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Stokes v. Florida Department of Corrections

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

May 11, 2018



          Timothy J. Corrigan United States District Judge

         Petitioner initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) (Petition) on August 17, 2015.[1] She challenges a 2014 state court (Bradford County, Florida) judgment of conviction for home invasion robbery with a deadly weapon and conspiracy to commit home invasion robbery with a deadly weapon. Petitioner is serving a total term of imprisonment of 12 years. Respondents contend that the Petition was untimely filed, and therefore, this case must be dismissed. See Motion to Dismiss (Doc. 13) (Motion).[2] Petitioner filed a Reply (Doc. 15). The case is ripe for review.[3]

         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).

         After Petitioner pled nolo contendere, the circuit court entered judgment against her on February 4, 2014. Ex. A. The court sentenced Petitioner to concurrent twelve-year sentences on each count. Petitioner did not file a direct appeal; therefore, her conviction became final thirty days later on March 6, 2014. The following day, March 7, 2014, Petitioner's federal one-year period of limitations began to run. On August 8, 2014, Petitioner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. On August 13, 2014, the circuit court denied the motion, finding that it “fails to meet the oath requirement of Fla. R. Crim. P. 3.850(c), ” and “[e]ven if the motion were properly sworn, the claim raised is without merit.” State v. Stokes, 2013-CF-000384 (Fla. 8th Cir. Ct.); see also Ex. A. Petitioner appealed, and the First District Court of Appeal (DCA) per curiam affirmed the denial of postconviction relief.[4] Ex. B. The mandate issued on February 17, 2015. Ex. C. Petitioner filed the instant case on August 17, 2015.

         Whether the Petition is timely filed depends on whether Petitioner's Rule 3.850 motion was a “properly filed” tolling motion. 28 U.S.C. § 2244(d)(2). Respondents cite to Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000), [5] and argue that Petitioner's Rule 3.850 motion was not properly filed, because the circuit court denied the motion “for lacking the required oath.” Motion at 13.

         When a Rule 3.850 motion fails to contain the required oath, a circuit court should dismiss the motion without prejudice to allow the defendant to refile and cure the defect. See Spera v. State, 971 So.2d 754, 755 (Fla. 2007) (holding “that in dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected”). Here, while the circuit court found Petitioner's Rule 3.850 motion was facially insufficient, Petitioner was not given the opportunity to amend. Instead, the circuit court entered a final appealable order denying the motion on the merits. As such, this Court declines to agree with Respondents.

         Nevertheless, regardless of whether the Petition is timely filed, it is without merit.[6]Petitioner raises one ground: “violation of Petitioner's Sixth Amendment right to effective as[s]istance of counsel and violation of Fifth Amendment Right for counsel's failure to challenge the charged offenses on double jeopardy.” Petition at 4 (emphasis and capitalization omitted).[7] She argues that her convictions violate double jeopardy because they “arose from the same criminal act, on the exact same day, and involved the same victim.” Id. She contends that she “would not have open ple[]d to both charges had ...

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