United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
about January 22, 2019, Petitioner John Julius Johnson, a
state inmate proceeding pro se, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1.
He filed an amended § 2254 petition on April 24, 2019.
ECF No. 6. On June 17, 2019, Respondent filed a motion to
dismiss the petition, with exhibits. ECF No. 11. Petitioner
has not filed a reply, although he was given the opportunity
to do so. See ECF No. 10.
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 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).
John Julius Johnson indicates he challenges his conviction
and sentence entered November 27, 2007, by the First Judicial
Circuit, Santa Rosa County, Florida, following a jury trial
in case number 2006-CF-1581. ECF No. 6 at 3; Ex.
49-53. In particular, the jury found Johnson
guilty of aggravated battery, contrary to section 794.011(3),
Florida Statutes, as charged, in connection with events that
occurred October 12, 2006. Ex. A at 20, 43; Ex. E at 209-11.
The trial court adjudicated him guilty and sentenced him to
fifteen (15) years in prison. Ex. A at 49-53; Ex. E at 216.
appealed his conviction and sentence to the First District
Court of Appeal (First DCA), assigned case number 1D07-6572.
Ex. G. Johnson's counsel filed an initial brief pursuant
to Anders v. California, 386 U.S. 738 (1967),
asserting no issues of arguable merit existed. Ex. G. The
court granted Johnson leave to file a pro se brief. Ex. H.
Johnson hired a new attorney, who filed an amended brief
raising three points. Ex. I. The State filed an answer brief.
Ex. J. On November 20, 2009, the First DCA per curiam
affirmed the appeal without a written opinion. Ex. L;
Johnson v. State, 22 So.3d 542 (Fla. 1st DCA 2009).
December 13, 2011, through counsel, Johnson filed a motion
for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850. Ex. M at 2-25. By orders dated
January 11, 2012, the state post-conviction court struck the
motion as “facially and/or legally insufficient,
” and granted forty-five (45) days' leave to amend.
Id. at 26-33. On March 9, 2019, Johnson's
counsel filed an amended Rule 3.850 motion. Id. at
66-93. By order rendered November 5, 2012, the court
summarily denied post-conviction relief. Id. at
94-107 (exclusive of attachments).
through counsel, filed a notice of appeal from the order
denying postconviction relief. Id. at 233-34.
Thereafter, Johnson's counsel withdrew from
representation of Johnson. Id. at 235-36. On
February 8, 2013, the First DCA per curiam affirmed the
appeal, assigned case number 1D12-5529, without a written
opinion. Ex. N; Johnson v. State, 108 So.3d 1083
(Fla. 1st DCA 2013). The mandate issued March 13, 2013. Ex.
indicated above, Johnson filed his § 2254 petition on or
about January 22, 2019. ECF No. 1. He filed an amended §
2254 petition on April 24, 2019. ECF No. 6. Respondent has
filed a motion to dismiss the petition, with exhibits. ECF
No. 11. Petitioner has not filed a reply, although he was
given the opportunity to do so. See ECF No. 10.
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
Johnson's judgment of conviction and sentence on November
27, 2007. Ex. A at 49-53. Johnson filed a direct appeal and,
on November 20, 2009, the First DCA affirmed his case per
curiam without a written opinion. Ex. L; Johnson v.
State, 22 So.3d 542 (Fla. 1st DCA 2009) (table).
Pursuant to U.S. Supreme Court Rule 13.3, Johnson 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 February 18, 2010. 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). Johnson had one year thereafter, or
until February 18, 2011, 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)
did not file anything until December 13, 2011, when he filed
his Rule 3.850 motion in state court, 298 days after his
AEDPA time expired. Ex. M at 2-25. At this point, because his
AEDPA time had already expired, anything he filed therefore
could not toll the AEDPA one-year period. 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 remaining within the
federal limitation period.”); Webster v.
Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)
(“Under § 2244(d)(2), even ‘properly
filed' state-court petitions must be ‘pending'
in order to toll the limitations period. A state-court
petition . . . that is filed following the expiration ...