal per curiam affirmed the denial of post-conviction relief on September 30, 2014. Ex. J. The mandate issued on October 28, 2014. Ex. K. After the mandate issued, Petitioner filed a motion for rehearing, which was summarily denied on ...


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