United States District Court, N.D. Florida, Pensacola Division
AMENDED REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
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. 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.
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
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. 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.
1, 2011, in the first trial, Petitioner was tried and
convicted of Counts 1, 3, and 4. Ex. G at
76-78. 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.
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. 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.
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
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.
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.
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.
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