CHARLES A. STAMPELOS, Magistrate Judge.
The matter was referred to the undersigned magistrate judge for issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters, pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration, the undersigned has determined no evidentiary hearing is required for the disposition of this matter. See Rule 8(a), R. Gov. § 2254 Cases. The pleadings and attachments before the Court show the petition is untimely and should be dismissed. See Rule 4, R. Gov. § 2254 Cases in U.S. Dist. Cts (authorizing dismissal "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief" in federal court).
Petitioner Wilson entered a negotiated plea agreement in cases 11-132 CFMA (two counts) and 11-139 CFMA (five counts), and the state trial court sentenced him on February 6, 2012, pursuant to the terms of that agreement. ECF No. 15 at 3-4; see Exs. A3, A4, B3, B4, C.
On October 31, 2012, Wilson filed a pro se motion for post-conviction relief in the state trial court, pursuant to Florida Rule of Criminal Procedure 3.850. Ex. M. On April 3, 2013, Wilson filed a "Notice of Dismissal," pursuant to Rule 3.190, giving "Notice to this court and all Parties of this dismissal of the Pending `Restitution' and Probation filed with this court on 2-6-12" and asserting the court had erred in the restitution order. Ex. N. On May 22, 2013, Wilson filed a "Motion to Hear and Rule." Ex. O. In orders dated June 18, 2013, and rendered June 24, 2013, the state trial court denied on the merits both the Rule 3.850 motion, Ex. P, and the "Notice of Dismissal," which the court treated as a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), Ex. Q. On August 6, 2013, Wilson provided a notice of appeal to prison officials for mailing. Ex. R1. Although the Office of the Attorney General, Criminal Appeals, received this notice on August 14, 2013, no docket entry for the notice of appeal appears in the state circuit court for either case number. Id.; see Exs. A1, B1.
On September 3, 2013, Wilson filed a "Notice of Belated Appeal" regarding the circuit court's June 2013 orders denying post-conviction relief. Ex. R2. In an order dated October 15, 2013, the First DCA directed Wilson to show cause why the appeal, assigned case number 1D13-4934, should not be dismissed as untimely. Ex. S. On October 23, 2013, Wilson filed a response. Ex. T. In an opinion dated December 5, 2013, the First DCA dismissed the case without prejudice to Wilson's right to file a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). Ex. U;
On March 7, 2014, Wilson filed a pro se petition for belated appeal in the First DCA, assigned case number 1D14-1105, regarding the circuit court's June 2013 orders denying post-conviction relief. Ex. Y. On March 14, 2014, the First DCA directed Wilson to file a supplemental appendix containing a copy of the circuit court's orders. Ex. Z. Wilson filed a supplemental appendix on March 31, 2014. Ex. AA. By order dated April 7, 2014, the First DCA explained the supplemental appendix did not contain a copy of the order for which Wilson sought a belated appeal, again directed him to file an appendix containing a copy of the order, and warned him that failure to comply may result in dismissal of the case. Ex. BB. Wilson filed another supplemental appendix, which did contain copies of the June 2013 orders. Ex. CC. On May 13, 2014, the First DCA denied on the merits the petition for belated post-conviction appeal, without explanation. Ex. DD;
Wilson filed his § 2254 petition in this Court on October 13, 2014. ECF No. 1. He raises four grounds, all alleging trial court error in his sentencing: (1) trial court departed from the guideline sentence without a written reason, id. at 5; (2) trial court erred when it sentenced Petitioner to ten (10) years minimum mandatory where "the case at bar does not demonstrate that [he] ever poss[essed] a firearm," id. at 7; (3) trial court sentenced Petitioner "to a stiffer sentence than orig[inally] imposed," id. at 8; and (4) trial court erred in imposing restitution, id. at 10. Respondent has filed a motion to dismiss the § 2254 petition as untimely. ECF No. 15. Wilson has filed a reply. ECF No. 17.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), there is a one-year limitations period for filing a § 2254 petition. 28 U.S.C. § 2244(d)(1). The period generally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. at § 2244(d)(1)(A). Later dates which may commence the period are the date on which an unconstitutional impediment which prevented the applicant from filing is removed; the date on which the constitutional right asserted was recognized by the U.S. Supreme Court and made retroactive on collateral review; and the date on which the factual predicate for the claim could have been discovered with due diligence. Id. at § 2244(d)(1)(B)-(D). The period is tolled for the time during which a "properly filed" application for relief is pending in state court. Id. at § 2244(d)(2).
In this case, as set forth above, the First DCA dismissed Wilson's direct appeal on April 17, 2012, for failure to pay the filing fee or submit an order of insolvency. Ex. H. Wilson filed a motion for rehearing, Ex. I, which the First DCA treated as a motion for reinstatement and denied without prejudice on June 25, 2012, Ex. L. Allowing Wilson 90 days thereafter to seek certiorari review in the U.S. Supreme Court, his conviction became final for AEDPA purposes on September 23, 2012, starting his one-year AEDPA limitations period. See 28 U.S.C. § 2244(d)(1)(A); S.Ct. R. 13.1 (providing that petition for writ of certiorari is timely when filed within 90 days of entry of judgment or order), 13.3 (providing: "The time to file a petition for a writ of certiorari runs from the date of the entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.").
The AEDPA time ran for 38 days until Wilson filed his Rule 3.850 motion on October 31, 2012. Ex. M. Wilson also filed his "Notice of Dismissal" on April 3, 2013. Ex. N. The state trial court considered the Notice of Dismissal as a Rule 3.800(a) motion and denied it, along with the Rule 3.850 motion, in orders rendered June 24, 2013. Exs. P, Q. Wilson then had thirty (30) days to appeal these orders, until July 24, 2013; however, he did not file a timely appeal. Accordingly, his AEDPA time began running again on July 25, 2013, and expired 327 days later, on June 16, 2014.
Although Wilson filed a Notice of Belated Appeal and subsequently filed a Petition for Belated Appeal in the First DCA, concerning the denial of his post-conviction motions, these filings did not toll his AEDPA time. See
Id. Accordingly, Wilson's § 2254 petition, filed October 13, 2014, is untimely and should be dismissed.
For the reasons stated above, Respondent's motion to dismiss the § 2254 petition as untimely (ECF No. 15) should granted, and the § 2254 petition (ECF No. 1) should be dismissed. Petitioner's "Motion to Stay" (ECF No. 19) should also be denied.
Rule 11(a) of the Rules Governing Section 2254 Cases in the U.S. District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and 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)." Rule 11(b) provides that a timely notice of appeal must still be filed, even if the court issues a certificate of appealability.
Petitioner cannot make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2);
The second sentence of Rule 11(a) provides that "[b]efore entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Petitioner shall make any argument as to whether a certificate should issue by filing objections to this report and recommendation.
It is therefore respectfully
