United States District Court, M.D. Florida, Tampa Division
WILLIMA F. JUNG UNITED STATES DISTRICT JUDGE
Miller, a Florida inmate, initiated this action, through
counsel, by filing a Petition for Writ of Habeas Corpus under
28 U.S.C. § 2254 (Doc. 1). Respondent filed a limited
response to the petition, which incorporates a motion to
dismiss the petition as time-barred (Doc. 9). Upon
consideration, the motion to dismiss will be granted.
Miller was convicted of lewd or lascivious molestation and
sentenced on March 30, 2012, to 20 years in prison (Doc. 1,
docket p. 1). His conviction and sentence were affirmed on
appeal on May 17, 2013 (Id., docket p. 2; Doc. 10-2,
docket pp. 20-21).
January 2013, Mr. Miller filed a, pro se Motion for
Post Conviction Relief under Rule 3.850, Florida Rules of
Criminal Procedure (Doc. 10-2, docket pp. 2-13). The motion,
however, was dismissed because the state circuit court was
without jurisdiction to rule on it, since Mr. Miller's
direct appeal was still pending (Id., docket pp.
17-18). On March 9, 2015, Mr. Miller, through counsel, filed
a second Rule 3.850 motion (Id., docket pp. 23-43).
That motion was denied on April 24, 2017 (Id.,
docket pp. 45-54). The denial of the motion was affirmed on
appeal, and the appellate court's mandate issued on March
8, 2018 (Id., docket p. 56). Mr. Miller thereafter
filed his federal habeas petition in this Court on February
8, 2019 (Doc. 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. Miller's judgment of conviction 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. Miller's judgment was affirmed on appeal on May 17,
2013, it became final 90 days later, on August 15, 2013, 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). Although Mr.
Miller filed a Rule 3.850 motion in January 2013, it was not
"properly filed" for purposes of tolling the
AEDPA's limitations period because the circuit court was
without jurisdiction to rule on the motion while Mr.
Miller's direct appeal was still pending. See
Rashardv. Sec'y, DOC, 2017 WL 176906, at *2 (M.D.
Fla. Jan. 17, 2017) ("Only properly filed motions toll
the [AEDPA's] limitation period.") (citing 28 U.S.C.
§ 2244(d); Artuz v. Bennett, 531 U.S. 4, 8
(2000)); Artuz, 531 U.S. at 8-9 ("[A]n
application is 'properly filed' when its
delivery and acceptance are in compliance with the applicable
laws and rules governing filings. .. If, for example, an
application is erroneously accepted by the clerk of a court
lacking jurisdiction, or is erroneously accepted without the
requisite filing fee, it will be pending, but
not properly filed.") (emphasis in original);
Daniels v. State, 712 So.2d 765 (Fla. 1998)
("[D]uring the pendency of a defendant's direct
appeal, the trial court is without jurisdiction to rule on a
motion for postconviction relief"). The AEDPA's
limitations period therefore expired on August 15, 2014, one
year after Mr. Miller's judgment became final on August
15, 2013. Accordingly, Mr. Miller's petition,
filed in February 2019, is time-barred.
therefore ORDERED that Respondent's
motion to dismiss (Doc. 9) is GRANTED. The petition for writ
of habeas corpus (Doc. 1) is DISMISSED as
time-barred. The Clerk shall enter judgment
against Mr. Miller and close this case.
of Appealability and Leave to Proceed on Appeal In Forma
certificate of appealability will issue only if Mr. Miller
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. Tennardv.
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.
Cockreli, 537 U.S. 322, 335-36 (2003) (quoting
Barefoot v. Estelle, 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." Id.; Webster v,
Moore, 199 F.3d 1256, 1257 n. 2 (11th Cir. 2000)
(dismissal of habeas petition as time-barred is procedural).
Mr. Miller cannot make that showing. And since he is not
entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.