Chavis v. Jones, Case No. 3:13cv612/LC/CJK

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtCHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
PartiesRICKY MARVIN CHAVIS, Petitioner, v. JULIE JONES, Respondent.
Decision Date12 January 2015
Docket NumberCase No. 3:13cv612/LC/CJK

RICKY MARVIN CHAVIS, Petitioner,
v.
JULIE JONES,1 Respondent.

Case No. 3:13cv612/LC/CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

January 12, 2015


ORDER AND REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 1) and supporting memorandum (doc. 2). Respondent moves to dismiss the petition as time-barred, providing relevant portions of the state court record (doc. 18). Petitioner opposes dismissal (doc. 27). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court

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show that the petition is untimely and should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner was charged by Second Amended Information filed in Escambia County Circuit Court Case No. 01-CF-5675 with the following crimes: (1) Accessory After the Fact to a Capital Felony by helping "Derek King avoid or escape detection, arrest, trial or punishment, then and there well knowing that the said Derek King had committed a capital felony, to-wit First Degree Murder" (Count 1); and (2) Tampering with Evidence by unlawfully altering, destroying, concealing, or removing an item (clothing), knowing that a criminal trial or proceeding, or an investigation by a duly constituted prosecuting authority, law enforcement agency, or grand jury, was pending or about to be instituted, with the purpose to impair the verity or availability of the item in such proceeding or investigation (Count 2). (Doc. 18, Ex. B1).2 Petitioner went to trial and, on March 5, 2003, was found guilty as charged by jury verdict. (Ex. D). Petitioner was adjudicated guilty and sentenced to 30 years imprisonment on Count 1 and 5 years imprisonment on Count 2 (to run concurrent with the sentence on Count 1). (Ex. E). Petitioner's judgment of conviction was affirmed on direct appeal on March 31, 2005, per curiam and without a written opinion. Chavis v. State, 903 So. 2d 938 (Fla. 1st DCA 2005) (Table) (copy at Ex. I). Petitioner's first motion for rehearing was denied on April 12, 2005 (Ex. L), and his second motion for rehearing was denied on June 22, 2005. (Ex. O). The mandate issued July 8, 2005. (Ex. I).

On May 2, 2007, petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. P1). The state circuit court denied

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the motion in a written order filed August 27, 2007. (Ex. P3). The Florida First District Court of Appeal ("First DCA") affirmed on April 17, 2008, per curiam and without a written opinion. Chavis v. State, 980 So. 2d 493 (Fla. 1st DCA 2008) (Table) (copy at Ex. P6). The mandate issued May 13, 2008. (Ex. P6).

On April 28, 2010, petitioner filed a pleading titled Common Law Writ of Habeas Corpus under Florida Rule of Criminal Procedure 3.850(h), (Ex. Q1), which he later amended (Ex. Q2). The state circuit court treated the applications as motions for postconviction relief under Fla. R. Crim. P. 3.850, and denied them as untimely and successive. (Ex. Q3). The First DCA summarily affirmed on May 12, 2011, per curiam and without a written opinion. Chavis v. State, 64 So. 3d 1263 (Fla. 1st DCA 2011) (Table) (copy at Ex. Q11). The mandate issued July 29, 2011. (Ex. Q16).

On December 13, 2011, petitioner filed another Rule 3.850 motion. (Ex. R1). The state circuit court dismissed the motion with prejudice on June 23, 2012, as untimely and successive. (Ex. R2). The First DCA summarily affirmed on June 25, 2012, per curiam and without a written opinion. Chavis v. State, 93 So. 3d 1015 (Fla. 1st DCA 2012) (Table) (copy at Ex. R8). The mandate issued August 16, 2012. (Ex. R8).

On June 17, 2011, petitioner filed a Motion for Jail Time Credit under Florida Rule of Criminal Procedure 3.800(a). (Ex. S1). The state circuit court dismissed the motion without prejudice as facially insufficient. (Ex. S2). On October 3, 2011, petitioner filed another Motion to Correct Illegal Sentence Jail Time Credit under Florida Rule of Criminal Procedure 3.800(a), seeking 450 days of jail credit. (Ex. T1). The state circuit court granted the motion on January 23, 2012, and directed the clerk to correct petitioner's judgment and sentence to reflect 366 days of jail credit on petitioner's Count 1 sentence. (Ex. T2). A "Corrected Judgment and Sentence"

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was entered January 24, 2012. (Ex. T). Petitioner did not appeal.

On January 18, 2013, petitioner filed another Motion to Correct Illegal Sentence under Florida Rule of Criminal Procedure 3.800(a), arguing that due to disposition of the principal's (Derek King) case, he (petitioner) could only have been convicted of, and sentenced for, accessory to third-degree murder, a third-degree felony. (Ex. V1). The state circuit court dismissed the motion with prejudice on February 12, 2013, on the grounds that petitioner's claim challenged the validity of his conviction and could therefore be brought only under Rule 3.850, and if so brought would be untimely and successive. (Ex. V2). The First DCA summarily affirmed on July 1, 2013, per curiam and without a written opinion. Chavis v. State, 118 So. 3d 223 (Fla. 1st DCA 2013) (Table) (copy at Ex. V6). The mandate issued August 29, 2013. (Ex. V6).

Petitioner filed his federal habeas petition in this court on December 2, 2013. (Doc. 1). The petition raises one claim: "The State Court Erred By Failing To Correct The Degree Of The Offense Of Accessory After The Fact Of Murder, Which Is Higher Than Allowable Under Florida Law, In Violation Of Amendments 5 and 14." (Doc. 1, p. 5). In support of this claim, petitioner argues his conviction for Accessory After the Fact to First-Degree Murder and 30-year sentence is unlawful because the principal Derek King was convicted of third-degree murder and received a sentence of only 8 years in prison. (Doc. 1, pp. 5-7). Respondent asserts the petition is untimely and should be dismissed. (Doc. 18).

DISCUSSION

Because petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA governs this petition. Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138

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L. Ed. 2d 481 (1997). The AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The 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 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.

§ 2244(d)(1). The limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2).

Petitioner has not asserted that a State-created impediment to his filing a federal habeas petition existed, that he bases his claims on a right newly recognized by the United States Supreme Court, or that the facts supporting his claims could not have been discovered through the exercise of due diligence before his conviction became final. Accordingly, the statute of limitations is measured from the remaining trigger, which is the date on which petitioner's conviction became final. See 28 U.S.C. § 2244(d)(1).

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Respondent first asserts that the limitations period began to run on September 20, 2005, which was 90 days from the June 22, 2005 order denying rehearing in petitioner's direct appeal. (Doc. 18, p. 10). Respondent later concedes though, that when petitioner's judgment and sentence was corrected on January 24, 2012, to award proper jail credit, petitioner "could be deemed to have been resentenced within the meaning of Magwood v. Patterson, — U.S. —, 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010) so as to restart the one-year AEDPA statute of limitations as measured from § 2244(d)(1)(A)." (Doc. 18, p. 16).

Based on the Eleventh Circuit's decision in Ferreira v. Sec'y Dep't of Corr., 494 F.3d 1286 (11th Cir. 2007), and prior decisions of this court, the undersigned concludes that petitioner is entitled to the later triggering date occasioned by the state court's amendment of petitioner's sentence to award jail credit. As this court explained in Brown v. Sec'y, Dep't of Corr., No. 1:13cv00110-MP/GRJ, 2014 WL 2991131 (N.D. Fla. July 3, 2014):

In Florida, a sentence which incorrectly calculated jail credit is an illegal sentence. See State v. Mancino, 714 So.2d 429, 433 (Fla. 1998) (stating that "a sentence that does not mandate credit for time served would be illegal since a trial court has no discretion to impose a sentence without crediting a defendant with time served"). "A judgment setting out the corrected sentence is a new judgment." Mundy v. Secretary, Case No. 5:11-cv-71-RH-GRJ, Doc. 19 (April 18, 2012) (concluding that federal habeas petition was not due to be dismissed as second or successive because Petitioner's sentence had been amended for award of jail credit after first federal petition was dismissed as untimely, and subsequent petition
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