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Griego v. Jones

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

May 14, 2018

ANTHONY REGELIO GRIEGO, Petitioner,
v.
JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS AMENDED § 2254 PETITION AS UNTIMELY

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         On January 19, 2017, under the mailbox rule, Petitioner Anthony Regelio Griego, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Pursuant to leave of court, an amended petition was filed on March 16, 2017. ECF No. 7. The Respondent was ordered to file an answer, motion, or other response to the petition. ECF No. 8. On December 20, 2017, Respondent filed a motion to dismiss the § 2254 petition as untimely. ECF No. 20 (with exhibits). Petitioner has filed a reply to the motion. ECF No. 27 (with exhibits).

         The matter is referred to the undersigned United States Magistrate Judge for issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters, pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all issues raised by the parties, the undersigned has determined that no evidentiary hearing is required. As explained below, based on the pleadings and attachments before the Court, the undersigned has determined Respondent's motion to dismiss should be denied and the Respondent should be directed to file a response to the amended § 2254 petition.

         Procedural History

         Defendant was charged by Information filed on September 11, 2007, with DUI Manslaughter of Gerran Clayton Copeland in Santa Rosa County, Florida, on August 19, 2007, in violation of sections 316.193(1) and 316.193(3)(c)(3), Florida Statutes. Ex. B1 at 23.[1] He was also charged with Count Two, leaving the scene of an accident involving a death and Count Three, resisting an officer. Id. After a plea of guilty as charged to the offenses, Defendant was sentenced on April 23, 2008, to 13 years in prison for Count One, DUI Manslaughter, 8 years for Count Two consecutive to the sentence in Count One, and 270 days in jail for Count Three, concurrent to the sentence in Count One. Ex. B1 at 42-48.

         Petitioner appealed to the state First District Court of Appeal and his counsel filed an Anders brief.[2] Ex. B4 at 7. The appellate court affirmed per curiam without written opinion on February 25, 2010. Ex. B5. See Griego v. State, 29 So.3d 1121 (Fla. 1st DCA 2010) (table). The mandate was issued on March 23, 2010. Ex. B6.

         On May 24, 2010, Petitioner, with counsel, filed a motion for modification of sentence. Ex. D1 at 4-18. No. formal order disposing of the motion appears in the record. However, circuit court notes indicate Petitioner was given a hearing on a motion for modification of sentence on June 29, 2011, and the motion was denied on that date. Ex. D1 at 42. Although record does not indicate the filing date of the motion heard on June 29, 2011, there is no reason to conclude it was not the one filed on May 24, 2010. The circuit court docket contained in the record does not show any other motion for modification filed between May 24, 2010, and the court hearing on June 29, 2011, when the motion for modification of sentence was denied. See D1 (page 7 of progress docket).

         On February 16, 2012, Petitioner filed a petition for writ of habeas corpus in the First District Court of Appeal alleging ineffective assistance of appellate counsel. Ex. C1. The petition was denied on the merits on March 8, 2012. Ex. C2. See Griego v. State, 81 So.3d 615 (Fla. 1st DCA 2012) (table).

         Petitioner filed a Motion for Postconviction Relied pursuant to Florida Rule of Criminal Procedure 3.850 on March 22, 2012, under the mailbox rule, in which he alleged 14 grounds for relief. Ex. D1 at 47-77. An order was entered on May 16, 2012, striking the pro se motion for postconviction relief with leave to amend to encompass all the post-conviction matters Petitioners sought to raise. Ex. D1 at 80. Petitioner filed an Amended Motion for Postconviction Relief on June 29, 2012, Ex. D1 at 84-119, and a “Final Amendment to Defendant's Previously Filed ‘Amended' Motion for Postconviction Relief with Incorporated Memorandum of Law, ” alleging 14 grounds, on May 9, 2013. Ex. D1 at 160-97.

         The postconviction court entered an order on February 17, 2014, setting an evidentiary hearing on all Petitioner's claims except ground two. Ex. D2 at 226-29. Counsel was appointed and an evidentiary hearing was held on January 27, 2015. Ex. D4. The post-conviction motion was denied, D2 at 254-400, and a timely appeal followed. On November 9, 2016, the First District Court of Appeal affirmed per curiam without a written opinion. Ex. D9. Rehearing was denied January 5, 2017. Ex. D11. The mandate issued January 23, 2017. Ex. D12. See Griego v. State, 207 So.3d 224 (Fla. 1st DCA 2016).

         On January 19, 2017, pursuant to the mailbox rule, Petitioner, pro se, filed his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. ECF No. 1. His amended petition was filed on March 16, 2017. ECF No. 7.

         Respondent filed a motion to dismiss the petition and amended petition as untimely pursuant to the requirement of 28 U.S.C. § 2244(d).

         Analysis

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a one-year limitations period for filing a § 2254 petition. 28 U.S.C. § 2244(d)(1). Respondent contends that the petition was untimely filed and that neither equitable tolling nor miscarriage of justice or ...


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