ORDER
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 April 15, 2015, pursuant to the mailbox rule.1 He challenges his 2011 Duval County conviction for robbery while armed with a firearm and possession of a firearm by a juvenile delinquent.
Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a one-year period of limitation:
(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;
©) 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).
Respondents, in their Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely (Response) (Doc. 12), contend that Petitioner has failed to comply with the one-year limitation period. They provide exhibits in support of their contention. (Doc. 12).2 Petitioner was given admonitions and a time frame to respond to the request to dismiss the Petition contained within the Response. See Court's Order (Doc. 7). Petitioner filed a reply (Reply) (Doc. 16).
The Court will provide a brief procedural history. Petitioner entered and the trial court accepted a plea of guilty. Ex. B. On January 31, 2011, judgment and sentence were entered. Ex. A at 142-46. On direct appeal, counsel filed an Anders brief. Ex. D. The 1st DCA affirmed per curiam on September 8, 2011. Ex. F. The mandate issued on October 4, 2011. Ex. G. The conviction became final on December 7, 2011 (90 days after September 8, 2011) ("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 December 8, 2011, and ran for 314 days, until Petitioner filed a Rule 3.800(a) motion in the circuit court on October 17, 2012. Ex. L. The one-year limitation period remain tolled until the circuit court denied the motion in an order filed on November 21, 2012. Ex. N. The limitation period began to run on November 22, 2012, and ran for a period of fifteen days, until Petitioner filed his first Rule 3.850 post conviction motion on December 7, 2012. Ex. O at 1-28, 54-84. The circuit court denied the Rule 3.850 motion in an order filed on August 15, 2014. Id. at 88-127. The one-year limitation period was tolled until December 23, 2014, when the mandate issued. Ex. Q. The limitation period began to run on December 24, 2014, and the one-year period expired thirty-six days later, on Thursday, January 29, 2015.3
Although Petitioner filed two motions seeking mitigation of his sentence pursuant to Fla. R. Crim. P. Rule 3.800(c), these motions do not qualify as applications for collateral review and do not toll the limitation period. Ex. H; Ex. J. Baker v. McNeil, 439 F. App'x 786, 788-89 (11th Cir. 2011) (per curiam) (finding Rule 3.800(c) concerns only pleas for mercy and leniency, not collateral review, and distinguishing the Rhode Island statute at issue in Wall v. Kholi, 560 U.S. 903 (2011)), cert. denied, 565 U.S. 1236 (2012). See Shanklin v. Tucker, No. 3:11cv357/RV/MD, 2012 WL 1398186, at *3 (N.D. Fla. March 21, 2012) (not reported in F.Supp.2d) (Report and Recommendation) (recognizing that "[i]n Baker, the Eleventh Circuit held that state court motion for discretionary sentence reduction pursuant to Rule 3.800(c) of the Florida Rules of Criminal Procedure was not an application for state post-conviction or other collateral review, and thus petitioner's filing of such a motion did not toll the one-year limitations period for filing a federal habeas petition."), report and recommendation adopted by No. 3:11cv357/RV/MD, 2012 WL 1396238 (N.D. Fla. Apr. 23, 2012). As a result, there was no statutory tolling of the one-year statute of limitation by the filing of the Rule 3.800(c) motions.
Although Petitioner filed a second Rule 3.850 motion on September 10, 2014, Ex. R, the circuit court denied the motion as untimely filed, as well as for other reasons. Ex. S. Thus, this motion for post conviction relief did not toll the running of the limitation period. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (a post conviction motion found to be untimely filed is not properly filed and does not toll).
Based on the record before the Court, Petitioner has not presented any justifiable reason why the dictates of the one-year limitation period should not be imposed upon him. Petitioner has failed to show an extraordinary circumstance, and he has not met the burden of showing that equitable tolling is warranted.4 Additionally, Petitioner had ample time to exhaust state remedies and prepare and file a federal petition. Therefore, this Court will dismiss the case with prejudice pursuant to 28 U.S.C. § 2244(d).5
Accordingly, it is now
ORDERED:
1. The Petition and the case are DISMISSED WITH PREJUDICE.
2. The Clerk shall enter judgment dismissing the Petition with prejudice and dismissing the case with prejudice.
3. The Clerk shall close the case.
4. If Petitioner appeals the dismissal of the Petition, the Court denies a certificate of appealability.6 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.
