Brubacher v. Secretary, Department of Corrections, et al
Filing
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ORDER dismissing case Signed by Judge Roy B. Dalton, Jr. on 3/29/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JASON BRUBACHER,
Petitioner,
v.
CASE NO. 6:16-cv-554-Orl-37GJK
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
/
ORDER
This cause is before the Court on a petition for writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254 (Doc. 1). Thereafter, Respondents filed a response to the petition for
writ of habeas corpus in compliance with this Court’s instructions and with the Rules
Governing Section 2254 Cases in the United States District Courts (Doc. 12). Petitioner filed a
reply to the response (Doc. 15) and an amended reply (Doc. 17).
Petitioner alleges one claim for relief in his habeas petition. However, as discussed
hereinafter, the Court finds the petition is untimely filed.
I.
PROCEDURAL HISTORY
Petitioner was charged by information with two counts of sexual battery on a child
less than twelve years of age (counts one and two) and one count of lewd, lascivious, or
indecent act upon a child (count three) (Doc. 13-1 at 18). The State filed a notice of intent
to seek habitual felony offender penalties. Id. at 20. Petitioner entered a negotiated no
contest plea to the lesser included offenses of attempted sexual battery for counts one and
two and to count three as charged. Id. at 21-22. The trial court accepted the plea and on
May 21, 2001, sentenced Petitioner to two forty-eight-year terms of imprisonment as a
habitual felony offender (“HFO”) for counts one and two, with thirty years as a prison
releasee reoffender (“PRR”) and to a thirty-year term of imprisonment for count three as
an HFO with fifteen years as a PRR. Id. at 21-22, 27-34. Petitioner did not appeal.
On April 10, 2003,1 Petitioner filed a motion for post-conviction relief pursuant to
Rule 3.850 of the Florida Rules of Criminal Procedure. Id. at39-58. The trial court held an
evidentiary hearing on Petitioner’s motion, after which it denied the motion (Doc. Nos.
13-2 at 2-4, 50-106; 13-3 at 1-16). Petitioner appealed, and the Fifth District Court of Appeal
(“Fifth DCA”) affirmed per curiam on May 18, 2004 (Doc. 13-3 at 33). Mandate issued on
June 4, 2004. Id.
On February 15, 2008, Petitioner file a motion to correct illegal sentence pursuant
to Rule 3.800(a) of the Florida Rules of Criminal Procedure. Id. at 39-46. The trial court
denied the motion on March 7, 2008. Id. at 58. Petitioner appealed, and the Fifth DCA
affirmed per curiam on May 6, 2008. Id. at 61. Mandate issued on May 23, 2008. Id. at 63.
Petitioner filed a second Rule 3.800(a) motion on December 27, 2011. Id. at 66. The
trial court denied the motion on March 9, 2012. Id. at 66-68. Petitioner did not appeal.
This is the filing date under the “mailbox rule.” See Thompson v. State, 761 So. 2d
324, 326 (Fla. 2000) (“[W]e will presume that a legal document submitted by an inmate is
timely filed if it contains a certificate of service showing that the pleading was placed in
the hands of the prison or jail officials for mailing on a particular date, if that the [sic]
pleading would be timely filed if it had been received and file-stamped by the Court on
that particular date.”).
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However, Petitioner later filed a petition for belated appeal, which the Fifth DCA granted
on November 30, 2012. Id. at 64. The Fifth DCA affirmed per curiam on February 12, 2013.
Id. at 81. Mandate issued on March 8, 2013. Id. at 82.
Petitioner filed a third Rule 3.800(a) motion in 2013 which was denied on October
13, 2013 (Doc. 13 at 3). On April 8, 2014, the Fifth DCA affirmed per curiam (Doc. 13-3 at
112). Mandate issued on May 2, 2014. Id. at 113.
Petitioner filed a fourth Rule 3.800(a) motion on July 20, 2015. Id. at 115-24. The
trial court denied the motion (Doc. 13-4 at 4-5). The Fifth DCA affirmed per curiam on
December 15, 2015. Id. at 45. Mandate issued on January 8, 2016. Id. at 46. Petitioner filed
his federal habeas petition on February 16, 2016 (Doc. 1).
II.
TIMELINESS OF THE PETITION
Pursuant to 28 U.S.C. ' 2244:
(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
consideration 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 that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
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(D)
(2)
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
The time during which a properly filed application for State postconviction 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 section.
28 U.S.C. ' 2244(d).
Petitioner did not appeal his convictions and sentences. Consequently, the oneyear limitations period began to run on June 20, 2001, or thirty days after the time for
filing a direct appeal expired. See Fla. R. App. P. 9.140(b)(3); Gust v. State, 535 So. 2d 642
(Fla. 1st DCA 1988) (if a defendant does not appeal the conviction or sentence, judgment
becomes final when the 30–day period for filing a direct appeal expires). Therefore, under
' 2244(d)(1)(A), Petitioner had through June 20, 2002, absent any tolling, to file a federal
habeas petition.
Pursuant to ' 2244(d)(2), the one-year period would be tolled during the pendency
of any “properly filed” state post-conviction proceedings. Petitioner file his Rule 3.850
motion on April 10, 2003, after the one-year limitations period expired. Therefore, the
instant federal petition is untimely filed. 2
The Court is aware that Petitioner filed several other post-conviction motions in
the state court. However, those proceedings did not toll the statute of limitations because
the one-year period expired before Petitioner initiated those actions. See Sibley v. Culliver,
377 F.3d 1196, 1204 (11th Cir. 2004) (concluding “[a] state court filing after the federal
habeas filing deadline does not revive it”); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.
2000) (“A state-court petition . . . that is filed following the expiration of the limitations
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2
Petitioner does not allege any grounds for equitable tolling or any other reason
that the statute of limitations should be tolled or extended. Thus, Petitioner has not shown
that his untimely petition should be excused. Furthermore, any of Petitioner’s allegations
that attempt to excuse his failure to file the instant petition within the one-year limitations
period and that are not specifically addressed herein have been found to be without
merit.
III.
CERTIFICATE OF APPEALABILITY
This Court should grant an application for certificate of appealability only if the
Petitioner “makes a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2). To make such a showing “the petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y Dep’t of Corr.,
568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition
on procedural grounds without reaching the underlying constitutional claim, a certificate
of appealability should issue only when a Petitioner shows “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
period cannot toll that period because there is no period remaining to be tolled”).
Consequently, the instant habeas petition is untimely.
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correct in its procedural ruling.” Id.; Lamarca, 568 F.3d at 934. However, a prisoner need
not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
The Court concludes that Petitioner has not made the requisite showing in these
circumstances. Petitioner is not entitled to a certificate of appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED, and this case
is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a certificate of appealability.
3.
The Clerk of the Court is directed to enter judgment and close this case.
DONE AND ORDERED in Orlando, Florida, this 29th day of March, 2017.
Copies to:
OrlP-3 3/29
Jason Brubacher
Counsel of Record
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