United States District Court, M.D. Florida, Tampa Division
JAMES A. WARREN, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE.
Warren, a Florida inmate, filed a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (Doc. 1). Before the Court
is Respondent's limited response to the petition, which
incorporates a motion to dismiss the petition as time-barred
(Doc. 14). Upon consideration, the motion to dismiss will be
September 4, 2008, Mr. Warren was convicted of four counts of
sexual battery and sentenced to life in prison (Doc. 15-1,
docket pp. 174-76, 208). His convictions and sentences were
affirmed on appeal on June 11, 2010 (Id., docket p.
30, 2011, Mr. Warren filed a motion for post-conviction
relief under Rule 3.850, Florida Rules of Criminal Procedure
(Id., docket pp. 273-83). The motion was denied
(Doc. 15-2, docket pp. 2-60), and the denial of the motion
was affirmed on appeal (Id., docket p. 91). The
appellate court's mandate issued December 13, 2017
(Id., docket p. 107). Mr. Warren thereafter filed
his federal habeas petition in this Court on December 13,
2018 (Doc. 1, p. 1).
moves to dismiss the petition as time-barred under 28 U.S.C.
§ 2244(d), arguing that more than one year passed after
Mr. Warren's judgment became final. The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) establishes a one
year statute of limitations for federal habeas petitions. 28
U.S.C. § 2244(d)(1). Lawrence v. Florida, 549
U.S. 327, 331 (2007). The limitations period runs from
"the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review" § 2244(d)(1)(A). Additionally,
"[t]he time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this
subsection." § 2244(d)(2).
Mr. Warren's judgment of conviction was affirmed on
appeal on June 11, 2010, it became final 90 days later, on
September 9, 2010, when the time for filing a petition for
writ of certiorari in the United States Supreme Court
expired. Clay v. United States, 537 U.S. 522, 527
(2003); Bond v. Moore, 309 F.3d 770, 774 (11th Cir.
2002). Two hundred ninety-four (294) days
of the AEDPA's limitations period elapsed before it was
tolled by Mr. Warren's Rule 3.850 motion, constructively
filed June 30, 2011. The limitations period remained tolled
until December 13, 2017, when the appellate court issued its
mandate after affirming the denial of the Rule 3.850 motion.
See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir.
2000) (Rule 3.850 motion considered pending until the mandate
issues in any appellate proceeding). The limitations period
expired 71 days later on February 22, 2018. Accordingly, Mr.
Warren's petition, filed in December 2018, is
therefore ORDERED that Respondent's
motion to dismiss (Doc. 14) is GRANTED. The
petition for writ of habeas corpus (Doc. 1) is
DISMISSED as time-barred. The
Clerk shall enter judgment against Mr.
Warren and close this case.
of Appealability and Leave to Proceed on Appeal In Forma
certificate of appealability will issue only if the
petitioner makes "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
Generally, a petitioner must demonstrate that reasonable
jurists would find this court's assessment of the
constitutional claims debatable or wrong. Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quotation omitted), or
that "the issues presented were 'adequate to deserve
encouragement to proceed further.'" Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting
Barefoot v. Estette, 463 U.S. 880, 893 n.4 (1983)).
as here, claims have been rejected on procedural grounds, the
petitioner must show that "jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." ld.;
Webster v. Moore, 199 F.3d 1256, 1257 n. 2 (11th
Cir. 2000) (dismissal of habeas petition as time-barred is
procedural). Mr. Wan-en cannot make that showing. And since
he is not entitled to a certificate of appealability, he is
not entitled to appeal in forma pauperis.