United States District Court, N.D. Florida, Pensacola Division
DAVID L. NICKELSON, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
October 26, 2018, Petitioner David L. Nickelson, a state
inmate proceeding pro se, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On July
17, 2019, Respondent filed a motion to dismiss the petition
as untimely, with exhibits. ECF No. 14. Petitioner has filed
“Objections to Respondent's Motion to Dismiss,
” considered as a reply. ECF No. 16.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration, the undersigned has
determined no evidentiary hearing is required for the
disposition of this matter. See Rule 8(a), R. Gov.
§ 2254 Cases. The pleadings and attachments before the
Court show the petition is untimely and should be dismissed.
See Rule 4, R. Gov. § 2254 Cases (authorizing
dismissal “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief” in federal court).
David L. Nickelson indicates he challenges his conviction
entered April 4, 2014, by the First Judicial Circuit,
Escambia County, Florida, following a jury trial in case
number 2013-CF-4646. ECF No. 1 at 1-2. The jury found
Nickelson guilty of arson and aggravated battery with great
bodily harm, as charged, in connection with events that
occurred on or about September 6, 2013. See Ex. 2 at
4 (Amended Information), 37 (Verdict). On May 20, 2014,
the trial court adjudicated him guilty and sentenced him to
fifteen (15) years in prison, followed by ten (10) years of
probation on the arson count, with a consecutive sentences of
five (5) years in prison on the other count. Id. at
appealed his judgment and sentence to the First District
Court of Appeal (First DCA), assigned case number 1D14-2581.
See Ex. 4 (Initial Brief), 5 (Answer Brief). On
October 9, 2014, the First DCA per curiam affirmed the appeal
without a written opinion. Ex. 6; Nickelson v.
State, 149 So.3d 6 (Fla. 1st DCA 2014) (table).
December 11, 2015, Nickelson filed a motion for
postconviction relief in the state trial court, pursuant to
Florida Rule of Criminal Procedure 3.850. Ex. 17 at 7-12. By
order rendered March 8, 2016, the state court struck the
motion as facially and/or legally insufficient, and the court
granted Nickelson sixty (60) days leave to file an amended
motion. Id. at 14-17. Nickelson filed a motion
requesting an extension of sixty (60) days to file the
amended motion. Id. at 18-19. By order rendered May
25, 2016, the state court denied Nickelson's motion for
extension of time. Id. at 20-21.
about June 21, 2016, Nickelson filed another Rule 3.850
motion. Ex. 17 at 26-32. In an order rendered June 30, 2016,
the state court summarily denied the motion for
postconviction relief, finding the motion untimely and, even
if considered as timely, facially insufficient as it did not
satisfy the oath requirement. Ex. 17 at 33-35. The court
further found “[t]he one claim that could possibly be
considered facially sufficient, that his counsel was
ineffective for proceeding to trial without Defendant's
consent, is refuted by the record.” Id. at 34.
filed a petition in the First DCA, assigned case number
1D17-0213, seeking a belated appeal from the denial of
postconviction relief. See Ex. 14 at 55. In an
opinion filed June 9, 2017, the First DCA granted the
petition. Id.; Nickelson v. State, 227
So.3d 572 (Fla. 1st DCA 2017). On May 9, 2018, the First DCA
per curiam affirmed the belated appeal without a written
opinion in case number 1D17-3024. Ex. 18; Nickelson v.
State, 246 So.3d 274 (Fla. 1st DCA 2018) (table). The
mandate issued June 6, 2018. Ex. 19.
indicated above, on October 26, 2018, Nickelson filed this
§ 2254 petition. ECF No. 1. On July 17, 2019, Respondent
filed a motion to dismiss the petition as untimely, with
exhibits. ECF No. 14. Petitioner has filed a reply. ECF No.
the AEDPA, there is a one-year limitations period for filing
a § 2254 petition. 28 U.S.C. § 2244(d)(1). The
period generally 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, ”
though there are later commencement dates. Id.
§ 2244(d)(1)(A). The limitations period is tolled for
the time during which a “properly filed”
application for relief is pending in state court.
Id. § 2244(d)(2). The time may be equitably
tolled, but “only if a petitioner establishes
both extraordinary circumstances and due
diligence.” Diaz v. Sec'y for Dep't of
Corr., 362 F.3d 698, 702 (11th Cir. 2004).
case, as Respondent explains, the state trial court entered
Nickelson's judgment of conviction and sentence on May
20, 2014. Ex. 2 at 81-89. Nickelson filed a direct appeal
and, on October 9, 2014, the First DCA affirmed his case per
curiam without a written opinion in case number 1D14-2581.
Ex. 6; Nickelson v. State, 149 So.3d 6 (Fla. 1st DCA
2014) (table). Pursuant to U.S. Supreme Court Rule 13.3,
Nickelson then had ninety (90) days to seek certiorari review
in the U.S. Supreme Court, which he did not do. Accordingly,
his conviction and sentence became final for federal habeas
purposes on January 7, 2015. See 28 U.S.C. §
2244(d)(1)(A); see also, e.g., Nix v. Sec'y
for Dep't of Corr., 393 F.3d 1235, 1236-37 (11th
Cir. 2004); Kaufman v. United States, 282 F.3d 1336,
1338 (11th Cir. 2002). He thus had one year thereafter, or
until January 7, 2016, to file his federal habeas petition,
absent tolling activity. See, e.g., Downs v.
McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)
(calculating limitations period according to
“anniversary method”); Ferreira v. Sec'y,
Dep't of Corr., 494 F.3d 1286, 1289 n.1 (11th Cir.
2007) (applying anniversary date analysis).
filed a Rule 3.800(a) motion in state court on December 11,
2015, which stopped the one-year AEDPA clock at 338 days.
See Ex. 17 at 7-12. Assuming all the time between
December 11, 2015, and June 6, 2018, when the First DCA
issued the mandate in the belated appeal from the denial of
postconviction relief, is tolled, then the AEDPA clock
restarted June 6, 2018, and expired 27 days later, on July 3,
2018. Ex. 19; see, e.g., Tinker v. Moore,
255 F.3d 1331, 1335 n.4 (11th Cir. 2001), cert.
denied, 534 U.S. 1144 (2002) (“We remind
petitioners that a properly and timely filed petition in
state court only tolls the time ...