ORDER OF DISMISSAL WITH PREJUDICE

BRIAN J. DAVIS, District Judge.

Petitioner initiated this action by filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) on June 15, 2013.1 He challenges his 2010 Clay County conviction for lewd or lascivious molestation of a child under twelve years of age.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a one-year period of limitations. The statute provides:

28 U.S.C. § 2244(d).

Respondents contend that Petitioner has not complied with the one-year period of limitations as set forth in this subsection. See Respondents' Motion to Dismiss Petition for Habeas Corpus as Untimely (Response) (Doc. 15). In support of their contention, they have submitted exhibits.2 See Exhibits (Doc. 15). Petitioner was given admonitions and a time frame to respond to the request to dismiss the Petition contained within the Response. See Order (Doc. 7). Petitioner filed a Reply to Dismiss Petition as Untimely (Reply) (Doc. 16).

Petitioner was charged by information with lewd or lascivious molestation of a child under twelve years of age. Ex. A at 19. Petitioner entered into a guilty plea with a negotiated sentence of ten years to be followed by ten years of sex offender probation, with a waiver of the twenty-five year minimum mandatory term. Ex. B at 23-29. Petitioner acknowledged that he understood that he would be designated a sexual predator. Id. at 24. Petitioner signed the plea agreement on September 8, 2010. Id. at 28. The judgment and sentence was entered on September 9, 2010. Ex. C at 35-40. The court entered an order designating Petitioner as a sexual predator on September 15, 2010. Id. at 46. Petitioner did not timely appeal. Therefore, his conviction became final on Tuesday, October 12, 2010, when the time to appeal expired.3

Petitioner filed a Petition for Writ of Habeas Corpus seeking a belated appeal, addressed to the First District Court of Appeal, but apparently filed in the state circuit court on Friday, February 18, 2011. Ex. D at 48-50. On March 3, 2011, the circuit court denied the petition. Id. at 52-53. On March 11, 2011, Petitioner filed a Motion to Quash/Petition for Writ of Prohibition, or in the Alternative, Petition for Writ of [sic] Qua Warranto with the First District Court of Appeal. Ex. E at 55-65.

Meanwhile, on March 16, 2011, the First District Court of Appeal notified the parties that a petition (filed February 18, 2011 with the benefit of the mailbox rule) would be treated as a petition seeking a belated appeal pursuant to Florida Rules of Appellate Procedure 9.040(c) and 9.141(c). Ex. F at 72. The First District Court of Appeal, on March 30, 2011, granted Petitioner's motion to quash the circuit court's order and stated that "[a]n order on the merits of the petition for belated appeal will issue by this court on a future date." Ex. E at 66.

On April 15, 2011, the First District Court of Appeal relinquished jurisdiction to the trial court to appoint a special master; conduct an evidentiary hearing, if warranted; and issue a written report and recommendation concerning entitlement to a belated appeal. Ex. G at 77-78. On April 28, 2011, the state requested a hearing. Id. at 83. After conducting an evidentiary hearing, the Special Master, on September 23, 2011, issued a Special Master's Report and Recommendation on Petitioner's "Petition for Writ of Habeas Corpus" (Report). Ex. H.

In the Report, the Special Master noted that a request for a belated appeal is considered a petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), citing Murray v. Regier, 872 So.2d. 217, 225 (Fla. 2002). Ex. H at 90. Although Petitioner testified that he wrote one letter to his counsel stating that he desired to withdraw his plea and seek an appeal, his trial counsel, Michelle Taylor, testified that she did not receive any letter or communication from Petitioner requesting that she take any action on his behalf. Id. at 91. The Special Master found Ms. Taylor more credible than Petitioner, as Petitioner, in his petition stated that he made several requests to the public defender's office, but at the hearing, he attested that he sent one letter and never followed-up on the letter. Id. at 92. The Special Master recommended the denial of the petition, finding Petitioner did not timely request counsel to file a notice of appeal or request that any action be taken on his behalf. Id. at 92. The First District Court of Appeal, on October 19, 2011, denied the petition seeking a belated appeal on its merits. Ex. I; Danny v. State, 72 So.3d 750 (Fla. 1st DCA 2011) (per curiam).

Petitioner, on September 17, 2011, pursuant to the mailbox rule, filed a Motion for Post Conviction Relief in the circuit court. Ex. K at 106-113. The circuit court denied the motion on March 6, 2012. Id. at 146-49. On August 6, 2012, the circuit court entered an order denying rehearing. Id. at 30-32. Petitioner appealed. Id. at 51. The First District Court of Appeal affirmed per curiam on October 17, 2012. Ex. L at 55. The appellate court denied rehearing. Ex. M at 57. The mandate issued on November 14, 2012. Ex. N.

Petitioner filed a second Rule 3.850 motion on January 3, 2013. Ex. P. The circuit court denied the motion as untimely, procedurally barred, frivolous, and an abuse of process. Ex. Q at 120-23. Petitioner did not appeal.

The Petition, filed June 15, 2013, is due to be dismissed as untimely unless Petitioner can avail himself of one of the statutory provisions which extends or tolls the limitations period. The one-year limitations period was tolled until Tuesday, October 12, 2010, when the time for appealing his conviction expired. See Rule 9.140(b)(3), Fla. R. App. P.; Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988) (holding that, when a defendant does not file a direct appeal, the conviction becomes final when the thirty-day period for filing a direct appeal expires).

Upon consideration, the one-year limitations period in Petitioner's case began to run on Wednesday, October 13, 2010. It ran for 339 days until the filing of Petitioner's first Rule 3.850 motion on Saturday, September 17, 2011. Ex. K. This motion tolled the federal one-year limitations period through the date mandate issued on Wednesday, November 14, 2012. Ex. N. The one-year limitations period began to run on Thursday, November 15, 2012, and it expired twenty-six days after the mandate issued. Thus, the one-year period expired on Tuesday, December 11, 2012.

Although Petitioner, on February 18, 2011, filed a request for a belated appeal, Ex. F, the request was denied and the court did not in fact reopen direct review. Ex. I. See Jimenez v. Quarterman, 555 U.S. 113, 120 n.4 (2009) (finding where a state court reopens direct review, the conviction is rendered nonfinal for purposes of 28 U.S.C. § 2244(d)(1)(A)). This Court has held that "pending belated appeals do not toll the statute of limitations unless they are granted." Williams v. Sec'y, Dep't of Corr., No. 8:11-CV-1913-T-30AEP, 2012 WL 3143847, at *1 (M.D. Fla. Aug. 1, 2012) (not reported in F.Supp.2d) (citing Williams v. Crist, 230 F. App'x 861, 862 (11th Cir. 2006)). See also Clark v. Sec'y, DOC, No. 3:11-cv-878-J-39JRK, 2014 WL 1389577, at *2 (M.D. Fla. Apr. 9, 2014) (not reported in F.Supp.2d) (finding the petition for belated appeal that was ultimately denied did not toll the limitations period).

In Wilson v. Sec'y, Dep't of Corr., No. 8:07-cv-1579-T-17EAJ, 2008 WL 2131610, at *3 (M.D. Fla. May 21, 2008), this Court provided an in-depth explanation as to why the Court determined that a grant of a belated appeal, not the application for such out-of-time review, is the event which triggers appellate review. In Florida, a petition for a belated appeal is an original proceeding under Rule 9.100, and it "does not entail direct or collateral review of a judgment of conviction or sentence in Florida."4 Id. (footnote omitted). Thus, a petition raised pursuant to Rule 9.141(c), Fla. R. App. P., "does not qualify as a statutory tolling application under § 2244(d)(2)." Wilson, at *3.

Because Petitioner's petition for belated appeal was denied by the First District Court of Appeal, the state court never in fact reopened direct review, and the conviction was never rendered non-final for purposes of § 2244(d)(1)(A). Thus, the petition for belated appeal did not toll the limitations period.

Based on the foregoing, the Petition is untimely and due to be dismissed unless Petitioner can establish that equitable tolling of the statute of limitations is warranted. It has been established that "[t]he limitations period is subject to equitable tolling." Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 474 (11th Cir. 2014) (citing Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560 (2010)). As recently provided by the Eleventh Circuit:

Cole v. Warden, Ga. State Prison, No. 13-12635, 2014 WL 4958079, at *5 (11th Cir. Oct. 6, 2014).

The burden lies directly on Petitioner to make a showing of extraordinary circumstances that are both beyond his control and unavoidable with diligence. Also, this high hurdle will not be easily surmounted. Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005), cert. denied, 546 U.S. 1108 (2006); Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir. 2004) (per curiam) (citations omitted). Petitioner has not met the burden of showing that equitable tolling is warranted in this case. Indeed, he has not shown rare and exceptional circumstances which warrant the application of equitable tolling.

Petitioner has not presented any justifiable reason why the dictates of the one-year limitations period should not be imposed upon him. He had ample time to exhaust state remedies and prepare and file a federal petition. Therefore, this Court will dismiss this case with prejudice pursuant to 28 U.S.C. § 2244(d).

Therefore, it is now

ORDERED AND ADJUDGED:

1. Respondents' Motion to Dismiss Petition for Habeas Corpus as Untimely (Doc. 15) is GRANTED, and this case is DISMISSED with prejudice.

2. The Clerk shall enter judgment dismissing this case with prejudice.

3. The Clerk shall close the case.

4. If Petitioner appeals the denial of his Petition, the Court denies a certificate of appealability.5 Because this Court has determined that a certificate of appealability is not warranted, the Clerk shall terminate from the pending motions report any motion to proceed on appeal as a pauper that may be filed in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED.