United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
April 5, 2017, Petitioner Desmond Brown, an inmate proceeding
pro se, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. ECF No. 1. On February 27, 2018,
Respondent filed a motion to dismiss the petition as
untimely, with exhibits. ECF No. 14. Petitioner has not filed
a reply, although given the opportunity to do so.
See ECF No. 13.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration, the undersigned has
determined no evidentiary hearing is required for the
disposition of this matter. See Rule 8(a), R. Gov.
§ 2254 Cases. The pleadings and attachments before the
Court show the petition is untimely and should be dismissed.
See Rule 4, R. Gov. § 2254 Cases (allowing
dismissal “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief” in federal court).
entered a plea of nolo contendere to the charges of burglary
of a dwelling with a person assaulted while armed (Count 1),
attempted armed robbery with a firearm (Count 2), and
carrying a concealed firearm (Count 3). See Ex. A at
On January 23, 2014, the state trial court adjudicated him
guilty on all three counts, and sentenced him to 10 years in
prison followed by 5 years of probation, with jail credit for
178 days, pursuant to section 775.087, Florida Statutes.
Id. at 32-35.
February 24, 2014, Petitioner filed a direct appeal to the
First District Court of Appeal (First DCA), and his counsel
submitted a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Ex. C. Petitioner's conviction and
sentence were per curiam affirmed without a written opinion
on May 29, 2015, and the mandate issued June 24, 2015.
See Ex. D.
filed this petition for writ of habeas corpus on April 5,
2017. ECF No. 1. On June 29, 2017, in the state trial court,
Petitioner filed a pro se Motion to Correct an Illegal
Sentence. Ex. E at 3. On July 27, 2017, Petitioner filed a
pro se Motion for Post-Conviction Relief in state court.
Id. at 24-29.
order rendered July 28, 2017, the state trial court denied
Petitioner's Motion to Correct an Illegal Sentence.
Id. at 30. The court explained the sentence was
imposed as part of Petitioner's plea agreement and could
not be challenged in a motion pursuant to Florida Rule of
Criminal Procedure 3.800(a). Id. at 30. See
Haynes v. State, 106 So.3d 481, 482 (Fla. 5th DCA 2013)
(“As the sentence was the product of a negotiated plea,
the remedy is not to correct the illegal sentence, but rather
a motion under Rule of Criminal Procedure 3.850 to set aside
the plea . . . .”).
then filed a pro se Motion for Rehearing on August 14, 2017.
Ex. E at 43-46. The trial court denied the Petitioner's
Motion for Post-Conviction Relief as untimely, and denied his
Motion for Rehearing on August 18, 2017. Id. at
August 29, 2017, Petitioner filed an appeal from the order
denying Petitioner's 3.800 motion, the order denying
rehearing, and the order denying his motion for
post-conviction relief. Ex. F. The First DCA issued
a per curiam affirmance without a written opinion on January
19, 2018. Ex. G.
has filed a pro se petition for writ of habeas corpus under
Title 28, United States Code, section 2254. ECF No.1.
Pursuant to the Antiterrorism and Effective Death Penalty Act
(AEDPA), “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.” 28
U.S.C. § 2244(d)(1). The limitation period starts on (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 an
unconstitutional impediment which prevented the applicant
from filing is removed, (C) the date on which a right, if
recently recognized by the Supreme Court, is made
retroactively applicable to cases on collateral review, or
(D) the date on which facts of the claims presented could
have been discovered through due diligence. Id. When
a proper application for post-conviction relief has been
filed with the State court, time will be tolled while the
claim is pending. Id.
case, the state trial court sentenced Petitioner on January
23, 2014. Ex. A 32-35. Petitioner appealed his convictions
and sentence to the First DCA, which affirmed the case on May
29, 2015. Ex. D. Petitioner's conviction became final
Thursday, August 27, 2015, when the ninety (90)-day period to
seek review in the United States Supreme Court expired. Sup.
Ct. R. 13 (2013) (providing that petition for a writ of
certiorari is timely when filed “within 90 days after
entry of the order denying discretionary review”);
see also Clifton v. Sec'y, Dep't of Corr.,
No. 06-61236-CIV, 1012 WL 3670264, n.3 (M.D. Fla. Aug. 27,
2012) (stating that Supreme Court of Florida does not have
jurisdiction over per curiam decisions on direct appeal,
therefore “filing a petition for writ of discretionary
review with the Supreme Court of Florida would be futile,
[and] Petitioner was not required to file such a petition to
toll the one-year limitations period for ninety days”).
AEDPA limitations period expired one year later, on August
27, 2016. See Ferreira v. Sec'y, Dep't of
Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007) (stating
that limitations period ends on anniversary date of
triggering event); Downs v. McNeil, 520 F.3d 1311,
1311 (11th Cir. 2008) (using anniversary method). Petitioner
did not file any post-conviction motions in state court until
June 29, 2017. Ex. E. He subsequently filed additional
post-conviction motions. Ex. E at 2. The one-year AEDPA
limitations period had already expired when these motions
were filed. See,e.g., Hutchinson v.
State of Fla., 677 F.3d 1097, 1098 (11th Cir. 2012)
(“In order for that § 2244(d)(2) statutory tolling
to apply, the petitioner must file his state collateral