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Sakker v. Secretary, Doc

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

June 14, 2019

WAYNE ARTHUR SAKKER, Petitioner,
v.
SECRETARY, DOC and FLORIDA ATTORNEY GENERAL, Respondents.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the Court is Petitioner Wayne Arthur Sakker's (“Petitioner”) petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 constructively filed on September 13, 2016.[1] (Doc. #1, “Petition”). Petitioner is confined within the Florida Department of Corrections and challenges his January 5, 2012 conviction, after jury trial, for Lewd and Lascivious Molestation on a Person Less than 12 Years of Age entered by the Twentieth Judicial Circuit Court in Charlotte County, Florida in case number 2009-CF-1661. (Id. at 1-2). The Court ordered Respondent, the Secretary of the Florida Department of Corrections, to show cause why the relief sought in the Petition should not be granted (Doc. #6). Respondent filed a Limited Response (Doc. #13) asserting that the Petition must be dismissed as time-barred because it was filed beyond the one-year period of limitations set forth in 28 U.S.C. § 2244(d)(1)(A). Petitioner elected not to file a reply despite being afforded an extension of time to file a reply. (See Doc. #18). Based upon a careful review of the pleadings and record, the Court finds that the Petition is subject to dismissal a time-barred.

         I. Procedural History

         On May 19, 2010, the State filed an Amended Information charging Petitioner with Lewd and Lascivious Molestation on a Person Less than 12 Years of Age. (Ex. 1 at 41).[2] After a jury trial, Petitioner was found guilty as charged; and, on January 10, 2012 was sentenced to life in prison. (Ex. 3). On May 8, 2013, the Second District Court of Appeal affirmed Petitioner's conviction and sentence. (Ex. 7). Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.

         Petitioner initially filed a motion for post-conviction relief pursuant to Rule 3.850 on March 19, 2014, but the motion was stricken by the court because it failed “to include a proper oath.” (Ex. 13 at v). Subsequently, on April 3, 2014, Petitioner filed an Amended Rule 3.850 Motion for postconviction relief. (Ex. 8). After an evidentiary hearing, (Ex. 9), the postconviction denied the motion. (Ex. 10). The state appellate court per curiam affirmed the denial of Petitioner's Amended Rule 3.850 Motion (Ex. 15), and mandate issued on May 5, 2016 in No. 2D14-4800. (Ex. 16). As noted, Petitioner constructively filed his Petition in this Court on September 13, 2016.

         II. Analysis

         A. A 28 U.S.C. § 2254 federal habeas corpus petition is subject to a one-year statute of limitation

          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 habeas petition by a person in custody pursuant to a state court judgment. This limitation period runs 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 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 exercise of due diligence.

28 U.S.C. § 2244(d)(1). Here, Petitioner does not allege, nor does it appear from the pleadings or record, that the statutory triggers set forth in §§ 2244(d)(1)(B)-(D) apply. Therefore, the statute of limitations is measured from the remaining statutory trigger, which is the date on which Petitioner's conviction became final. 28 U.S.C. §§ 2244(d)(1)(A).

         B. Petitioner's federal habeas corpus petition is untimely under ...


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