Bauer v. Fla. Attorney Gen.

Decision Date14 April 2017
Docket NumberCase No: 2:15-cv-148-FtM-29CM
PartiesJOSHUA AURTHUR BAUER, Petitioner, v. FLORIDA ATTORNEY GENERAL, STATE OF FLORIDA, and SECRETARY, DOC, Respondents.
CourtU.S. District Court — Middle District of Florida
ORDER OF DISMISSAL

This matter comes before the Court upon an amended petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Joshua A. Bauer ("Petitioner") who is presently a prisoner of the Florida Department of Corrections (Doc. 10, filed July 1, 2015). Petitioner, proceeding with counsel, attacks the convictions and sentences entered by the Twentieth Judicial Circuit Court in Lee County, Florida for first degree murder and attempted robbery with a firearm. Id. Respondent asks this Court to dismiss the petitionwith prejudice as untimely filed (Doc. 14, filed September 3, 2015). Petitioner filed a reply (Doc. 19), and the matter is ripe for review.

Petitioner raises five claims in his amended petition (Doc. 10). The Court cannot reach the merits of these claims because, as explained below, the pleadings, exhibits, and attachments before the Court establish that the petition must be dismissed as untimely.

I. Background and Procedural History

On August 17, 2009, after a jury trial, Petitioner was adjudicated guilty of first-degree felony murder, in violation of Florida Statute § 782.04 (count one) and attempted robbery with a firearm causing death (count two), in violation of Florida Statute § 812.13 (Ex. 1e at 363-72). Petitioner was sentenced to life in prison without the possibility of parole on count one and to fifteen years in prison on count two. Id. On September 14, 2011, Florida's Second District Court of Appeal affirmed the judgment and sentence without a written opinion (Ex. 4); Bauer v. State, 69 So. 3d 282 (Fla. 2d DCA 2011).

On September 19, 2012, Petitioner, through post-conviction counsel, filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion") (Ex. 6 at 1-22). On October 14, 2012, the post-convictioncourt dismissed the Rule 3.850 motion because it failed to contain Petitioner's sworn signature. Id. at 23. The dismissal was without prejudice to Petitioner filing a timely Rule 3.850 motion that included a proper oath. Id.

Petitioner filed a second Rule 3.850 motion on January 10, 2013 (Ex. 6 at 25-49). On January 28, 2014, the post-conviction court denied the second Rule 3.850 motion on its merits (Ex. 6 at 337-42). On October 8, 2014, Florida's Second District Court of Appeal affirmed without a written opinion (Ex. 10); Bauer v. State, 156 So. 3d 1086 (Fla. 2d DCA 2014). The state appellate court denied rehearing on November 17, 2014, and mandate issued on December 9, 2014 (Ex. 11; Ex. 12).

Petitioner delivered his initial 28 U.S.C. § 2254 habeas petition for writ of habeas corpus to prison officials for mailing on March 5, 2014 (Doc. 1).

II. Analysis
a. A 28 U.S.C. § 2254 federal habeas corpus petition is subject to a one-year statute of limitation

Pursuant to the requirements set forth in 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to the filing of a habeas petition by a person in custody pursuant to a state court judgment. This limitation period runs 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 that 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.

28 U.S.C. § 2244(d)(1). Here, Petitioner does not allege, nor does it appear from the pleadings or record, that the statutory triggers set forth in §§ 2244(d)(1)(B)-(D) apply. Therefore, the statute of limitations is measured from the remaining statutory trigger, which is the date on which Petitioner's conviction became final. 28 U.S.C. § 2244(d)(1)(A).

b. Petitioner's federal habeas corpus petition is untimely under 28 U.S.C. § 2244(d)(1)(A)

Florida's Second District Court of Appeal affirmed Petitioner's convictions and sentences on September 14, 2011 (Ex. 4). His judgment became final ninety days later—when Petitioner's time to seek review in the United States Supreme Court expired.See Bond v. Moore, 309 F.3d 770 (11th Cir. 2002) (Petitioner has ninety days to seek certiorari in Supreme Court after direct review in state courts). Accordingly, Petitioner's judgment became final on December 13, 2011. Petitioner then had through December 14, 2012 to file his federal habeas petition. Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (AEDPA's one-year "limitations period should be calculated according to the 'anniversary method,' under which the limitations period expires on the anniversary of the date it began to run.") (citing Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)).

Petitioner's federal habeas petition was filed on March 5, 2015 (Doc. 1). Therefore, it was filed 1177 days late unless tolling principles apply to render it timely.

c. Petitioner's habeas corpus petition is not subject to statutory tolling

"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)(2). An application is properly filed "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). To be "properly filed," the application must satisfy the mechanical rules that are enforceable by the clerks. Pace v. DiGuglielmo, 544U.S. 408, 415 (2005). "These [rules] usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz, 531 U.S. at 8. Moreover, in Florida, "[t]he motion must be under oath stating that the defendant has read the motion or that it has been read to him or her, that the defendant understands its content, and that all of the facts stated therein are true and correct." Fla. R. Crim. P. 3.850(c).

Petitioner filed his first Rule 3.850 motion on September 19, 2012, after 280 days of his AEDPA statute of limitation had passed (Ex. 6 at 1-22). The motion was dismissed without prejudice on October 14, 2012 because "the motion, prepared by counsel on Defendant's behalf, [was] not properly signed by Defendant under oath." Id. at 23. The Eleventh Circuit has recognized that a Rule 3.850 motion that is not properly filed because it lacks a properly sworn oath does not toll the AEDPA statute of limitations. Hurley v. Moore, 233 F.3d 1295, 1298 (11th Cir. 2000)("We conclude that Hurley's § 2254 petition could only be considered timely if his first state post-conviction motion under Fla. R. Crim. P. 3.850, dismissed for failure to comply with the procedural requirement of a written oath, is a properly-filed post-conviction motion. It is not."); Jones v. Sec'y. Fla. Dep't of Corr., 499 F. App'x 945, at *4 (11th Cir. 2012)(Because Petitioner's Rule 3.850 motion wassigned only by Petitioner's counsel, and not by Jones himself, his Rule 3.850 motion "was not properly verified and did not toll AEDPA's limitations period.") (citing Hurley, 233 F.3d at 1298); Delguidice v. Fla. Dep't of Corr., 351 F. App'x 425 (11th Cir. 2009)(concluding that a Rule 3.850 motion filed in state court was not properly filed because it did not contain a written oath).

Petitioner notes that, in some cases, the Northern District of Florida has concluded that an initial, improperly filed, Rule 3.850 motion is "pending" during the period between the state circuit court's order striking the motion with leave to amend and Petitioner's filing a timely amended Rule 3.850 motion (Doc. 29 at 3-5) (citing Barry v. Crews, No. 5:14cv20/RS/EMT, 2014 WL 6909410 (N.D. Fla. Dec. 9, 2014) and Peterson v. Jones, No. 3:14cv104/RV/CJK, 2015 WL 1061677 (N.D. Fla. Mar. 11, 2015)). Petitioner urges that applying the Northern District's interpretation to the facts of his case would result in a conclusion that his § 2254 petition was timely. Id. However, neither of these cases is binding on this Court, and other district courts in Florida (including the Northern District) have concluded that an insufficiently pleaded Rule 3.850 motion stricken with leave to amend does not toll the AEDPA statute of limitations. See Goldsmith v. Sec'y, Fla. Dep't of Corr., No. 3:15-cv-135-MCR-GRJ, 2016 WL 4154145, at *5 (N.D. Fla. Jun. 30, 2016) (finding Rule3.850 was not properly filed because the circuit court struck it for lacking a proper oath); Overton v. Jones, 155 F.Supp.3d 1253, 1269 (S.D. Fla. 2016) (disagreeing with Peterson and noting that a Rule 3.850 motion that is struck from the record ends the proceedings); Butler v. Sec'y, Fla. Dep't of Corr., No. 3:12-cv-1207-J-39JRK, 2015 WL 3671227, at *2 n.4 (M.D. Fla. June 12, 2015)(same).

This Court is persuaded by the overwhelming binding and persuasive authority from the Eleventh Circuit and other Federal District Courts in Florida that Petitioner's September 19, 2012 Rule 3.850 motion was not properly filed, and as a result, did not toll the AEDPA statute of limitation. Accordingly, Petitioner was still required to either file his § 2254 petition or a properly filed tolling motion by December 13, 2011.

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