Osmanovic v. Sec'y, Case No. 3:15-cv-1257-J-34PDB

• Decision Date: 26 October 2018
• Docket Number: Case No. 3:15-cv-1257-J-34PDB
• Court: U.S. District Court — Middle District of Florida
• Parties: AZAR OSMANOVIC, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

AZAR OSMANOVIC, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al., Respondents.

Case No. 3:15-cv-1257-J-34PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

October 26, 2018

ORDER

I. Status

Petitioner Azar Osmanovic, an inmate of the Florida penal system, initiated this action on July 16, 2015,¹ by filing a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Osmanovic challenges a 2008 state court (Duval County, Florida) judgment of conviction for armed burglary. Osmanovic raises four grounds for relief. See Doc. 1 at 4-11.² Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely and, Alternatively, Answer to Petition (Resp.; Doc. 19) with exhibits (Resp. Ex.). Osmanovic submitted a brief in reply on November 29, 2016. See Reply (Reply; Doc. 24). This case is ripe for review.

II. Relevant Procedural History

On March 6, 2008, by way of a second amended Information, the State of Florida charged Osmanovic with nine counts of burglary of a structure or conveyance (counts one, four, five, six, seven, eight, ten, eleven, twelve), armed burglary (count two), grand theft (count three), possession of burglary tools (count nine), and escape (count thirteen). Resp. Ex. A at 158-60. Shortly thereafter, on March 10, 2008, Osmanovic entered into an open plea of guilty to count two. Id. at 161-62, 271-78. On April 24, 2008, the circuit court sentenced Osmanovic to incarceration for a term of eighteen years, with a ten-year minimum mandatory pursuant to section 775.087, Florida Statutes. Id. at 169-74, 332. The state nolle prossed the remaining counts. Id. at 334.

On direct appeal, Osmanovic's appellate counsel filed an Anders³ brief, and Osmanovic did not file a pro se initial brief. Resp. Exs. C; D. The state did not file an answer brief. Resp. Ex. D. On March 24, 2009, Florida's First District Court of Appeal (First DCA) per curiam affirmed Osmanovic's conviction and sentence without a written opinion. Resp. Ex. E. The First DCA issued its Mandate on April 21, 2009. Resp. Ex. F.

On May 6, 2009, Osmanovic, with the assistance of counsel, filed a Motion to Correct Sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he argued his ten-year minimum mandatory sentence was illegal. Resp. Ex. G. The circuit court denied the Rule 3.800(a) Motion on June 8, 2009, and August 7, 2009.⁴ Resp. Exs. K; L. Osmanovic did not immediately appeal the circuit court's order within the thirty-day window afforded under Florida law. See Fla. R. App. P. 9.140(b)(3). However, on June25, 2010, Osmanovic filed a pro se Petition for Writ of Habeas Corpus (Petition for Belated Appeal) with the First DCA in which he sought a belated appeal of the circuit court's denial of his Rule 3.800(a) Motion. Resp. Ex. M. The First DCA ultimately granted the request on October 6, 2010, allowing Osmanovic to pursue a belated appeal of the circuit court's order. Resp. Ex. R. On January 20, 2011, the First DCA per curiam affirmed the circuit court's ruling without a written opinion. Resp. Ex. T. The First DCA issued its Mandate on February 15, 2011. Resp. Ex. U.

On January 24, 2011, Osmanovic filed a Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850, see Resp. Ex. V at 1-17, and on December 30, 2011, he filed an Amended Rule 3.850 Motion. See Id. at 28-38. In the Amended Rule 3.850 Motion, Osmanovic alleged that trial counsel was ineffective for failing to: negotiate a plea deal with the state that included a youthful offender sentence (ground one); advise him of the consequences of entering an open plea (ground two); argue he could not be convicted of armed burglary because the state nolle prossed the grand theft count (ground three); and argue the guns he stole were antiques (ground four). Id. at 28-38. On July 3, 2014, the circuit court denied the Amended Rule 3.850 Motion. Id. at 181-87. The First DCA per curiam affirmed the circuit court's order without a written opinion on May 14, 2015. Resp. Ex. Z. The First DCA issued its Mandate on June 9, 2015. Resp. Ex. AA. Additionally, during the pendency of his Rule 3.850 proceedings, Osmanovic filed another Rule 3.800(a) Motion on June 15, 2011. Resp. Ex. BB. However, it appears the circuit court has yet to rule on that Rule 3.800(a) Motion. Resp. Ex. B.

III. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) 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—

(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.

(2) 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). "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). The Court notes that "a post-conviction motion is not pending under§ 2244(d)(2) between the time that the period to file a timely appeal expires and the filing of a petition for belated appeal," regardless if a state appellate court ultimately grants the belated appeal. McMillan v. Sec'y for Dep't of Corr., 257 F. App'x 249, 252-53 (11th Cir. 2007).

Respondents contend that the Petition is untimely, arguing that Osmanovic is not entitled to tolling from the period between when the ruling on his Rule 3.800(a) Motion became final and when he filed his Petition for Belated Appeal with the First DCA. Doc. 19 at 8-12. Osmanovic counters in his Reply that his filing of the petition for belated appeal tolled the statute of limitations. Doc. 24 at 2. The following procedural history is relevant to the one-year limitations issue.

Osmanovic's judgment became final on June 22, 2009 (ninety days from March 24, 2009). See DeLeon v. Fla. Dep't of Corr., 470 F. App'x 732, 733-34 (11th Cir. 2012) ("On direct appeal, where the petitioner did not file a petition for certiorari to the United States Supreme Court, a judgment becomes final after the expiration of the 90 days in which a petition could have been filed."). The circuit court convicted Osmanovic after April 24, 1996, the effective date of the AEDPA; therefore, Osmanovic had one year from the date his conviction became final to file a federal habeas petition (June 22, 2010). Osmanovic's Petition filed on July 16, 2015⁵ is due to be dismissed as untimely unless he can avail himself of one of the statutory provisions which extends or tolls the limitation period.

Here, Osmanovic immediately tolled the AEDPA statute of limitations when he filed his Rule 3.800(a) Motion within the ninety-day window to seek certiorari review of his direct appeal with the United States Supreme Court. See 28 U.S.C. § 2244(d)(2). Because Osmanovic did not timely appeal the circuit court's order, the one-year limitations period began to run on September 6, 2009, thirty days after the denial of his Rule 3.800(a) Motion. See Fla. R. App. P. 9.140(b)(3). Accordingly, prior to the filing of his Petition for Belated Appeal, 292 days of the one-year limitations period had passed because nothing was pending during that period for purposes of section 2244(d)(2). See McMillan, 257 F. App'x at 252-53. The First DCA's granting of Osmaonvic's Petition for Belated Appeal tolled the statute of limitations period again from June 25, 2010, the date he filed the petition, until the First DCA issued its Mandate on February 15, 2011. Id. As of February 15, 2011, Osmanovic had 73 days remaining to file his federal habeas petition (365 days minus 292 days).

However, prior to February 15, 2011, Osmanovic filed a Motion for Postconviction Relief pursuant to Florida Rule of Criminal Procedure 3.850 on January 24, 2011. Resp. Ex. V at 1-17. The filing of this Rule 3.850 Motion further tolled the statute of limitations period. See 28 U.S.C. § 2244(d)(2). Osmanovic's Rule 3.850 proceedings did not become final until June 9, 2015, when the First DCA issued its Mandate affirming the circuit court's denial of his Rule 3.850 Motion. Resp. Ex. AA. Additionally, during the pendency of his Rule 3.850 proceedings, Osmanovic filed another Rule 3.800(a) Motion on June 15, 2011, Resp. Ex. BB, which also tolled the statute of limitations period. See 28 U.S.C. § 2244(d)(2). As noted above, the circuit court has yet to rule on this Rule 3.800(a) Motion, Resp. Ex. B.; therefore, the statute of limitations period remains tolled because the motionis still pending. See 28 U.S.C. § 2244(d)(2). Based on this record, Osmanovic still had 73 days left in his AEDPA one-year statute of limitations before he filed his Petition on July 16, 2015. Accordingly, the instant Petition is timely.

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the...