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Winland v. Florida Attorney General and Secretary, DOC

United States District Court, M.D. Florida, Fort Myers Division

July 13, 2018

DOUGLAS K. WINLAND, Petitioner,
v.
FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner Douglas K. Winland's pro se Petition for Writ of Habeas Corpus under 28 U.S.C. Section 2254 constructively filed on December 28, 2015.[2] (Doc. 1, Petition). Winland, who is incarcerated within the Florida Department of Corrections, challenges his 2012 conviction and sentence entered by the Twentieth Judicial Circuit Court in and for Lee County, Florida for attempted second degree murder with a firearm, aggravated assault with a firearm, and shooting at, into, or within a dwelling or building (Case No. 10-CF-20013). (Id.). Respondent, the Secretary of the Florida Department of Corrections, filed a limited response to the petition, incorporating a motion to dismiss the Florida Attorney General as a respondent and dismiss the petition as untimely filed. (Doc. 9). Petitioner filed a reply to the limited response. (Doc. 12).

         Proper Named Respondent

         Respondent seeks dismissal of the Florida Attorney General as a Respondent from this action. When a petitioner is incarcerated and challenges his present physical confinement “the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004) (citations omitted). Here, petitioner was committed to the custody of the Florida Department of Corrections. (Exh. 5 at 3).[3] The proper named respondent is the Secretary of the Florida Department of Corrections. Therefore, the Florida Attorney General will be dismissed as a named respondent from this action.

         Procedural History

         The Honorable Thomas S. Reese adjudicated Winland guilty in accordance with the jury's verdict of attempted second degree murder (count one), aggravated assault with a firearm (count two), and shooting at, within, or into a dwelling or building (count three), and sentenced Winland to a minimum mandatory sentence of twenty (20) years imprisonment on March 28, 2012. (Exh. 5). The state appellate court affirmed Winland's conviction and sentence without opinion on direct appeal in number 2D12-2414 on August 16, 2013. (Exh. 8). Winland did not petition the United States Supreme Court for certiorari review.

         Winland filed a pro se 50 page motion for post-conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure identifying 19 grounds for relief on May 12, 2014. (Ex. 9). The state post-conviction court entered an order on July 1, 2014, directing Winland to amend his Rule 3.850 motion finding: (1) the Rule 3.850 motion was timely and contained the proper oath but failed to comply with Rule 3.850's “formatting requirements”; and (2) the majority of the grounds for relief (18 of 19) were “facially insufficient.” (Id.). Winland filed an amended Rule 3.850 motion on August 18, 2014. (Exh. 11). After response from the State (Exh. 13), the post-conviction court denied Winland's amended Rule 3.850 motion without a hearing on November 14, 2014. (Exh.14). Florida's appellate court per curiam affirmed on appeal. Winland v. State, 177 So.2d 619 (Fla. 2d DCA 2015). Mandate issued on August 13, 2015. (Ex. 17).

         Although not relevant for this Order, the record reflects that Winland filed a state petition for writ of habeas corpus alleging ineffective assistance of appellate counsel on October 22, 2015. (Ex. 18). The state circuit court dismissed the petition as untimely. (Doc. 19). Winland then filed a “Successive Motion for Postconviction Relief” on October 13, 2015. (Exh. 20). The post-conviction court dismissed the Successive Motion as untimely and successive under Rule 3.850. (Exh. 21). Winland appealed the dismissal. (Doc. 22). Florida's appellate court per curiam affirmed. Winland v. State, 202 So. 3d. 421 (Fla. 2d DCA 2016).

         Applicable Law and Analysis

         Under the requirements in 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-year period of limitation applies to filing a federal habeas petition by a person in custody under a state court judgment. This one-year limitation period begins to run from the latest of four triggering events:

(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 that 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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