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Saulnier v. Secretary, Florida Department of Corrections

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

May 17, 2018

RUSSELL SAULNIER, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS United States District Judge

         Petitioner Russell Saulnier initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) on July 27, 2016, pursuant to the mailbox rule.[1] He challenges 2012 state court (Duval County) judgments of conviction for sexual battery, attempted sexual battery, attempted lewd and lascivious molestation, and lewd and lascivious molestation. Id. Respondents, in their Motion to Dismiss Petition for Writ of Habeas Corpus (Response) (Doc. 16), [2] argue the Petition must be dismissed with prejudice as untimely. Petitioner filed a Reply (Doc. 17). See Order (Doc. 15).

         The Antiterrorism and Effective Death Penalty Act (AEDPA) provides:

(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).

         Petitioner was charged by information with two counts of sexual battery and two counts of lewd or lascivious molestation. Ex. 3 at 14. On February 13, 2012, Petitioner signed a Plea of Guilty and Negotiated Sentence form. Id. at 31-34. He entered pleas of guilty to attempted sexual battery, sexual battery, attempted lewd or lascivious molestation, and lewd or lascivious molestation. Id. at 31. He pled guilty in exchange for a negotiated sentence of twelve years imprisonment, concurrent, followed by ten years of sexual offender probation on counts one, two and three. Id. As part of the agreement, he understood he would be designated a sexual predator. Id. The court entered judgment on February 13, 2012.[3] Ex. 2 at 1-2. As set forth in the agreement, the court designated Petitioner a sexual predator and sentenced him to concurrent terms of twelve years, followed by ten years of sexual offender probation on counts one, two, and three. Id. at 4-8. Ex. 3 at 38-42.

         Petitioner did not appeal. Thus, the judgments became final thirty days later on Wednesday, March 14, 2012. See Fla. R. App. P. 9.140(b)(3); Saavedra v. State, 59 So.3d 191, 192 (Fla. 3rd DCA 2011); Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988) (holding that, when a defendant does not file a direct appeal, the conviction becomes final when the thirty-day period for filing a direct appeal expires).

         Although Petitioner, on April 23, 2014, pursuant to the mailbox rule, filed a state Petition for Writ of Habeas Corpus, [4]Ex. 3 at 1-22, this motion did not toll the federal one-year limitation period because it had already expired on Friday, March 15, 2013. See Tinker v. Moore, 255 F.3d 1331, 1334-35 (11th Cir. 2001) (holding that, even though Florida law allows a prisoner two years to file a Rule 3.850 motion, the prisoner must file the motion within one year after his conviction becomes final in order to toll the one-year limitation period), cert. denied, 534 U.S. 1144 (2002); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (per curiam) ("Under § 2244(d)(2), even 'properly filed' state-court petitions must be 'pending' in order to toll the limitations period. A state-court petition like [Petitioner]'s that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled."), cert. denied, 531 U.S. 991 (2000). Thus, this action was not timely filed.[5]

         Based on the foregoing, the Petition is untimely and due to be dismissed unless Petitioner can establish that equitable tolling of the statute of limitations is warranted. The Court recognizes that "§ 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). There is a two-pronged test for equitable tolling, and it requires a petitioner to demonstrate "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing." Id. at 649 (quotation marks omitted); see Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (stating that equitable tolling "is a remedy that must be used sparingly"); see also Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (per curiam) (noting that ...


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