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Stephens v. Secretary, Department of Corrections

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

October 4, 2019

JAMES STEPHENS, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, and FLORIDA ATTORNEY GENERAL, Respondents.

          ORDER

          WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE

         Petitioner, a Florida prisoner, instituted this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). At the Court's direction, Respondents responded to the petition and filed relevant portions of the state court record. (Docs. 14, 15). Petitioner did not file a reply. The Court has reviewed the entire record. Because the Court may resolve the petition on the basis of the record, an evidentiary hearing is not warranted. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 8(a). Upon consideration, the Court concludes that the petition is due to be dismissed as untimely.

         I. BACKGROUND

         Petitioner was charged with possession of cocaine with intent to sell or deliver (Count 1), driving while license suspended (Count 2), and possession of drug paraphernalia (Count 3). (Doc. 15-1 at 6-7). On July 9, 2013, Petitioner entered an open plea to the charges as filed. (Doc. 15-1 at 11-13). On August 14, 2013, Petitioner was sentenced to ten years incarceration on Count 2 as a habitual felony offender, a consecutive five years drug offender probation on Count 1, and time served on Count 3. (Doc. 15-1 at 15). Petitioner appealed. On March 11, 2014, the Fifth District Court of Appeal of Florida ("Fifth DCA") per curiam affirmed. (Doc. 15-1 at 46); Stephens v. State, 134 So.3d 476 (Fla. 5th DCA 2014) (Table). Mandate issued on April 4, 2014. (Doc. 15-1 at 48).

         Petitioner first moved for postconviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure on April 1, 2014. (Doc. 15-1 at 213-224). The state court dismissed the motion without prejudice because the motion was filed during the pendency of his direct appeal. (Doc. 15-1 at 226-27).

         On April 13, 2014, Petitioner filed his second Rule 3.850 motion, alleging newly discovered evidence and ineffective assistance of counsel. (Doc. 15-1 at 50-63). On July 16, 2014, the state court held an evidentiary hearing. (Doc. 15-1 at 65-106). On July 18, 2014, the state court entered an order denying the motion. (Doc. 15-1 at 108-11). Petitioner appealed, and the Fifth DCA affirmed per curiam. (Doc. 15-1 at 115). Mandate issued on April 10, 2015. (Doc. 15-1 at 117).

         On September 18, 2014, Petitioner filed a motion to correct sentence under Rule 3.800(a), Florida Rules of Criminal Procedure, claiming that he could not be sentenced as a habitual felony offender for the offense of driving while license suspended. (Doc. 15-1 at 229-33). The state court summarily denied the motion on October 1, 2014. (Doc. 15-1 at 235-36). Petitioner did not appeal.

         On March 10, 2015, Petitioner filed a second motion to correct sentence, arguing that his sentence was illegal because his conviction for driving while license suspended should have been a misdemeanor. (Doc. 15-1 at 238-42). The state court denied the motion on March 24, 2015, finding that the claim was not cognizable under Rule 3.800(a). (Doc. 15-1 at 244-46). Petitioner did not appeal.

         On April 9, 2015, Petitioner filed his third Rule 3.850 motion, alleging a Brady[1]violation based on his scoresheet. (Doc. 15-1 at 119-33). On April 14, 2015, the state court denied the motion. (Doc. 15-1 at 135-37). Petitioner appealed and the Fifth DCA ordered a response from the State. (Doc. 15-1 at 311, 313-20). The Fifth DCA affirmed per curiam. (Doc. 15-1 at 142). Mandate issued March 18, 2016. (Doc. 15-1 at 144).

         On July 30, 2015, Petitioner filed his fourth Rule 3.850 motion, alleging four grounds of ineffective assistance of counsel. (Doc. 15-1 at 248-63). On August 12, 2015, the state court dismissed the motion as procedurally barred. (Doc. 15-1 at 265-75). Petitioner did not appeal.

         On August 27, 2015, Petitioner filed a Motion to Withdraw Plea. (Doc. 15-1 at 277-82). On September 10, 2015, the state court denied the motion as untimely filed. (Doc. 15-1 at 284-86). Petitioner did not appeal.

         On October 12, 2016, Petitioner filed his fifth Rule 3.850 motion, alleging the court erred by failing to grant a motion to suppress resulting in a manifest injustice. (Doc. 15-1 at 146-57). On December 2, 2016, the state court dismissed the motion as procedurally barred. (Doc. 15-1 at 159-61). Petitioner did not appeal.

         On December 13, 2016, Petitioner filed his sixth Rule 3.850 motion, again alleging the court erred by failing to grant a motion to suppress resulting in manifest injustice. (Doc. 15-1 at 163-77). On March 20, 2017, the state court denied the motion finding that Petitioner failed to allege newly discovered evidence and that a claim of trial court error is not cognizable in a collateral attack on the sentence. (Doc. 15-1 at 195-97). On April 2, 2017, Petitioner filed a motion for rehearing (Doc. 15-1 at 203-08) and the state court denied it (Doc. 15-1 at 210-11). Petitioner appealed and the Fifth DCA affirmed per curiam. (Doc. 15-1 at 322); Stephens v. State, 227 So.3d 600 (Fla. 5th DCA 2017) (Table). Mandate issued on July 14, 2017. (Doc. 15-1 at 324).

         On March 13, 2017, Petitioner filed his seventh Rule 3.850 motion, alleging ineffective assistance of counsel. (Doc. 15-1 at 179-93). On March 20, 2017, the state court denied the motion as untimely and ...


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