CHARLES J. KAHN, Jr., Magistrate Judge.
Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 13). Respondent moves to dismiss the petition as time-barred, providing relevant portions of the state court record. (Doc. 55). Petitioner opposes dismissal. (Doc. 77). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that the petition is untimely and should be dismissed.
On December 6, 2007, petitioner was charged by Information filed in the Circuit Court for Bay County, Florida, Case No. 07-CF-3014, with driving under the influence manslaughter ("DUI manslaughter") (Count I), driving while license suspended or revoked (Count II) and possession of marijuana (Count III). (Doc. 55, Ex. A, p. 44).
On April 28, 2010, petitioner filed a pro se petition for writ of habeas in the Florida First District Court of Appeal ("First DCA"), alleging ineffective assistance of appellate counsel. (Ex. M). The First DCA denied the petition on June 2, 2010. Hopkins v. State, 37 So.3d 375 (Fla. 1st DCA 2010) (Table) (Case No. 1D10-2342) (copy at Ex. N). Petitioner filed a motion for rehearing on June 10, 2010, which was denied on July 6, 2010. (Exs. K, L).
On August 26, 2010, petitioner filed a pro se motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Ex. O, pp. 1-4). The state circuit court denied the motion. (Id., pp. 5-11). The First DCA summarily affirmed on March 9, 2011, per curiam and without a written opinion. Hopkins v. State, 56 So.3d 770 (Fla. 1st DCA 2011) (Table) (Case No. 1D10-6225) (copy at Ex. P). The mandate issued April 5, 2011. (Ex. Q).
While petitioner's Rule 3.800 proceeding was pending, on October 26, 2010, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. R). On November 29, 2010, the state circuit court struck the motion as facially insufficient with leave to amend within thirty days. (Ex. S). Petitioner filed an amended motion on December 20, 2010. (Ex. T). The state circuit court struck the amended motion as facially insufficient, providing petitioner another opportunity to amend. (Ex. U). On February 21, 2011, petitioner filed a second amended Rule 3.850 motion. (Ex. V, pp. 1-33). The state circuit court denied relief without an evidentiary hearing on August 31, 2011. (Ex. V, pp. 73-134). The First DCA summarily affirmed on June 26, 2012, per curiam and without a written opinion. Hopkins v. State, 94 So.3d 586 (Fla. 1st DCA 2012) (Table) (Case No. 1D11-5222) (copy at Ex. AA). The mandate issued August 27, 2012. (Ex. DD).
Petitioner filed his original federal habeas petition in this court on December 17, 2012 (doc. 1), which he later amended (doc. 13). Respondent asserts the petition is untimely and must be dismissed. (Doc. 55). Petitioner opposes dismissal. (Doc. 77).
Because petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA governs this petition. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L. Ed. 2d 481 (1997). The AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitation period runs from the latest of:
§ 2244(d)(1). The limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2).
Petitioner has not asserted that a State-created impediment to his filing a federal habeas petition existed, that he bases his claims on a right newly recognized by the United States Supreme Court, or that the facts supporting his claims could not have been discovered through the exercise of due diligence before his conviction became final. Accordingly, the statute of limitations is measured from the remaining trigger, which is the date on which petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1).
The First DCA denied petitioner's motion for rehearing on direct appeal on April 29, 2009. Petitioner did not seek review of his conviction in the United States Supreme Court. Accordingly, petitioner's conviction became "final" for purposes of § 2244 on July 28, 2009, when the ninety-day period for seeking certiorari from the Supreme Court expired.
Once his conviction became final, petitioner allowed 273 days of the limitations period to lapse before filing his state habeas petition on April 28, 2010. The parties do not dispute that petitioner's state habeas proceeding was pending, and statutorily tolled the limitations period, until July 6, 2010, when petitioner's motion for rehearing was denied.
The limitations period began running once more on July 7, 2010, and ran for 50 days until petitioner filed his Rule 3.800(a) motion on August 26, 2010. Petitioner's Rule 3.800(a) motion was pending, and statutorily tolled the limitations period, from August 26, 2010 (the date it was filed), until April 5, 2011 (the date the First DCA issued the mandate on appeal). See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (recognizing that a "properly filed" postconviction motion is "pending" under Florida procedure — and consequently tolls the limitations period — until the appellate court's issuance of the mandate on appeal).
While petitioner's Rule 3.800(a) motion was pending, petitioner filed his Rule 3.850 motion on October 26, 2010. The parties do not dispute that petitioner's Rule 3.850 motion remained pending, and statutorily tolled the limitations period, until August 27, 2012 (the date the First DCA issued the mandate on appeal).
The federal habeas limitations period began to run once more on August 28, 2012, and expired 42 days later on October 8, 2012. Petitioner's original federal habeas petition was not filed until December 17, 2012, and is untimely. Petitioner argues he is entitled to equitable tolling due to various health issues that began in 2009. (Doc. 77).
A federal habeas petitioner is entitled to equitable tolling "only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing" of his federal habeas petition. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010) (internal quotation marks omitted); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam) (holding that equitable tolling is available "when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence"). "Equitable tolling is an extraordinary remedy which is typically applied sparingly." Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). "The burden of proving circumstances that justify the application of the equitable tolling doctrine rests squarely on the petitioner." San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011) (citing Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002)). The petitioner must allege more than conclusory allegations, San Martin, 633 F.3d at 1268, and must "show a causal connection between the alleged extraordinary circumstances and the late filing of the federal habeas petition." Id. at 1267. "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653 (internal citation and quotation marks omitted); see Smith v. Comm'r, Ala. Dep't of Corr., 730 F.3d 1266, 1271 (11th Cir. 2012) (acknowledging that petitioners are not required "to exhaust every imaginable option, but rather to make reasonable efforts" (internal quotation marks omitted)). Decisions regarding equitable tolling "must be made `on a case-by-case basis' in light of `specific circumstances, often hard to predict in advance,' although [courts] `can and do draw upon decisions made in other similar cases for guidance.'" Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir. 2012) (quoting Holland, 560 U.S. at 649).
Only three time periods could possibly be subject to equitable tolling: (1) the 273 days between July 29, 2009, and April 27, 2010; (2) the 50 days between July 7, 2010, and August 25, 2010; and (3) the 111 days between August 28, 2012, and December 17, 2012. These are the only time periods the statute of limitations was running and not statutorily tolled. Before addressing the substance of petitioner's equitable tolling argument, the undersigned provides the following procedural history concerning this claim.
Respondent's motion to dismiss is a "renewed" motion. (Doc. 55). Respondent first moved to dismiss this proceeding as time-barred on December 4, 2013. (Doc. 24). In a response dated January 22, 2014, petitioner asserted he was entitled to equitable tolling based on three circumstances. First, petitioner asserted he was entitled to equitable tolling for an unspecified period during late 2011, due to not having his legal work with him during a temporary medical stay at the Reception and Medical Center. (Doc. 28, p. 2). Second, petitioner asserted he was entitled to equitable tolling for an unspecified period in 2010, due to "a third operation on his right leg fibula and tibia, and being hospitalized for several months at the time." (Doc. 28, p. 2). Third, petitioner asserted he was entitled to equitable tolling from October 2011 through January 2012, when he was hospitalized and treated for a medical issue involving his lung. (Doc. 28, pp. 2-3). Specifically, petitioner alleged that in October of 2011, he "had to be rushed to Tallahassee Hospital by ambulance due to Mr. Hopkins having his lung collapse." (Doc. 28, p. 2). Petitioner asserted he was in the hospital "for several weeks until he was stable enough to be moved by ambulance to Jacksonville Memorial Hospital for several more weeks to recover, then Mr. Hopkins was taken to Butler Regional Medical Center to recover for several more months." (Doc. 28, pp. 2-3). Petitioner asserted he "did not have his legal work nor did he have access to his legal work or the ability to proceed due to the circumstances that were neither foreseen nor preventable." (Id., p. 3). Petitioner asserted he was attempting to obtain copies of his prison medical records to support his claim for equitable tolling. (Id.).
For several months following petitioner's response, the parties litigated the issue of petitioner's access to his medical records. Petitioner asserted, in a sworn affidavit filed April 16, 2014, that when he submitted a request to review his medical records, he was denied access to records pre-dating 2011 for the stated reason that such records "must be in the warehouse." (Doc. 33, p. 2). On April 23, 2013, the undersigned ordered that respondent "ensure petitioner is provided an opportunity to review a complete set of his medical records." (Doc. 34). After the parties disputed by sworn affidavits whether petitioner was provided access to his records, respondent's counsel (Assistant Attorney General Gerace) moved the court for an order allowing DOC-Medical "to disclose Petitioner's medical records that cover the time period of July 28, 2009 to the present [June 18, 2014] to the Office of the Attorney General." (Doc. 38, p. 3). AAG Gerace asserted that such order was necessary because she was "hampered by the confidentiality of Petitioner's records in [her] effort to ensure compliance" with the court's April 23, 2014 order, and that counsel also needed access so that she could respond to petitioner's anticipated claim for equitable tolling. (Doc. 38, p. 3). Petitioner accommodated counsel's request by authorizing the release of his medical records to respondent's counsel. (See Docs. 39, 40). Petitioner executed the authorization on June 26, 2014. (Doc. 40).
On July 24, 2014, petitioner filed a "Notice of Unavailability" in which he swore under oath that he "still ha[s] not been able to review a complete medical record prior to 2011 to abtain [sic] the correct and exact times and dates to file the Amended Sworn Affidavit." (Doc. 42, p. 3). Petitioner's notice was accompanied by an "Amended Sworn Affidavit Pertaining To Equitable Tolling Due To Extraordinary Circumstances," which was identical to the affidavit petitioner submitted on April 16, 2014, prior to the court ordering petitioner's access to his medical records. (Doc. 43; see also Doc. 33). Respondent filed a response, asserting that petitioner was provided access to a complete set of his medical records. (Doc. 46). Respondent's response included a sworn affidavit from Daphne Nelson, a Medical Records Clerk with the DOC, stating that on January 23, 2014, April 15, 2014, and April 30, 2014, petitioner was provided access to his medical records which covered the time period from 2008 to 2011, and which included petitioner's hospitalizations at Jacksonville Hospital, Tallahassee Memorial Hospital and Lake Butler Medical Unit. (Doc. 46, Ex. A, Nelson Aff. dated 8/11/14).
On August 25, 2014, the undersigned issued an order scheduling a telephone conference with the parties to resolve the medical records issue, and denied respondent's original motion to dismiss. The denial of the motion was without prejudice to respondent's right to re-assert her statute of limitations defense upon resolution of the medical records issue. (Doc. 47). The court held the telephone conference on October 9, 2014. At the conference, AAG Gerace stated that she received copies of the relevant medical records; that she intended to file a renewed motion to dismiss; and that her renewed motion to dismiss would attach copies of petitioner's medical records for the conditions petitioner identified as the basis for equitable tolling (the 2010 leg operation and the 2011 lung issue). (Doc. 51). AAG Gerace indicated she could file and serve her renewed motion to dismiss and attachments within thirty days. Petitioner agreed that a response deadline of twenty-one days was sufficient, and that he would notify the court immediately, via motion, if he could not prepare a response with the records provided. (Doc. 51).
Respondent filed her renewed motion on October 24, 2014, with attachments. (Doc. 55). After petitioner asserted he did not receive a copy of the renewed motion and exhibits, respondent re-served a copy, which petitioner received on January 7, 2015. (Doc. 65, p. 2; Doc. 66, Exs. A, B).
Respondent's renewed motion to dismiss attached relevant portions of the state court record (doc. 55, Exs. A-DD), as well as copies of petitioner's medical records relating to hospitalization at Memorial Hospital Jacksonville from June 18-22, 2010, for surgery on his right leg (see doc. 55, Ex. QQ; see also Exs. EE, FF (petitioner's recovery at RMC hospital from June 22-23, 2010); and Exs. LL, MM, NN, OO and PP, pp. 5-29) (petitioner's follow-up treatment at the RMC main unit from June 23, 2010, through February of 2011)). Respondent also provided copies of petitioner's medical records relating to petitioner's hospitalization and follow-up treatment for pneumonia at Tallahassee Memorial Hospital, Memorial Hospital Jacksonville, and RMC during the period September 27, 2011, through November 9, 2011. (Doc. 55, Exs. GG-KK).
On January 22, 2015, petitioner filed a Notice in which he asserted "the Exhibits were incomplete as they were missing the DOC Inmate Medical Records." (Doc. 65, p. 3). Respondent filed a response asserting that petitioner received all of the exhibits attached to her renewed motion to dismiss, and that those were the only medical records relevant to petitioner's claim of equitable tolling due to lack of access to legal materials during hospitalization and recovery for his leg and lung conditions (the conditions petitioner identified in his earlier filings). (Doc. 66, pp. 2-4). The court ordered petitioner to clarify what he meant by "incomplete," by filing a supplement to his Notice. (Doc. 67).
Petitioner's supplement (doc. 68) asserted that by "incomplete," petitioner meant that "Respondents have intentionally and knowingly omitted critical, crucial and relevant portions of Petitioner's Florida Department of Corrections (FDOC) inmate medical file/records as required to be maintained pursuant to Sec. 945.25, Exhibits seq., Fla. Stat., in an attempt to deprive Petitioner of that equitable tolling he is entitled to as hospitalization constituting the requisite extraordinary circumstances even more egregious and medically severe as those in
Nonetheless, in an order issued February 20, 2015, the undersigned liberally construed petitioner's pleading as suggesting that equitable tolling might apply to the 111-day period from August 12, 2012, through December 16, 2012. Because respondent, understandably, had not provided petitioner's medical records for that time period, the court in an abundance of caution ordered respondent to file with the court and serve upon petitioner a complete copy of petitioner's medical records for the three time periods that could possibly be subject to equitable tolling (July 29, 2009 — April 27, 2010; July 7, 2010-August 25, 2010; and August 28, 2012 — December 16, 2012). (Doc. 69).
AAG Gerace sought an extension of time, asserting that: "Undersigned provided all medical records which applied to [petitioner's original claims of equitable tolling for leg surgery in 2010 and a collapsed lung in 2011] with the renewed motion to dismiss." (Doc. 70, p. 1). AAG Gerace represented to the court that she was diligently working to obtain additional medical records for the court-ordered time periods, but required more time. (Doc. 70, p. 2). The court granted a limited extension (doc. 71) and, on March 13, 2015, AAG Gerace filed a copy of all medical records she had received for the relevant time periods. (Doc. 72, Exs. 14-16). In addition, AAG Gerace filed a copy of additional medical records she had received regarding petitioner's treatment at Memorial Hospital Jacksonville for pneumonia in October of 2011, even though they fell outside the time period subject to the court's February 20, 2015 order. (Doc. 72, Ex. 17). AAG Gerace confirmed that those were all the medical records she had received pertaining to the time periods at issue. (Doc. 74).
Petitioner has now responded to respondent's renewed motion to dismiss. (Doc. 77). Petitioner begins by arguing that AAG Gerace's production of medical records should be viewed with suspicion, because: (1) the DOC has never provided petitioner access to a complete set of his entire medical file, (2) AAG Gerace "dragged her feet in this issue," and (3) AAG Gerace provided "only portions of the record that Respondent saw fit." (Doc. 77, p. 2). To be clear, this court's February 20, 2015 order directed AAG Gerace to provide a complete copy of petitioner's medical records for the three time periods that could possibly be subject to equitable tolling (July 29, 2009 — April 27, 2010; July 7, 2010 — August 25, 2010; and August 28, 2012 — December 16, 2012). The order was mandatory, not discretionary (i.e., AAG Gerace was not given the discretion to provide only those records within the required time periods that she saw fit). AAG Gerace's response to that order included not only the records covering the required time periods (and more), but also a representation, as an officer of the court, that those were are all of the records she had received relating to those time periods. (Docs. 70, 72, 74). Without a particularized assertion that other medical records relating to those time periods exist, the court has no cause to doubt AAG Gerace's representations to the court. Petitioner's suggestion — that AAG Gerace selectively provided only those records she saw fit — appears to be based on nothing more than petitioner's suspicion and speculation. Thus, despite petitioner's suggestion, there is no basis to find that petitioner has been deprived of information or records necessary to present to the court specific allegations outlining the time periods that should be equitably tolled and the reasons for equitable tolling.
The only time periods for which equitable tolling could apply (should petitioner make the requisite showing) are July 29, 2009 — April 27, 2010; July 7, 2010 — August 25, 2010; and August 28, 2012 — December 16, 2012. These are periods of time when the statute of limitations was running and was not statutorily tolled under 2244(d)(2) by the pendency of a tolling state motion. Petitioner argues equitable tolling should be applied to all three time periods. (Doc. 77).
Petitioner claims he is entitled to equitable tolling for this period because of a fracture to his right leg/ankle that resulted in orthopedic surgery on June 18, 2010. Petitioner's medical records demonstrate that in early July of 2009, petitioner was transferred between the Northwest Florida Reception Center (NWFRC) and the Reception and Medical Center (RMC) for consultations with an orthopedist. (Doc. 72, Ex. 14, pp. 1-6). Upon petitioner's return to NWFRC on July 22, 2009, petitioner remained at NWFRC until June 15, 2010, except for two one-day appointments at RMC on December 15, 2009, and March 1, 2010. (Doc. 72, Ex. 14, pp. 5-16 (medical records documenting petitioner's medical care at NWFRC); see also Doc. 72, Ex. 12, pp. 1-4 (medical records documenting petitioner's two appointments at RMC)).
During this period of confinement at NWFRC, petitioner prepared a state habeas petition, which he mailed on April 28, 2010. (Doc. 55, Ex. M (petitioner's state habeas petition mailed from NWFRC on April 28, 2010)).
Petitioner was transferred from NWFRC to RMC on or about June 15, 2010, for pre-operative care. (Doc. 72, Ex. 15, pp. 1-2). Petitioner was transferred from RMC to Memorial Hospital Jacksonville on June 18, 2010, where he remained until June 22, 2010. (Doc. 72, Ex. 13; see also Doc. 72, Ex. 1). Petitioner was returned to RMC on June 22, 2010, (doc. 72, Ex. 1, p. 1) and discharged from the RMC hospital to the compound (the RMC main unit) on June 23, 2010, with the notation "improved." (Id.). Petitioner was given medical passes for a wheelchair, low bunk, and no weight bearing. (Id., p. 9, 24, 26, 28). Petitioner's surgery on June 18, 2010, and convalescence thereafter occurred during a period of statutory tolling until July 6, 2010, due to the pendency of petitioner's state habeas petition.
Petitioner argues he is entitled to equitable tolling during the 50-day period intervening the denial of his state habeas petition and the filing of his Rule 3.800(a) motion, because following his June 18, 2010, surgery, he "was placed on narcotic pain medications and steroids for several months and involved in intense physical therapy severely limiting his ability to access the library and competently work on any legal issues. (Doc. 77, pp. 5-6 (citing medical records at Doc. 72, Ex. 15)). Respondent asserts that petitioner's period of convalescence from his leg surgery was not severe enough to actually prevent him from pursing his legal rights, as evidenced by petitioner's preparation and filing of his Rule 3.800(a) motion, which he mailed from RMC on August 26, 2010, just two months (not "several" as petitioner describes) after his surgery. (Doc. 66, p. 3; see also Doc. 55, Ex. O, pp. 1-4 (petitioner's Rule 3.800(a) motion)). Respondent emphasizes that even giving petitioner the benefit of equitably tolling the 50-day period between July 7, 2010, and August 25, 2010, petitioner's federal habeas petition would still be untimely by 19 days. (Doc. 66, p. 3). Respondent is correct.
Even giving petitioner the benefit of assuming (without deciding) that he is entitled to equitable tolling for the period July 7, 2010, through August 25, 2010, that would mean that once petitioner's Rule 3.850 proceeding was complete (when the mandate issued on August 27, 2012), petitioner had 92 days remaining on the statute of limitations clock.
Petitioner argues he is entitled to equitable tolling beginning November 1, 2012, for the following reason:
(Doc. 77, p. 6).
Petitioner's medical records characterize petitioner's November 2, 2012, diagnostic procedure as a "liver US [ultrasound]" (doc. 72, Ex. 16, p. 2), a "liver sonogram" (doc. 72, Ex. 16, p. 3) and an "x-ray procedure" (doc. 72, Ex. 16, p. 3). Petitioner's medical records indicate that the sonogram was not performed at the RMC Hospital, but rather in the Radiology Department of either the RMC Main or West unit. (Doc. 72, Ex. 16, pp. 2-3). There is no record of a hospital admission, or of any medical restrictions or complaints following the procedure. Petitioner's medical records do not support petitioner's characterization of the sonogram as an "extraordinary circumstance" see Cole, supra, nor do they support petitioner's assertion that he was hospitalized for several days, then bed-ridden for several more days, and then suffered "severe[ ] limit[ation]" in his mobility for "several weeks" due to the liver sonogram.
Additionally, petitioner alleges no facts suggesting he diligently attempted to file his federal habeas petition in the months
As petitioner has not alleged specific facts which, if true, show that he pursued his federal rights diligently and that some extraordinary circumstance stood in his way of timely filing his petition, petitioner has not established his entitlement to equitable tolling sufficient to render his petition timely.
Petitioner's federal habeas petition was filed outside the AEDPA's one-year statute of limitations, and is time-barred. The undersigned has given petitioner the opportunity to amplify and support his allegations for equitable tolling. Petitioner has not demonstrated the requisite extraordinary circumstances and diligence necessary to justify equitable tolling for a period sufficient to overcome the statute of limitations bar.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.
The petitioner in this case fails to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning of this term) (citation omitted). Therefore, the court should deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. That respondent's renewed motion to dismiss (doc. 55) be GRANTED.
2. That the amended petition for writ of habeas corpus (doc. 13), challenging petitioner's judgment of conviction and sentence in State of Florida v. Jeffery Wayne Hopkins in the Circuit Court for Bay County, Florida, Case No. 07-CF-3014 be DISMISSED WITH PREJUDICE.
3. That the clerk be directed to close the file.
4. That a certificate of appealability be DENIED.
