ORDER

G. KENDALL SHARP, District Judge.

This case is before the Court on Petitioner Leonard Luckey's Petition for Writ of Habeas Corpus ("Petition," Doc. 1). Respondents filed a Response to the Petition ("Response," Doc. 16) in compliance with this Court's instructions. Petitioner was provided an opportunity to file a Reply to the Response but did not do so.

Petitioner asserts three grounds for relief in the Petition. For the following reasons, the Petition will be denied and dismissed as untimely or otherwise on the merits.

I. PROCEDURAL HISTORY

Petitioner was charged with burglary of a dwelling with a battery. (Doc. 17-1 at 49.) A jury found Petitioner guilty as charged. (Id. at 77.) The trial court sentenced Petitioner to life in prison as a prison release reoffender. (Id. at 39-40.) Petitioner appealed, and on June 29, 2004, the Fifth District Court of Appeal of Florida ("Fifth DCA") affirmed per curiam. (Doc. 17-3 at 102.)

On June 21, 2005, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure,1 but he subsequently filed another Rule 3.850 motion. See Doc. 17-3 at 145. The state court denied the subsequently filed motion in part and conducted a hearing on one ground. (Id. at 145-50.) The state court denied the remaining ground after the hearing. (Id. at 215; Doc. 17-4 at 18-19.) Petitioner appealed, and the Fifth DCA affirmed in part and reversed and remanded as to two grounds. (Doc. 17-4 at 66-71.) On remand, the state court appointed counsel to Petitioner, ordered competency evaluations, and subsequently found Petitioner to be competent. (Doc. 17-8 at 3-4.) The state court then conducted an evidentiary hearing after which it found one ground to be waived because Petitioner did not timely amend it and denied the other ground on the merits. (Doc. 17-5 at 76-79.) Petitioner appealed, and the Fifth DCA affirmed. (Doc. 17-9 at 32-33.) Mandate issued on April 23, 2012. (Id. at 34.)

While his Rule 3.850 proceeding was pending, Petitioner filed a motion to correct an illegal sentence pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure on November 29, 2005. The state court denied the motion on January 9, 2006. See Doc. 17-3 at 145, 271. Petitioner did not appeal.

On April 11, 2012, Petitioner filed a state habeas petition.2 (Doc. 17-9 at 39-44.) The state court denied the petition. (Id. at 130-37.) Petitioner appealed, and the Fifth DCA affirmed per curiam. (Id. at 240.) Mandate issued on April 17, 2014. (Id. at 241.)

On October 4, 2016, Petitioner filed a Rule 3.800(a) motion. See https://app02.clerk.org; Doc. 17-9 at 243. The state court denied the motion. See https://app02.clerk.org. Petitioner appealed but voluntarily dismissed the appeal on September 20, 2017. See http://jweb.flcourts.org.

Petitioner filed the Petition on July 4, 2016. (Doc. 1.)

II. ANALYSIS

Pursuant to 28 U.S.C. § 2244:

28 U.S.C. § 2244(d)(1)-(2).

In the present case, the Fifth DCA affirmed Petitioner's conviction on June 29, 2004. Petitioner then had ninety days, or through September 27, 2004, to petition the Supreme Court of the United States for writ of certiorari. See Sup. Ct. R. 13.3 Thus, under § 2244(d)(1)(A), the judgment of conviction became final on September 27, 2004, and Petitioner had through September 28, 2005, absent any tolling, to file a federal habeas corpus petition. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that the one-year period of limitation does not begin to run until the ninety-day period for filing a petition for certiorari with the Supreme Court of the United States has expired).

Under § 2244(d)(2), the limitations period was tolled during the pendency of Petitioner's "properly filed" state collateral proceedings. When Petitioner filed his Rule 3.850 motion on June 21, 2005, 267 days of the limitations period had expired. The time was tolled through April 17, 2014, when mandate issued on Petitioner's state habeas petition. At that time, 182 (365 - 267 = 98) days remained to timely file a petition, or through July 24, 2014. The Petition, however, was not filed until July 4, 2016. Accordingly, the Petition is untimely.4

Any of Petitioner's allegations that attempt to excuse his failure to file a petition within the one-year period of limitation and that are not specifically addressed herein have been found to be without merit.

III. CERTIFICATE OF APPEALABILITY

This Court should grant an application for certificate of appealability only if Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec'y Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition on procedural grounds without reaching the underlying constitutional claim, a certificate of appealability should issue only when a petitioner demonstrates "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.; Lamarca, 568 F.3d at 934. However, a prisoner need not show that the appeal will succeed. Miller-El. v. Cockrell, 537 U.S. 322, 337 (2003).

Petitioner has not demonstrated that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of reason would find this Court's procedural rulings debatable. Petitioner has failed to make a substantial showing of the denial of a constitutional right. Thus, the Court will deny Petitioner a certificate of appealability.

Accordingly, it is hereby ORDERED and ADJUDGED:

DONE and ORDERED.