Selden v. Sec'y, Case No. 8:10-cv-2259-T-33EAJ

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtVIRGINIA M. HERNANDEZ COVINGTON
PartiesGLENN LEE SELDEN, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
Docket NumberCase No. 8:10-cv-2259-T-33EAJ
Decision Date22 March 2011

GLENN LEE SELDEN, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:10-cv-2259-T-33EAJ

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

Dated: March 22, 2011


ORDER

This cause is before the Court on Petitioner Glenn Lee Selden's pro se 28 U.S.C. § 2254 petition for writ of habeas corpus. Selden challenges his conviction and sentence entered by the Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. A review of the record demonstrates that, for the following reasons, the petition must be dismissed as untimely. In addition, Selden's claims have no merit.

BACKGROUND

On August 20, 2007, Selden pled guilty to armed burglary of a dwelling and six counts of grand theft as charged in case no. 06-7139. Adjudicated guilty pursuant to his plea terms, Selden was sentenced on the armed burglary charge to 15 years incarceration with a 10-year minimum mandatory prison term, followed by five years probation. On the remaining counts, Selden was sentenced to five-year prison terms. (Resp. Ex. 1). The sentences ran concurrently with each other.

Page 2

Selden did not timely appeal his plea-based judgment in case no. 06-7139. On October 25, 2007, Selden filed a motion to mitigate his sentence, which the state trial court denied on October 30, 2007. (See case docket, Resp. Ex. 2).

Selden filed a pro se petition dated December 3, 2007, in which he sought permission to pursue a belated direct appeal. (Resp. Ex. 3). His petition, although styled in the state district court of appeal, was improperly filed in the state trial court. Subsequent to receipt of the petition from the state trial court, the state district court of appeal obtained a response from the State and then directed the appointment of a commissioner to take testimony on Selden's allegation that he requested his counsel to file a timely appeal. After securing the commissioner's findings, the state district court of appeal denied Selden's belated appeal petition on September 24, 2008. Selden v. State, 991 So. 2d 868 (Fla. 2d DCA 2008)[table].

Selden filed a pro se petition for writ of habeas corpus dated February 28, 2009, in the Circuit Court for the Seventh Judicial Circuit, Volusia County. (Resp. Ex. 11). The petition was denied on March 26, 2009. (Resp. Ex. 12). Selden appealed, and on September 29, 2009, the state district court of appeal per curiam affirmed the denial of relief in case no. 5D09-1410. Selden v. State, 18 So. 3d 546 (Fla. 5th DCA 2009)[table].

Selden improperly sought review of the per curiam decision in the Florida Supreme Court. The Florida Supreme Court dismissed Selden's petition for review in case no. SC09-1985 on October 23, 2009. Selden v. State, 22 So. 3d 68 (Fla. 2009)[table].

On April 28, 2010, Selden filed a pro se petition for writ of habeas corpus in the Florida Supreme Court in case no. SC10-824. On June 18, 2010, the petition was transferred to the state trial court for consideration as a Rule 3.850 or Rule 3.800(a) motion

Page 3

for postconviction relief. His motion for rehearing was stricken as untimely. Nothing in the record indicates that subsequent to transfer, the state court entered an order on the construed motion for relief.

PRESENT PETITION IS TIME-BARRED

Selden filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Northern District of Florida dated September 7, 2010. The petition was transferred to this Court. (Docs. 2, 7). After Respondent was ordered to respond (Doc. 9), Selden sought a certificate of appealability, which was denied as premature. (Docs. 10, 11).

Selden's present 28 U.S.C. § 2254 petition dated September 7, 2010, is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA established a one-year statute of limitations for federal habeas corpus actions, 28 U.S.C. § 2244(d)(1). Subsection (2) of § 2244(d) provides that 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."

Selden's AEDPA limitations period for attacking his judgment in case no. 06-7139 runs from the date the case became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).

Selden's judgment became final on Wednesday, September 19, 2007, upon expiration of the time for appealing his judgment rendered August 20, 2007. See McGee v. State, 684 So. 2d 241 (Fla. 2d DCA 1996)(treating judgment and sentence upon entry of plea as final when time for filing appeal expired); Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)(same).

Page 4

Thereafter, Selden allowed more than a year to elapse in which he did not have an application pending in state court which would toll his AEDPA limitations period under 28 U.S.C. § 2244(d)(2). Selden's motion to mitigate his sentence may qualify as a tolling motion under Wall v. Kholi, 2011 WL 767700 (2011) (abrogating Alexander v. Sec'y Dep't of Corr., 523 F.3d 1291, 1297 (11th Cir. 2008)). However, the tolling period was only 5 days.

Although Selden filed his pro se petition seeking a belated postconviction appeal less than a year after finality of his judgment, the belated appeal petition does not constitute a state application for postconviction or other collateral review within the meaning of 28 U.S.C. § 2244(d)(2). In Florida, a belated appeal petition is not part of the "ordinary" direct or collateral review process of a conviction or sentence. According to Rule 9.141(c)(1), Florida Rules of Appellate Procedure, petitions seeking a belated appeal are "treated as original proceedings under Rule 9.100. Such a proceeding does not entail direct or collateral review of a judgment of conviction or sentence. The normal and ordinary collateral review process of a judgment contemplates a timely notice of appeal from the rendered order. A Florida defendant does not have the option of applying for a belated appeal as a alternative to filing a timely notice of appeal. The granting of a petition for a belated appeal-and not the application for such an out-of-time review is the event that triggers appellate review.

No review of Selden's judgment was undertaken during the period of time his belated appeal petition was pending. It is consistent with the Florida court's treatment of Selden's belated appeal petition to conclude that the petition does not qualify as an application for state postconviction or other collateral review within the meaning of the

Page 5

AEDPA's tolling statute. See Grove v. Secretary, 2009 WL 179626 (M.D. 2009)(unpublished)(similarly reasoning and concluding petitioner's belated appeal petition did not qualify as a statutory tolling application within the meaning of § 2244(d)(2)).

Moreover, Selden's belated appeal petition was improperly filed in the state trial court. Florida rules specify that a petition for belated appeal in a postconviction proceeding should be filed "in the appellate court to which the appeal should have been taken, " not the trial court. See McMillan v. Sec'y Dept. of Corr. 257 Fed. Appx. 249, 250 (11th Cir. 2007), (citing Fla.R.App.P. 9.141(c)(2)). Because Selden improperly filed his belated appeal petition in the state trial court, the petition did not toll the AEDPA limitations period while the petition was pending in that "wrong court, " and there was no tolling prior to the petition's being filed in the state district court of appeal. Furthermore, the refiling of Selden's belated appeal petition in the second district court of appeal did not toll the one-year limitations period because a request for out-of-time appeal is not a tolling application under § 2244(d)(2).

In Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 685 (2009), the Supreme Court concluded that direct review cannot conclude for purposes of § 2244(d)(1)(A) until the "availability of direct appeal to the state courts" is exhausted. "[W]here a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet 'final' for purposes of § 2244(d)(1)(A)." 129 S.Ct. at 686. However, the state district court of appeal denied Selden's petition for belated direct appeal. Therefore, none of the time the motion for belated appeal was pending tolled the one-year limitations period.

Page 6

Moreover, none of the time Selden's pro se petition for writ of habeas corpus dated February 28, 2009, filed in the Seventh Judicial Circuit, Volusia County, was statutorily tolled. That petition, which challenged matters underlying Selden's charges, was improperly filed because the circuit court where he filed his petition had no jurisdiction to review the legality of a conviction from another circuit. See Calloway v. State, 699 So. 2d 849, 850 (Fla. 3d DCA 1997)" '[A] circuit court has no jurisdiction to review the legality of a conviction in another circuit quoting State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988)); see also Johnson v. State, 947 So. 2d 1192, 1192-93 (Fla. 3d DCA 2007), and ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT