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Manuel v. Secretary

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

June 4, 2018

FRANKLIN MANUEL, Petitioner,
v.
SECRETARY, DEP'T OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE.

         Petitioner initiated this case by fling a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his 2013 Gadsden County conviction for armed robbery with a deadly weapon, burglary of dwelling with a person assaulted, battery on a person sixty-five years of age or older, and grand theft in the third degree. (ECF No. 1.) Respondent filed a Motion to Dismiss. (ECF No. 23.) Petitioner has not filed a response in opposition and the time for doing so has expired.[1] The motion is therefore ripe for review. For the following reasons, the undersigned recommends that the motion to dismiss should be granted and the Petition should be dismissed.

         State-Court Proceedings

         Petitioner was convicted October 16, 2013, of armed robbery with a deadly weapon, burglary of dwelling with a person assaulted, battery on a person sixty-five years of age or older, and grand theft in the third degree. (ECF No. 23-1 at 98.) He was sentenced to life in prison on the charges for armed robbery and burglary of a dwelling with a person assaulted and sentenced to five years imprisonment on the battery and grand theft charges (Id. at 100-03.)[2]

         Petitioner filed a direct appeal in the First District Court of Appeal (“First DCA”). (ECF No. 23-1 at 109-10.) Counsel, however, filed a “no merits” brief under Anders v. California, 386 U.S. 738 (1967). (ECF No. 23-2 at 2-18.) Petitioner did not file a pro se appellate brief. (ECF No. 23-3 at 3-4.) The First DCA per curiam affirmed without written opinion on January 16, 2015, and the mandate followed on February 11, 2015. (Id. at 4.)

         Petitioner then filed a pro se petition for writ of habeas corpus in the First DCA on November 16, 2016, alleging ineffective assistance of counsel. (ECF No. 23-4 at 2-20.) On January 5, 2017, the First DCA dismissed the petition because Petitioner failed to perfect service of the petition on the State. (Id. at 21.)

         Petitioner therefter filed the instant Petition in this Court on March 21, 2017. (ECF No. 1.)

         One-Year Limitation Period

         Petitions filed after April 24, 1996, are governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA created a limitations period for petitions for writ of habeas corpus brought pursuant to § 2254:

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 ...

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