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Luke v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

June 27, 2018

RICKY E. LUKE, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE

         Petitioner 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).

         Respondents, 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.[1] Petitioner filed an Objection (Reply) (Doc. 13). See Order (Doc. 5).

         Pursuant 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 subsection.

28 U.S.C. § 2244(d).

         To 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.

         Thereafter, 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 motion.").

         The 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.[2] 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, ...


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