United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS United States District Judge
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. 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),
argue the Petition must be dismissed with prejudice as
untimely. Petitioner filed a Reply (Doc. 17). See
Order (Doc. 15).
Antiterrorism and Effective Death Penalty Act (AEDPA)
(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
28 U.S.C. § 2244(d).
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. 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.
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).
Petitioner, on April 23, 2014, pursuant to the mailbox rule,
filed a state Petition for Writ of Habeas Corpus,
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.
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 ...