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Broadnax v. Jones

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

June 18, 2018

MARCUS TYRONE BROADNAX, Petitioner,
v.
JULIE JONES, Secretary, Florida Department of Corrections, Respondent.

          AMENDED REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         On February 1, 2017, Petitioner Marcus Tyrone Broadnax filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On March 30, 2018, Respondent filed a motion to dismiss the petition as untimely, with exhibits. ECF No. 17.[1] On June 4, 2018, Petitioner filed a motion for extension of time to file a reply, which was granted. ECF No. 22; see also ECF No. 23. Petitioner filed a reply on June 12, 2018, with exhibits. See ECF No. 24.

         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).

         PROCEDURAL BACKGROUND

         According to the Fourth Amended Information, filed October 7, 2011, Petitioner was charged with robbery while armed with a firearm and wearing a mask (Count 1), possession of a firearm by a convicted felon (Count 2), two counts of aggravated assault by threat with a firearm (Count 3 and Count 4), tampering with a witness, victim or informant (Count 5), solicitation to commit perjury (Count 6), and introducing contraband article into a county detention facility (Count 7). Ex. A at 7-8.[2] Petitioner was charged with Counts 1-4 in connection with events that occurred on or about June 26, 2010. Id. Petitioner was charged with Counts 5-7 in connection with events that occurred between June 29, 2010, and December 6, 2010, while Petitioner was awaiting trial for Counts 1-4. Id. These charges were severed and tried separately: Counts 1-4 were tried on July 1, 2011, and Counts 5-7 were tried on November 9, 2011. See Ex. G at 81-84, 91; Ex. A at 295.

         On July 1, 2011, in the first trial, Petitioner was tried and convicted of Counts 1, 3, and 4. Ex. G at 76-78.[3] The State announced a Nol Pros as to Count 2. Ex. G. at 98. On August 30, 2011, Petitioner was sentenced to life without parole as to Count 1, 5 years to run concurrently as to Count 3, and time served as to Count 4. Id. at 94-98; see also Ex. A at 224. In his second trial, Petitioner was convicted of Counts 6 and 7. Ex. A at 317. The Court granted the defense's motion for judgment of acquittal as to Count 5. Id. at 323. On November 15, 2011, Petitioner was sentenced to 40.425 months in prison for each count. Id. at 320.

         Petitioner filed a direct appeal of the judgment and sentence imposed on Counts 6 and 7 to the First District Court of Appeal (First DCA) on November 17, 2011. Ex. A at 327.[4] On February 1, 2012, Petitioner filed an amended notice to appeal the judgments of counts 1, 3, and 4. Broadnax v. State, 77 So.3d 252 (Fla. 1st DCA 2012). Petitioner's convictions and sentences in both cases were per curiam affirmed without a written opinion on February 11, 2013, and the mandate issued February 27, 2013. Ex. F.

         On February 27, 2014, Petitioner mailed a motion for post-conviction relief to the state trial court in accordance with Florida Rule of Criminal Procedure 3.850. Ex. L at 1-9. Petitioner amended the motion several times and submitted the final version on February 5, 2015. Id. at 46-65. The state trial court denied Petitioner's motions for post-conviction relief on February 27, 2015. Id. at 67-74. The court rejected several of Petitioner's claims as facially insufficient and some had been available for review on direct appeal; therefore, relief could not be granted. Id.

         The First DCA received Petitioner's pro se notice of appeal from the order denying his motion for post-conviction relief on Tuesday, March 31, 2015, the day after the appeal period expired. Ex. L at 133. On April 13, 2015, the First DCA issued an order to show cause for untimeliness. Ex. M. Petitioner responded on April 22, 2015, and the court dismissed the appeal per curiam without an opinion on May 15, 2015. Exs. N and O. Petitioner filed a motion for rehearing on June 1, 2015, which was denied on June 29, 2015. Ex. O at 2. Petitioner then filed an amended motion for rehearing on July 10, 2015, which was denied on August 13, 2015. Id. at 8.

         On July 24, 2015, the Florida Supreme Court denied Petitioner's Notice to Invoke Discretionary Jurisdiction after the Court determined it was without jurisdiction. Id. at 10. Similarly, the Florida Supreme Court rejected the amended Notice to Invoke Discretionary Jurisdiction on September 11, 2015. Id. at 11.[5]

         On July 28, 2015, Petitioner filed a Petition for Writ of Habeas Corpus in the state trial court. Ex. P at 1-27. The petition raised several claims of newly discovered evidence. Id. On November 24, 2015, the state trial court denied the petition for writ of habeas corpus because the claims were “in many cases repetitive of claims already addressed by the Court.” Id. at 29.

         On December 7, 2015, Petitioner appealed the order denying his petition for writ of habeas corpus. Id. at 40. The First DCA per curiam affirmed the decision without a written opinion on September 20, 2016. Ex. S at 1. Petitioner's subsequent Motion for Rehearing and Motion for Clarification were denied on December 19, 2016. Id. at 1-7. The First DCA issued a mandate on January 4, 2017, following the Florida Supreme Court's refusal to Invoke Discretionary Jurisdiction. Id. at 8-11. As indicated above, Petitioner filed a petition for writ of habeas corpus in this Court on February 1, 2017. ECF No. 1. Respondent has filed a motion to dismiss the § 2254 petition as untimely. ECF No. 7.

         ANALYSIS

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