United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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).
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).
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. 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).
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).
Allen has not satisfied his burden of showing circumstances
justifying equitable tolling. He makes no showing of
extraordinary circumstances which prevented ...