United States District Court, M.D. Florida, Jacksonville Division
RICKY E. LUKE, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
J. DAVIS UNITED STATES DISTRICT JUDGE
filed his Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (Petition) (Doc.
1) with the Clerk on August 1, 2016. Giving Petitioner the
benefit of the mailbox rule, this Court finds the Petition
was filed on the date Petitioner provided his Petition to
prison authorities for mailing to this Court (July 28, 2016).
See Houston v. Lack, 487 U.S. 266, 276 (1988); Rule
3(d), Rules Governing Section 2254 Cases in the United States
District Courts. With respect to his inmate pro se state
court filings, the Court will give Petitioner the benefit of
the mailbox rule when calculating the one-year limitation
period under 28 U.S.C. § 2244(d).
in their Response to Petition (Response) (Doc. 11), contend
Petitioner has failed to comply with the one-year limitation
period. Respondents filed a Notice of Filing Appendix
(Appendix) (Doc. 12), containing the relevant exhibits in
support of this contention. Petitioner filed an Objection
(Reply) (Doc. 13). See Order (Doc. 5).
to the Antiterrorism and Effective Death Penalty Act (AEDPA),
there is a one-year period of limitation:
(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).
adequately address Respondents' contention that
Petitioner has failed to comply with the limitation period,
the Court provides a brief procedural history. On April 1,
2009, Petitioner was charged by Second Amended Information
with sexual battery on a person less than 12 years of age.
Ex. A. A jury returned a verdict of guilty as charged. Ex. C.
On July 23, 2009, the trial court entered judgment and
sentenced Petitioner to life imprisonment. Ex. D.
Petitioner timely appealed. Ex. E. On June 21, 2011, the
Fifth District Court of Appeal (5th DCA) affirmed per curiam.
Ex. G. The mandate issued on July 13, 2011. Ex. H. The
conviction became final on Monday, September 19, 2011 (90
days after June 21, 2011) ("According to rules of the
Supreme Court, a petition for certiorari must be filed within
90 days of the appellate court's entry of judgment on the
appeal or, if a motion for rehearing is timely filed, within
90 days of the appellate court's denial of that
limitation period began to run on September 20, 2011, and ran
for 297 days, until, through counsel, Petitioner filed a Rule
3.850 motion in the circuit court on July 13, 2012. Ex. I. Of
note, the motion did not contain a notarized or un-notarized
oath signed by Petitioner. Id. at 24. However,
counsel filed an Amended Motion for Post Conviction Relief
containing an un-notarized oath of Petitioner. Ex. J at 298.
Following an evidentiary hearing, the circuit court denied
the Amended Rule 3.850 motion. Ex. N. Petitioner appealed.
Ex. O. The 5th DCA affirmed per curiam on March 22, ...