United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS
AMENDED § 2254 PETITION AS UNTIMELY
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
December 18, 2017, Petitioner, Christopher Baity, a prisoner
in the custody of the Florida Department of Corrections, with
counsel, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. ECF No. 1. Pursuant to order,
Petitioner filed an amended petition on the proper form on
October 29, 2018. ECF No. 15, 22. On June 14, 2019,
Respondent filed a motion to dismiss the amended complaint as
untimely. ECF No. 28. Petitioner filed a reply on July 24,
2019. ECF No. 29.
matter is referred to the undersigned United States
Magistrate Judge for issuance of all preliminary orders and
any recommendations to the district court regarding
dispositive matters, pursuant to 28 U.S.C. § 636 and
Northern District of Florida Local Rule 72.2(B). After
careful consideration of all issues raised by the parties,
the undersigned has determined that no evidentiary hearing is
required. As explained below, based on the pleadings and
attachments before the Court, the undersigned has determined
Respondent's motion to dismiss should be denied and the
Respondent should be directed to file a response to the
amended § 2254 petition.
Petitioner was charged in the Circuit Court of Leon County,
Florida with four counts: Count I, second-degree felony
murder on January 12, 2010; Count II, attempted armed robbery
with a firearm on January 12, 2010; Count III, armed robbery
with a firearm on January 13, 2010; and Count IV, Burglary of
a conveyance on January 13, 2010. Ex. A at 25-29. Petitioner
was tried on June 29, 2011, and found guilty as charged in
Counts II and III, and guilty of the lesser offense of
burglary of a conveyance while armed with a firearm in Count
IV. Ex. A at 235-38. The jury found that Petitioner possessed a
firearm with regard to Counts II, III, and IV The jury
deadlocked on Count I and Petitioner was retried on September
14, 2011. He was found guilty as charged of second-degree
felony murder with the specific finding that he discharged a
firearm. Ex. A at 289-90.
was sentenced as a prison releasee reoffender under section
775.082(8), Florida Statutes, to fifteen years in prison for
Count II and to life in prison in Counts III and IV, with a
ten-year firearm minimum mandatory sentence under section
775.087, Florida Statutes. Ex. A at 244-45. Petitioner was
also sentenced to life in prison on Count I, with a
twenty-year minimum mandatory term pursuant to section
775.087, Florida Statutes. Ex. A at 291-300.
appealed to the First District Court of Appeal where a
counseled Anders brief was filed in case number
1D11-4286. Petitioner's counsel raised two
sentencing errors in a motion under Florida Rule of Criminal
Procedure 3.800(b) concerning costs and offense
classification for second-degree murder. Ex. D, E at 54-59.
The appellate court affirmed the judgments and sentences on
April 16, 2013, but remanded to the trial court to strike the
$20 surcharge and to correct the judgment and sentence to
reflect that the second-degree murder conviction was a
first-degree felony punishable by life in prison. Ex. F.
Mandate was issued on May 14, 2013. See Baity v.
State, 111 So.3d 267 (Fla. 1st DCA 2013). Ex. F.
9, 2014, Petitioner filed a pro se motion for post-conviction
relief under Florida Rule of Criminal Procedure 3.850
alleging three claims. Ex. G at 3-12. The court summarily denied
Claim 1 as refuted by the record and set an evidentiary
hearing on Claims 2 and 3. Ex. G at 23-63. An evidentiary
hearing was held on March 2, 2015. Ex. G at 70-106. The
post-conviction judge denied the motion on the record and
advised Petitioner that a written order would follow. Ex. G
did not receive a copy of a written order and approximately
nine months later, on December 10, 2015, he inquired of the
clerk's office as to the current status of his motion.
Ex. H (see appendix B-1 to petition for belated
appeal). Petitioner was then provided a copy of the written
order denying post-conviction relief rendered on March 10,
2015, by Circuit Court Judge Terry Lewis. Ex. H (see
appendix A to petition for belated appeal). The order had
been timely provided to the prosecutor and the public
defender, although Petitioner was pro se in his
filed a Petition for Writ of Habeas Corpus for Belated Appeal
in the First District Court of Appeal pursuant to Florida
Rule of Appellate Procedure 9.141(c). Ex. H. Belated appeal
was granted after it was recommended by Judge Lewis, sitting
as a special master, and briefing was ordered. Exs. I, J.
See Baity v. State, 191 So.3d 1006 (Fla. 1st DCA
2016) (mem). Petitioner filed a pro se initial brief
appealing denial of all three post-conviction claims, Ex. K,
and the State filed an answer brief. Ex. L. The First
District Court of Appeal affirmed per curiam without opinion
on October 26, 2017. The mandate was issued on December 22,
2017. Ex. M. See Baity v State, 236 So.3d 346 (Fla.
1st DCA 2017) (table).
December 18, 2017, Petitioner filed his petition for writ of
habeas corpus in this Court pursuant to 28 U.S.C. §
2254. ECF No. 1. Respondent has filed a motion to dismiss the
petition as untimely. ECF No. 28.
the Antiterrorism and Effective Death Penalty Act (AEDPA),
there is a one-year limitations period for filing a §
2254 petition. 28 U.S.C. § 2244(d)(1). Unless the time
period is tolled or other exceptions apply, the one-year
statute of limitations for filing a writ of habeas corpus
runs from the date on which the judgment became final, which
for a state prisoner is when the United States Supreme Court
denies certiorari or issues a decision on the
merits, or when the 90-day period in which to file a
certiorari petition expires. Brooks v.
Sec'y, Dep't of Corr., 201 Fed.Appx. 725, 726
(11th Cir. 2006) (citing Bond v. Moore, 309 F.3d
770, 773-74 (11th Cir. 2002)). The 90-day period for seeking
certiorari review in the Supreme Court runs from the date of
the opinion or denial of rehearing, not the mandate.
See S.Ct. Rule 13(3).
time frame may commence later based on: the date on which an
unconstitutional impediment preventing the applicant from
filing is removed; the date on which the constitutional right
asserted was recognized by the U.S. Supreme Court and made
retroactive on collateral review; and the date on which the
factual predicate for the claim could have been discovered
with due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D). The
period is also tolled for the time during which a properly