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Allen v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

September 19, 2019

DEMETRIUS ANTONIO ALLEN, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

         Mr. Allen, a Florida inmate, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Respondent moves to dismiss the petition as time-barred (Dkt. 8), and Mr. Allen opposes the motion (Dkt. 9). Upon consideration, the motion to dismiss will be granted.

         Procedural Background

         On May 12, 2015, Mr. Allen pleaded no contest to burglary of a dwelling and aggravated assault with a deadly weapon. Dkt. 8-2 at 12-14. He was sentenced that same day to 15 years in prison on the burglary conviction, and to a concurrent term of 5 years on the aggravated assault conviction. Id. at 16-26.

         On May 29, 2015, he filed a motion for reconsideration of his sentence. Id. at 39-40. The motion was denied on June 11, 2015. Id. at 42-43.

         On June 5, 2016, Mr. Allen filed a Petition Seeking Belated Appeal of his convictions and sentences. Id. at 45-50. The petition was denied on August 30, 2016. Id. at 52.

         On May 23, 2017, Mr. Allen filed a motion for post-conviction relief pursuant to Florida Rules of Criminal Procedure, Rule 3.850. Id. at 54-72. The motion was dismissed on June 26, 2017, and Mr. Allen filed another Rule 3.850 motion on July 12, 2017. Id. at 79, 82-92. That motion was denied on May 16, 2018. Id. at 94-102. The denial of the motion was affirmed on appeal on September 11, 2018. Id. at 253. Mr. Allen's Motion for Rehearing and Request for a Written Opinion was denied on October 11, 2018. Id. at 255-58, 261. The appellate court mandate issued on October 30, 2018. Id. at 263. Mr. Allen filed his federal habeas petition in this court on November 26, 2018. Dkt. 1.

         Discussion

         Respondent moves to dismiss the petition as time-barred under 28 U.S.C. §2244(d), arguing that more than one year passed after Mr. Allen's judgment became final.

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one year statute of limitations in which a state prisoner may file a federal habeas petition. 28 U.S.C. § 2244(d)(1); Lawrence v. Florida, 549 U.S. 327, 331 (2007). The limitation period 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. . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).

         In state court, Mr. Allen did not pursue a timely notice of appeal of his May 12, 2015 convictions or sentences. Accordingly, his judgment of conviction became final on June 11, 2015, at the expiration of the time for seeking direct review. See McGee v. State, 684 So.2d 241 (Fla. 2d DC A 1996) (treating judgment and sentence upon entry of plea as final when time for appeal expired); Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988) (holding that when a defendant does not appeal his conviction or sentence, the judgment and sentence become final when the 30-day time period for filing an appeal expires).[1]

         Three hundred fifty-eight days (358) elapsed before Mr. Allen filed his petition for a belated appeal of his convictions and sentences on June 5, 2016. The petition, which was denied, did not toll the AEDPA's limitations period because it is not an "application for State post-conviction or other collateral review with respect to the pertinent judgment" for purposes of 28 U.S.C. § 2244(d)(2). See Espinosa v. Sec'y, Dep't of Corr., 804 F.3d 1137 (11th Cir. 2015). Accordingly, the AEDPA's limitations period expired seven days later on June 13, 2016.[2] And none of Mr. Allen's subsequently filed post-conviction motions tolled the AEDPA's limitations period because it expired before he filed those motions. See Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) ("[Rule 3.850 motion] filed after expiration of the limitations period[,] does not relate back so as to toll idle periods preceding the filing of the federal [habeas] petition"); Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (holding that where a Rule 3.850 motion is filed after the expiration of the federal limitations period, it does not toll the period under § 2244(d)(2) because no period remains to be tolled). Accordingly, his petition is time-barred unless he can demonstrate the applicability of equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010).

         Mr. Allen contends that he is entitled to equitable tolling of the limitations period. Dkt. 9. Section 2244(d) "permits equitable tolling 'when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable with diligence.'" Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam)); Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006) (noting that petitioner must show both extraordinary circumstances and diligence). Equitable tolling applies, however, only in truly extraordinary circumstances, Jones v. United States, 304 F.3d 1035, 1039-1040 (11th Cir. 2002), and where the litigant satisfies his burden of showing that he has been pursuing his rights diligently and that some extraordinary circumstance "stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. at 649 (internal quotation marks omitted).

         Mr. Allen has not satisfied his burden of showing circumstances justifying equitable tolling. He makes no showing of extraordinary circumstances which prevented ...


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