United States District Court, N.D. Florida, Gainesville Division
COURTNEY J. PRESTON, Petitioner,
Sec'y, FLA. Dep't. OF CORR., Respondent.
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE.
initiated this case by filing a Petition for a writ of habeas
corpus under 28 U.S.C. § 2254, challenging his 2012
conviction in Alachua County for first-degree murder and
armed home-invasion robbery, which he later amended. ECF Nos.
1, 7. Respondent filed a Motion to Dismiss and Incorporated
Memorandum of Law along with relevant portions of the
state-court record, seeking to dismiss the Petition as
untimely. ECF No. 21. Petitioner filed a Response. ECF No.
23. The Motion is therefore ripe for review.
February 24, 2012, Petitioner was convicted in Alachua
County, Florida, of first-degree murder and armed home
invasion robbery and sentenced to life imprisonment. ECF No.
21-1. Petitioner appealed, and the Florida First District
Court of Appeal (DCA) affirmed his judgment and sentence in a
per curiam decision entered on August 30, 2013.
Preston v. State, 119 So.3d 1252 (Fla. 1st DCA Aug.
September 6, 2014, Petitioner submitted a petition for writ
of habeas corpus to prison officials at Hamilton CI for
mailing alleging ineffective assistance of appellate counsel
pursuant to Fla. R. App. P. 9.141(d). ECF No. 21-2 at 1. The
Florida First DCA denied the petition on the merits in a
per curiam decision entered on April 8, 2015. ECF
No. 21-2 at 16. Petitioner then filed a “Motion for
Rehearing/Written Opinion/Clarification, ” which the
First DCA denied on May 15, 2015. Id. at 21;
Preston v. State, 163 So.3d 572 (Fla. 1st DCA May
12, 2015, Petitioner submitted a motion for postconviction
relief pursuant to Fla. R. Crim. P. 3.850 to prison officials
at Century CI for mailing. ECF No. 21-3 at 10. The Florida
First DCA affirmed the denial of the Motion in a per
curiam decision entered on January 31, 2018 and issued
its mandate on February 28, 2018. ECF No. 21-4 at 2;
Preston v. State, 241 So.3d 84 (Fla. 1st DCA Jan.
April 12, 2018, Petitioner submitted his federal Petition for
writ of habeas corpus to prison officials at Hardee CI for
mailing. ECF No. 1 at 1. The Petition was deficient, however,
because Petitioner did not file the petition on the form
utilized by this Court. Accordingly, the Court ordered
Petitioner to file an amended petition on the appropriate
form. ECF No. 4. Petitioner submitted his Amended Petition to
prison officials at DeSoto CI for mailing on May 17, 2018.
ECF No. 7 at 21.
One-Year Limitation Period
filed after April 24, 1996, are governed by 28 U.S.C. §
2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Penry v.
Johnson, 532 U.S. 782, 792 (2001). The AEDPA created a
limitations period for petitions for writ of habeas corpus
brought pursuant to § 2254:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the