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Baity v. Inch

United States District Court, N.D. Florida, Tallahassee Division

July 29, 2019

CHRISTOPHER BAITY, Petitioner,
v.
MARK S. INCH, Secretary, Florida Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION TO DENY MOTION TO DISMISS AMENDED § 2254 PETITION AS UNTIMELY

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE

         On 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.[1] 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.

         The 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.

         Procedural History

          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.[2] 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.

         Petitioner 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.

         Petitioner appealed to the First District Court of Appeal where a counseled Anders brief was filed in case number 1D11-4286.[3] 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.

         On May 9, 2014, Petitioner filed a pro se motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 alleging three claims.[4] 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 at 105.

         Petitioner 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 postconviction proceeding.

         Petitioner 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).

         On 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.

         Analysis

         Under 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).

         The 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 ...


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