Opinion
Case No. 8:08-CV-466-T-30TGW.
June 9, 2008
ORDER
Petitioner, an inmate in a Florida penal institution proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereinafter "petition") challenging a conviction for second degree murder entered by the Thirteenth Judicial Circuit Court, Hillsborough County, Florida (Dkt. 1). The petition is time-barred. See Jackson v. Secretary of Department of Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002) (district court possesses discretion to raise the issue of the timeliness of a Section 2254 petition for habeas corpus sua sponte).
The Anti-Terrorism and Effective Death Penalty Act created a new limitations period for petitions for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. "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 . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, "[t]he 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)(2).
Petitioner's conviction became final on June 23, 2003, when he voluntarily dismissed his direct appeal (Dkt. 1 at 2). Therefore, Petitioner had until June 23, 2004, to commence federal proceedings absent any delay attributable to tolling, i.e., a pending, properly filed application for state post-conviction relief.
30 days of the one-year limitation period elapsed until Petitioner filed a post-conviction motion in the state trial court on July 24, 2003 (Id. at 15). On October 2, 2003, the state trial court denied Petitioner's post-conviction motion (Id. at 82-85). Petitioner did not appeal the denial of his post-conviction motion. Therefore, the one-year limitation period resumed on November 1, 2003, when the time for Petitioner to appeal the denial of his post-conviction motion expired. See Fla. R. App. P. 9.110(b). Accordingly, Petitioner had another 335 days, or October 1, 2004, to file his federal habeas petition. Petitioner next filed a state post-conviction motion on February 4, 2005 (Id. at 15). However, once AEDPA's limitations period expires, it cannot be reinitiated. Therefore, none of Petitioner's filings after October 1, 2004, had any tolling effect. See Tinker v. Moore, 255 F.3d 1331, 1333-34 (11th Cir. 2001), cert. denied, 534 U.S. 1144 (2002). Consequently, Petitioner's federal habeas petition is untimely.
In his response to the Court's order to show cause why the petition should not be dismissed as time-barred (Dkt. 11), Petitioner argues that the limitation period remained tolled until January 30, 2004, because he had 90 days from the denial of his post-conviction motion to seek certiorari review in the United States Supreme Court. Petitioner is incorrect. The United States Supreme Court is not part of a "State's post-conviction procedures," and the statute of limitations is tolled only while the state court reviews the post-conviction motion. Lawrence v. Florida, 127 S. Ct. 1079, 1083 (U.S. 2007).
Petitioner claims he mailed his post-conviction motion to the state court on January 27, 2005 (Dkt. 11 at pp. 1-2). Even if true, the petition is still untimely as Petitioner mailed the post-conviction motion after the limitation period expired on October 1, 2004.
ACCORDINGLY, the Court ORDERS that:
1. Petitioner's petition for writ of habeas corpus (Dkt. 1) is DISMISSED as time-barred.
2. The Clerk is directed to enter judgment against Petitioner, terminate all pending motions, and close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMAPAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue — only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000),) or that "the issues presented were `adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. DONE and ORDERED in Tampa, Florida.