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Garcia v. Secretary, Department of Corrections

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

August 13, 2019

ROY GARCIA, JR., Petitioner,



         Pending before the Court is Petitioner Roy Garcia Jr.'s (“Petitioner”) petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 constructively filed on March 2, 2017.[1] (Doc. #1, “Petition”). Petitioner is confined within the Florida Department of Corrections and challenges his October 5, 2009 sentence and conviction, after jury trial, entered by the Twentieth Judicial Circuit Court in Lee County, Florida in case number 06-CF-19080. (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. #12). Respondent filed a Limited Response (Doc. #16) 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 to the Limited Response despite being afforded an opportunity to do so. (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 October 6, 2006, the State charged Petitioner in a six-count information with: Second Degree Murder (Count 1); Armed Robbery (Count 2); Attempted Second Degree Murder (Count 3); Aggravated Assault on a Law Enforcement Officer (Count 4); Aggravated Assault on a Law Enforcement Officer (Count 5); and Wanton Fleeing and Eluding (Count 6). (Ex. 1 at 10-14).[2] After a jury trial, Petitioner was found guilty as charged on all counts; and, on October 5, 2009 was sentenced to mandatory life in prison, all counts to run concurrent. (Ex. 1 at 291-307). On April 27, 2011, the Second District Court of Appeal affirmed Petitioner's conviction and sentence. (Ex. 6). Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.

         Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 on February 24, 2012; and, after being directed by the postconviction court, an amended Rule 3.850 motion for postconviction relief on May 10, 2012. (Ex. 7 at 1-18; Ex. 8 at 1-13). The postconviction court granted an evidentiary hearing on several grounds, (Ex. 9 at 5-8), and entered a final order denying all relief on April 21, 2014. (Ex. 11 at 1-8). Petitioner improperly filed a notice of appeal with the state postconviction court on May 21, 2014. (Ex. 12 at 10). Thereafter, on October 20, 2014, Petitioner filed a petition for belated appeal with the state appellate court. (Ex. 14 at 1-6). After a commissioner's hearing, the state appellate court granted Petitioner's petition for belated appeal on July 6, 2015. (Ex. 15 at 10. The state appellate court per curiam affirmed the denial of Petitioner's amended Rule 3.850 motion (Ex. 19), and mandate issued on January 19, 2017 in case no. 2D15-3101. (Ex. 20 at 1). As noted, Petitioner constructively filed his Petition in this Court on March 2, 2017.

         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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