ORDER
BRIAN J. DAVIS, District Judge.
I. STATUS
Petitioner challenges a 2008 (Duval County) conviction for robbery. Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) at 1. He filed the Petition on July 21, 2014, pursuant to the mailbox rule.1 He raises eleven grounds in the Petition. Respondents filed a Motion to Dismiss (Response) (Doc. 17), and they calculate that the Petition is untimely filed. In support of the Response, they submitted Exhibits (Doc. 21).2 Petitioner filed a Reply (Doc. 27). See Order (Doc. 6).
Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a one-year period of limitations:
(d)(1) 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—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The 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).
To adequately address Respondents' contention that Petitioner has failed to comply with the limitations period, the Court will provide a brief procedural history. Petitioner was charged by amended information with robbery. Ex. A at 17. A jury returned a verdict of guilty as charged. Id. at 193; Ex. D at 297.
On March 26, 2008, the trial court sentenced Petitioner to 15 years in prison. Ex. B at 275. Petitioner appealed. Ex. E; Ex. F. On March 12, 2009, the First District Court of Appeal affirmed per curiam. Ex. G. The mandate issued on March 30, 2009. Id. The conviction became final on June 10, 2009 (90 days after March 12, 2009) ("According to rules of the Supreme Court, a petition for certiorari must be filed within 90 days of the appellate court's entry of judgment on the appeal or, if a motion for rehearing is timely filed, within 90 days of the appellate court's denial of that motion.").
The limitation period began to run on June 11, 2009, and ran for a period of 222 days, until Petitioner, on January 19, 2010, filed a Rule 3.850 motion for post conviction relief in the circuit court.3 Ex. I at 1-58. This post conviction motion tolled the limitations period until the mandate issued on September 27, 2012. Ex. M. The limitations period began to run on September 28, 2012, and ran for a period of 69 days, until Petitioner file a second Rule 3.850 motion on December 6, 2012.4 Ex. N. This motion tolled the limitations period, and it remained tolled until the mandate issued on December 31, 2013.5 Ex. S. The petition for discretionary review, Ex. JJ, filed December 31, 2013, tolled the limitations period until it was dismissed as moot on January 17, 2014. Ex. KK. See Matos v. Sec'y, Fla. Dep't of Corr., 603 F. App'x 763, (11th Cir. 2015) (per curiam) (counting the period from the date the Florida Supreme Court declined to accept jurisdiction of an appeal). The petition for discretionary review, filed on December 31, 2013, also tolled the limitations period. Ex. LL. The parties briefed jurisdiction. Ex. MM; Ex. NN. On June 16, 2014, the Supreme Court of Florida declined to accept jurisdiction and denied the petition for review. Ex. OO. Thus, the limitations period began to run again on June 17, 2014. After running the final 74 days, the one-year limitations period expired on Saturday, August 30, 2014.6 The federal petition was due to be filed by Tuesday, September 2, 2014.7 Petitioner timely filed his federal petition on July 21, 2014.
Of note, Petitioner's Petition for Writ of Mandamus did not serve to toll the limitation period. Ex. AA; Ex. CC; Ex. DD; Ex. EE; Ex. FF; Ex. GG; Ex. HH; Ex. II. A discovery motion does not toll AEDPA's limitation period, and neither does a Rule 3.853, Fla. R. Crim P. motion for DNA testing. Brown v. Sec'y for the Dep't of Corr., 530 F.3d 1335, 1337-38 (11th Cir. 2008). These types of motions are not direct requests for judicial review, nor do they provide the circuit court with authority to order relief from judgment. Espinosa v. Sec'y, Dep't of Corr., 804 F.3d 1137, 1141 (11th Cir. 2015) (citation omitted).
This Court previously rejected the contention that a mandamus petition seeking an order from the trial court directing counsel to provide Petitioner with free copies of records and files constituted a tolling motion. Ramirez v. Sec'y, DOC, No. 3:13-cv-979-J-39JRK, 2015 WL 6704312, at *3 (M.D. Fla. Nov. 3, 2015) (Not Reported in F.Supp.3d). In this type of proceeding, the state court would lack the authority to order relief from the conviction and sentence. A motion/petition that does not directly challenge an underlying conviction or sentence will not trigger the tolling provisions of AEDPA. Phillips v. Culliver, No. 06-00816-KD-B, 2009 WL 3414280, at *4 n.7 (S.D. Ala. Oct. 16, 2009) (Not Reported in F.Supp.2d). It may lead to material that might help in developing a challenge, but it is not a collateral attack.
Based on all of the foregoing, the Petition, filed on July 21, 2014, pursuant to the mailbox rule, is timely. Therefore, Respondents' Motion to Dismiss is due to be denied.
Accordingly, it is now
ORDERED:
1. Respondents' Motion to Dismiss (Doc. 17) is DENIED.
2. Respondents shall provide the Court with a copy of the transcript of the state court evidentiary hearing (conducted on May 17, 2011, June 17, 2011, and June 30, 2011) by February 21, 2017.
3. Respondents shall respond to the Petition by March 14, 2017.
4. Petitioner shall file his reply by March 31, 2017.
DONE AND ORDERED.
