United States District Court, M.D. Florida, Tampa Division
S. SORIVEN UNITED STATES DISTRICT JUDGE
petitions for the writ of habeas corpus under 28 U.S.C.
§ 2254. (Doc. 1) He challenges his state convictions for
aggravated assault with a firearm and possession of a firearm
by a person under 24 years previously found delinquent, for
which he is imprisoned for 25 years. Respondent moves to
dismiss the petition as time-barred. (Doc. 14) Randall did
not reply. Upon consideration, and in accordance with the
Rules Governing Section 2254 Cases in the United States
District Courts, it is ORDERED that
Randall's petition is DISMISSED as time-barred:
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs this proceeding. Carroll v.
Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009).
AEDPA provides a one-year limitations period for filing a
§ 2254 habeas petition. This period begins running on
the later of “the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). It is tolled for the time that a
“properly filed application for State post-conviction
or other collateral review” is pending in state court.
28 U.S.C. § 2244(d)(2).
earlier Order explained why Randall's petition is
untimely under the AEDPA limitations period (Doc. 8 at 2-3)
Randall's direct appeal concluded on August 3, 2012, in
2D10-2693. The conviction became final after ninety days, the
time allowed for petitioning for the writ of
certiorari. 28 U.S.C. § 2244(d)(1)(A). See
Bond v. Moore, 309 F.3d 770 (11th Cir. 2002), and
Jackson v. Sec'y, Dep't Corr., 292 F.3d 1347
(11th Cir. 2002). As a consequence, Randall's conviction
became final on November 1, 2012, and the limitation would
have expired one year later on November 1, 2013, absent
tolling for a state post-conviction proceeding.
Randall allowed 242 days to elapse before he filed a state
motion to correct sentence on July 2, 2013.Tolling continued
until August 31, 2013, when the motion was denied and the
time to appeal passed. Randall allowed another 64 days to
elapse before he filed a state Rule 3.850 motion for
post-conviction relief on November 4, 2013. The limitation
again continued when the mandate issued on November 7, 2016,
with the affirmance of the denial of his Rule 3.850 motion.
Randall had 59 days remaining of the one-year limitation.
(365 - 242 - 64 = 59 days) Consequently, Randall's
federal one-year deadline was January 5, 2017 (November 7,
2016 59 days = January 5, 2017). Randall dated his federal
petition January 19, 2017.
filed subsequent collateral motions in state court on March
13, 2018, and December 26, 2018. (Doc. 15-3 Exs. 19, 22)
These motions, filed after the expiration of the AEDPA
limitations period, do not afford Randall statutory tolling.
See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.
2000) (“A state-court petition . . . that is filed
following the expiration of the limitations period cannot
toll that period because there is no period remaining to be
the Court concludes that the petition is untimely under
§ 2244(d)(1)(A). Randall does not allege entitlement to
equitable tolling. See Holland v. Florida, 560 U.S.
631 (2010). Nor does Randall contend that new evidence
establishes his actual innocence to permit consideration of
his untimely petition. See McQuiggin v. Perkins, 569
U.S. 383 (2013).
the petition for the writ of habeas corpus (Doc. 1) is
DISMISSED AS TIME-BARRED. The Clerk is
directed to enter judgment against Randall and to
CLOSE this case.
Clerk is further directed to CORRECT the
docket to show that Randall is currently incarcerated at
Santa Rosa Correctional Institution, using the address
provided in the Response's certificate of service. (Doc.
14 at 26)
OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
IS FURTHER ORDERED that Randall is not entitled to a
certificate of appealability. A prisoner seeking a writ of
habeas corpus has no absolute entitlement to appeal a
district court's denial of his petition. 28 U.S.C. §
2253(c)(1). Rather, a court must first issue a certificate of
appealability. Section 2253(c)(2) limits the issuing of a
certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” To merit a certificate of appealability,
Randall must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and
(2) the procedural issues he seeks to raise. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
478 (2000); Eagle v. Linahan, 279 F.3d 926, 935
(11th Cir. 2001). Because the petition is clearly time-barred
and he fails to show that reasonable jurists would debate
timeliness, Randall is not entitled to a certificate of
appealability and he is not entitled to appeal in forma
a certificate of appealability is DENIED.
Leave to appeal in forma pauperis is DENIED.
Randall must obtain permission from the circuit court to
appeal in forma pauperis.