United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
Rodriguez, a Florida prisoner, filed, through counsel, a
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254 (hereinafter "petition") on October 24, 2016,
in which he challenges convictions for five counts of DUI
manslaughter and five counts of reckless driving, lesser of
vehicular homicide, entered in 2005 in Polk County, Florida
(Doc. 1). Respondent moves to dismiss the petition as
time-barred (Doc. 10), which Mr. Rodriguez opposes (Doc. 13).
As discussed below, the petition is timely.
Anti-Terrorism and Effective Death Penalty Act ("AEDP
A") created a limitation period for petitions for writ
of habeas corpus filed pursuant to 28 U.S.C. §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... 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).
parties agree that Mr. Rodriguez's judgment of conviction
became final on January 23, 2007, ninety (90) days after the
appellate court affirmed his convictions on October 25, 2006
(Respondent's Ex. 7). See Bond v. Moore, 309
F.3d 770. (11th Cir. 2002) (finding that the AEDPA limitation
period did not begin to run until the 90-day window during
which [the § 2254 petitioner] could have petitioned the
United States Supreme Court for a writ of certiorari
expired). The AEDPA limitation period started, and sixty-four
(64) days of the period elapsed before it was tolled on March
28, 2007, when Mr. Rodriguez filed his motion for post
conviction relief under Rule 3.850, Fla.R.Crim.P.
(Respondent's Ex. 9). The limitation period remained
tolled until the state appellate court issued its mandate
affirming the denial of the Rule 3.850motion on January 28,
2016. See Woulard v. Sec'y, Dep't of Corr.,
707 F.App'x 631, 633 (11th Cir. 2017) ("In Florida,
a state post-conviction motion is pending until the
appropriate appellate court issues the mandate for its order
affirming a state trial court's denial of the
motion."); Lawrence v. Florida, 549 U.S. 327,
331-32 (2007) (AEDPA clock resumed running when state
appellate court's mandate issued disposing of the motion
for post-conviction relief). Another two hundred seventy (270)
days of the limitation period elapsed before Mr. Rodriguez
filed his federal habeas petition on October 24, 2016.
Therefore, a total of only three hundred thirty-four (334)
days of the limitation period elapsed before Mr.
filed his federal habeas petition. Accordingly, the petition
therefore ORDERED that:
Respondent's motion to dismiss (Doc. 10) is
later than November 29, 2019, Respondent must file a
supplemental response addressing the grounds alleged in the
petition. Mr. Rodriguez has thirty (30) days from the date
the supplemental response is filed to reply.
action is ADMINISTRATIVELY CLOSED. The
Clerk must re-open this action when briefing
In concluding that the petition
is untimely, Respondent incorrectly included the time between
the dates on which the state circuit court denied the Rule
3.850 motion (initially then after remand) and the dates
Petitioner filed his notices of appeal (see Doc. 10, p. 7).
See Evans v. Chavis,546 U.S. 189, 141 (2006)
("The time that an application for state postconviction
review is 'pending' includes the period between (1) a
lower court's adverse determination, and (2) the
prisoner's filing of a notice of appeal, provided that