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Brown v. Jones

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

May 17, 2018

DESMOND BROWN, Petitioner,
JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent.



         On 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.

         The 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).


         Petitioner 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 29.[1] 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.

         On 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.

         Petitioner 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.

         By 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 . . . .”).

         Petitioner 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 47-48, 51.

         On 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.


         Petitioner 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.

         In this 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”).

         The 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 petition ...

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