Rodriguez v. Secretary, Department of Corrections et al

Middle District of Florida, flmd-8:2016-cv-02992

ORDER denying {{10}} Respondent's Motion to Dismiss, directing Respondent file supplemental response not later than 11/29/2019, directing Petitioner to reply thirty (30) days after supplemental response is filed, and directing Clerk to administratively close case in accord with the attached order. Signed by Judge William F. Jung on 9/30/2019. (CCB)

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Pageld 722 · UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JUAN IVAN RODRIGUEZ, Petitioner, -VS- Case No. 8:16-cv-2992-T-02SPF SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent ORDER Mr. Rodriguez, a Florida prisoner, filed, through counsel, a Petition for Writ of Habeas Corpus under 28 U.S.C. $ 2254 (hereinafter "petition") on October 24, 2016, in which he challenges convictions for five counts of DUI manslaughter and five counts of reckless driving, lesser of vehicular homicide, entered in 2005 in Polk County, Florida (Doc. 1). Respondent moves to dismiss the petition as time- barred (Doc. 10), which Mr. Rodriguez opposes (Doc. 13). As discussed below, the petition is timely. Discussion The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") created a limitation period for · petitions for writof habeas corpus filed pursuant to 28 U.S.C. § 2254. "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... the date on which the judgment 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). Additionally, "[t]he 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 PageID 723 not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The parties agree that Mr. Rodriguez'sjudgment of conviction became final on January 23, 2007, ninety (90) days after the appellate court affirmed his convictions on October 25, 2006 (Respondent's Ex. 7). See Bond v. Moore, 309 F.3d 770.(11th Cir. 2002) (finding that the AEDPA limitation period did not begin to run until the 90-day window during which (the $ 2254 petitioner] could have petitioned the United States Supreme Court for a writ of certiorari expired). The AEDPA limitation period started, and sixty- four (64) days of the period elapsed before it was tolled on March 28, 2007, when Mr. Rodriguez filed his motion for post conviction relief under Rule 3.850, Fla.R.Crim.P.(Respondent's Ex. 9). The limitation period remained tolled until the state appellate court issued its mandate affirming the denial of the Rule 3.850 motion on January 28, 2016. See Woulard v. Sec'y, Dep't of Corr., 707 F. App'x 631,633 (11th Cir. 2017) ("In Florida, a state post-conviction motion is pending until the appropriate appellate court issues the mandate for its order affirming a state trial court's denial of the motion."); Lawrence v. Florida, 549 U.S. 327, 331–32 (2007) (AEDPA clock resumed running when state appellate court's mandate issued disposing of the motion for post-conviction relief).' Another two hundred seventy (270) days of the limitation period elapsed before Mr. Rodriguez filed his federal habeas petition on October 24, 2016. Therefore, a total of only three hundred thirty-four (334) days of the limitation period elapsed before Mr. 'In concluding that the petition is untimely, Respondent incorrectly included the time between the dates on which the state circuit court denied the Rule 3.850 motion (initially then after remand) and the dates Petitioner filed his notices of appeal (see Doc. 10, p. 7). See Evans v. Chavis, 546 U.S. 189, 141 (2006) ("The time that an application for state postconviction review is 'pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.") (citing Carey v. Saffold, 536 U.S. 214 (2002)). PagelD 724 Rodriguez filed his federal habeas petition. Accordingly, the petition is timely. It is therefore ORDERED that: 1. Respondent's motion to dismiss (Doc. 10) is DENIED. 2. Not later than November 29, 2019, Respondent must file a supplemental response addressing the grounds alleged in the petition. Mr. Rodriguez has thirty (30) days from the date the supplemental response is filed to reply. 3. This action is ADMINISTRATIVELY CLOSED. The Clerk must re-open this action when briefing is complete. DONE AND ORDERED in Tampa, Florida on ber 30 2019. Wellness WILLIAMF. JUNG United States District Judge Copies to: Counsel of Record