Jerkins v. Sec'y
Decision Date | 02 February 2015 |
Docket Number | Case No. 3:11-cv-1062-J-32JRK |
Parties | STEVEN K. JERKINS, Petitioner, v. SEC'Y, FLA. DEP'T OF CORR., et al., Respondents. |
Court | U.S. District Court — Middle District of Florida |
Petitioner initiated this action by filing a pro se Petition (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 25, 2011.1 Petitioner challenges a June 26, 2006 state court (Columbia County) judgment of conviction for dealing in stolen property, for which he received a ten-year term of imprisonment. Petitioner raises the following three grounds: (1) Petitioner's plea, admitting that he violated the terms of his probation, was not knowing and voluntary; (2) the trial court failed to advise Petitioner of the maximum allowable sentence that could be imposed upon violation of his probation; and (3) the trial court failed to advise Petitioner that, as a direct consequence of his admitting that he violated the terms of his probation, he would receive a sentence that upwardly departed from the sentencing guidelines.
Respondents contend that the Petition must be dismissed as untimely. See Answer and Motion to Dismiss as Untimely (Doc. 14) (Response). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection:
28 U.S.C. § 2244(d).
On May 15, 2003, pursuant to a plea agreement, Petitioner pled guilty to a charge of dealing in stolen property, the trial court withheld adjudication of guilt, and the court placedPetitioner on probation for five years. Ex.2 3 at 19-20, 23-26. Petitioner violated several conditions of his probation, and after admitting such violations, the trial court entered an Order of Revocation of Probation on June 26, 2006, adjudicated Petitioner guilty of dealing in stolen property and sentenced him to ten years of imprisonment. Id. at 29. Petitioner did not appeal. Ex. 2 at 3. Thus, Petitioner's judgment became final thirty days later on July 26, 2006. See Fla. R. App. P. 9.140(b)(3); Saavedra v. State, 59 So.3d 191, 192 (Fla. 3rd DCA 2011); Gust v. State, 535 So.2d 642, 643 (Fla. 1st DCA 1988) ( ). Therefore, Petitioner's one-year limitation period began to run on July 27, 2006, and expired one year later on July 27, 2007, unless he had any applications for post-conviction relief that would serve to toll the limitation period. See 28 U.S.C. § 2244(d)(1)(A), (d)(2); Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) ( ).
On May 11, 2007, Petitioner filed a motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.850 (3.850 motion) in the circuit court. Ex. 3 at 1-6. In the 3.850 motion, he argued that trial counsel was ineffective for advising him to enter into the plea agreement in 2003 because the statute of limitations for the charge of dealing in stolen property had expired. Id. at 2-4. On January 16, 2008, the circuit court denied the motion as untimely. Id. at 9-11. Specifically, the court noted that Petitioner was "not challenging the effectiveness of counsel at the violation of probation proceedings which occurred on June26, 2006, but rather the effectiveness of counsel during the underlying plea, which was entered on May 15, 2003, and which became final on June 14, 2003, when no appeal was filed." Id. at 10 (citation omitted). Accordingly, the court concluded that the motion was "untimely, having been received substantially more than two years after June 14, 2003, the date the original sentence and judgment became final." Id. ( ); see also Romahn v. State, 743 So.2d 104 (Fla. 5th DCA 1999) ( ).
Accordingly, the one-year limitation period was not tolled during the pendency of his 3.850 motion because it was not a "properly filed application for State post-conviction" relief under § 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8 (2000) ( ); Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) () (citation omitted); Stafford v. Thompson, 328 F.3d 1302, 1305 (11th Cir. 2003) (per curiam) ( ).
Therefore, as noted above, the limitations period expired on July 27, 2007, unless Petitioner had any other applications for post-conviction relief that would serve to toll thelimitation period. Petitioner filed two other applications for post-conviction relief after July 27, 2007,3 see Response at 3-5; however, even assuming arguendo that these applications were properly filed, they did not toll the federal one-year limitation period because it had already expired. See Tinker v. Moore, 255 F.3d 1331, 1334-35 (11th Cir. 2001) ( ); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (per curiam) () . Thus, this action was not timely filed.
Petitioner appears to concede that this action was not timely filed, but argues that the Court should reach the merits of the Petition due to the "manifest injustice exemption" since he received an upward departure sentence under the guidelines. See Petitioner's Reply to State's Response (Doc. 18) at 2. However, to invoke the fundamental miscarriage of justice exception to AEDPA's statute of limitations, a habeas petitioner must make a credible showing of actual innocence with new evidence that was not available at the time of his trial. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-32 (2013). To do so, "a petitioner 'must show that it is more likely than not that no reasonable juror would have convicted him in thelight of the new evidence.'" Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has not made the requisite showing.
In sum, Petitioner has not shown an adequate reason why the dictates of the one-year limitation period should not be imposed upon him. Accordingly, this...
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