Hysmith v. Jones, Case No. 3:17cv473-LC-CJK

CourtU.S. District Court — Northern District of Florida
Writing for the CourtCHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
PartiesGEORGE ELMER HYSMITH, Petitioner, v. JULIE L. JONES, Respondent.
Decision Date22 October 2018
Docket NumberCase No. 3:17cv473-LC-CJK

GEORGE ELMER HYSMITH, Petitioner,
v.
JULIE L. JONES, Respondent.

Case No. 3:17cv473-LC-CJK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

October 22, 2018


REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent moves to dismiss the petition as time-barred, providing relevant portions of the state court record. (Doc. 18). Petitioner opposes the motion. (Doc. 20). The matter is referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). The undersigned concludes that no evidentiary hearing is required for the disposition of this matter, and that petitioner's habeas petition should be dismissed as time-barred.

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BACKGROUND FACTS AND PROCEDURAL HISTORY

On August 31, 2010, a Florida jury found petitioner guilty of five crimes in Santa Rosa County Circuit Court Case No. 2009-CF-355: three counts of sexual battery of a child less than 12 years of age by a defendant over 18 (Counts 1, 2 and 3), lewd or lascivious molestation of a child less than 12 by a defendant over 18 (Count 4), and lewd or lascivious conduct (Count 5). (Doc. 18, Ex. A).1 The trial court adjudicated petitioner guilty and sentenced him to concurrent terms of life in prison for each sexual battery and 15 years in prison for each lewdness offense. (Ex. B). Judgment was rendered October 4, 2010. On October 8, 2012, the Florida First District Court of Appeal (First DCA) affirmed the judgment per curiam without opinion. Hysmith v. State, 97 So. 3d 827 (Fla. 1st DCA 2012) (Ex. C).

On June 7, 2013, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which he later amended. (Ex. D, pp. 1-30). The state circuit court denied relief by order rendered October 28, 2015. (Id., pp. 31-43). Petitioner did not timely appeal.

Petitioner later filed a pro se petition for belated postconviction appeal in the First DCA pursuant to Florida Rule of Appellate Procedure 9.141(c). The First DCA

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assigned Case No. 1D16-0706, and granted the petition on June 7, 2016. Hysmith v. State, 192 So. 3d 712 (Fla. 1st DCA 2016) (copy at Ex. E). The court directed: "Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal." (Id.). After the mandate issued, a construed notice of appeal was filed in the First DCA on July 12, 2016, and assigned Case No. 1D16-3156. (Ex. G). The First DCA summarily affirmed the denial of postconviction relief on March 21, 2017. Hysmith v. State, 224 So. 3d 213 (Fla. 1st DCA 2017) (Table). The mandate issued April 18, 2017. (Ex. G).

On June 29, 2016, petitioner filed a pro se motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), claiming his sentence on Count 4 was illegal because it was below the statutory limit for a life felony. (See Ex. F, p. 1). By order rendered August 19, 2016, the state circuit denied the motion, concluding that petitioner's 15-year sentence was legal because it was within the statutory limits for a first degree felony, which was the offense level for lewd or lascivious molestation. (Id., p. 2). The state court noted that the written judgment incorrectly identified the degrees of the two lewdness offenses (Counts 4 and 5) as life felonies instead of first and second degree felonies, respectively. (Id., p. 2). The court sua sponte corrected the judgment and ordered the clerk to prepare a corrected written judgment reflecting the proper offense level designations. (Id., pp. 2-3). A

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corrected judgment was entered on or about August 30, 2016. (Doc. 1, Ex. A). Petitioner did not appeal from the order denying his Rule 3.800(a) motion.

Petitioner filed his pro se federal habeas petition on July 12, 2017. (Doc. 1). Respondent asserts the petition is time-barred. (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 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 limitations 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.

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§ 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 claim on a right newly recognized by the United States Supreme Court, or that the facts supporting his claim 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 judgment became final. See 28 U.S.C. § 2244(d)(1).

Respondent asserts petitioner's judgment became final for purposes of § 2244(d), on January 6, 2013, when the 90-day period for filing a certiorari petition in the United States Supreme Court expired following the First DCA's October 8, 2012, affirmance. (Doc. 18). Petitioner asserts that the 2016 corrected judgment constitutes a new judgment within the meaning of § 2244, and that the limitations period did not begin to run until that judgment became final. (Doc. 1, p. 12; Doc. 20).

In Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286, 1288 (11th Cir. 2007), the Eleventh Circuit held that "AEDPA's statute of limitations runs from the date

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the judgment pursuant to which the petitioner is in custody becomes final, which is the date both the conviction and sentence the petitioner is serving become final." The Ferreira decision applied Burton v. Stewart, 549 U.S. 147 (2007), which held that the judgment that forms the basis of a § 2254 habeas petition is the one that places the petitioner in custody. See Burton, 549 U.S. at 153; see also Ferreira at 1292 ("[T]he judgment to which [section 2254(a)] refers is the underlying conviction and most recent sentence that authorizes the petitioner's current detention.").

Petitioner is in custody pursuant to the October 4, 2010, judgment which adjudicated him guilty of the five offenses and imposed the sentences he is now serving. The trial court's August 19, 2016, order did not revise or vacate any of petitioner's convictions or sentences and replace them with new ones. Instead, as the trial court specified, it "correct[ed] the written judgment to reflect the proper designations of [petitioner's] convictions on Counts 4 and 5." (Ex. F, pp. 2-3). The court did nothing more than correct a clerical error. Under Florida law, a sentencing court retains the inherent power to, at any time, correct clerical errors in its own judgments. See Boggs v. Wainwright, 223 So. 2d 316, 317 (Fla. 1969) (recognizing that "a court of record may . . . correct clerical mistakes in its own judgments and records" (citation omitted)); Drumwright v. State, 572 So. 2d 1029, 1031 (Fla. 5th

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DCA 1991) ("Florida has long recognized a court's inherent power to correct clerical errors.").

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