United States District Court, M.D. Florida, Fort Myers Division
DOUGLAS K. WINLAND, Petitioner,
FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
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. (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).
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
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
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.
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).
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
Law and Analysis
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
(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