United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS
AMENDED § 2254 PETITION AS UNTIMELY
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
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).
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.
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
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.
appealed to the state First District Court of Appeal and his
counsel filed an Anders brief. 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.
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
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
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
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
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.
filed a motion to dismiss the petition and amended petition
as untimely pursuant to the requirement of 28 U.S.C. §
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