Perez v. Secretary

          OPINION AND ORDER ^[1]

          SHERI 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.^[2](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.

         Procedural History

         Following 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).^[3]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.

         On 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).

         On 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).

         On 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.).

         On 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.).

         Applicable Law and Analysis

         Pursuant 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 ...