United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
Before the Court is Petitioner Jose Oscar Perez's pro
se Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. Section 2254 constructively filed on November 13,
2015.(Doc. 1, Petition). Perez, who is
incarcerated within the Florida Department of Corrections,
challenges his 2006 conviction and sentence entered by the
Twentieth Judicial Circuit Court in and for Lee County,
Florida for second degree murder with a firearm.
(Id. at 1). Respondent, the Secretary of the Florida
Department of Corrections, filed a limited response to the
petition incorporating a motion to dismiss the petition as
untimely filed. (Doc. 18). Petitioner elected not to file a
reply to the limited response. (See Doc. 22). As
discussed below, the Court concludes that additional briefing
and evidence are required.
a jury trial, Perez was adjudicated guilty and sentenced to
twenty-five years in prison for Second Degree Murder with a
Firearm on May 26, 2006. (Ex. 1).Florida's Second District
Court of Appeal affirmed Perez' sentence and conviction
on August 10, 2007. Perez v. State, 954 So.2d 744
(Fla. 2d DCA 2007). Perez did not petition the United States
Supreme Court for certiorari review.
April 24, 2008, Perez filed his first post-conviction motion,
a state petition alleging ineffective assistance of appellate
counsel, which was denied by the Second District Court of
Appeal of Florida on June 25, 2008. Perez v. State,
985 So.2d 540 (Fla. 2d DCA 2008). His motion for rehearing
was denied on June 26, 2008. (Ex. 3).
January 30, 2009, Perez filed a Florida Rule of Criminal
Procedure 3.800(a) Motion to Correct Illegal Sentence, which
was denied by the state post-conviction trial court. (Ex. 4).
On August 14, 2009, the Second District Court of Appeal of
Florida per curiam affirmed the denial of the
motion, and mandate issued on September 10, 2009. Perez
v. State, 15 So.3d 589 (Fla. 2d DCA 2009) (Ex. 4).
September 17, 2009, Perez filed a Florida Rule of Criminal
Procedure 3.850 Motion for Post-Conviction Relief, that was
dismissed as untimely by the post-conviction trial court.
(Ex. 5). Upon appeal, the Second District Court of Appeal of
Florida reversed finding that the Rule 3.850 motion was
timely filed within two-years of the date mandate issued
(October 15, 2007). (Id.). After remand and denial
of the Rule 3.850 motion by the post-conviction court on
November 4, 2010, Perez filed a petition for belated appeal
with the Second District Court of Appeal on August 22, 2012.
(Ex. 7). In his petition for belated appeal, Perez claimed
that he did, in fact, deliver to correctional officials for
mailing a copy of his notice of appeal on November 26, 2010.
(Id.). The Second District Court of Appeal granted
the belated appeal and reversed and remanded on ground 3 of
the Rule 3.850 motion. (Ex. 6). After remand and evidentiary
hearing, the post-conviction trial court denied ground 3 of
the Rule 3, 850 motion. (Id.).
February 5, 2015, Perez filed a “Motion to Hear and
Rule” referencing a Rule 3.800(a) motion that Perez
claimed he filed on June 16, 2008, for which he had not yet
received a ruling. (Ex. 8). Perez attached a copy of a
“Motion to Correct Illegal Sentence” bearing a
date-stamp indicating that the motion was “provided to
Century CI on June 16, 2008 for mailing” with the
initials “J.P.” (Id.). The
post-conviction court, noting that the motion was never
received by the clerk of court, denied the motion on the
merits on October 26, 2015. (Id.).
Law and Analysis
to the requirements set forth 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 the filing of a federal habeas petition
by a person in custody pursuant to 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