SMITH v. BUSS
ORDER: 23 REPORT AND RECOMMENDATION is REJECTED and this matter REFERRED back to magistrate judge for further proceedings. 17 Motion to Dismiss as Untimely is DENIED; Petitioner's 22 Motion to Dismiss Respondent's untimely and fraudulent motion is DENIED as moot. Signed by SENIOR JUDGE MAURICE M PAUL on 10/1/2012. (jws)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
JACK RAY SMITH,
CASE NO. 5:11-cv-00275-MP-GRJ
EDWIN G. BUSS,
This cause comes on for consideration upon the magistrate judge's Report and
Recommendation dated June 28, 2012. (Doc. 23). The parties have been furnished a copy of the
Report and Recommendation and have been afforded an opportunity to file objections pursuant
to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of any
timely filed objections.1
Having considered the Report and Recommendation, and any objections thereto timely
filed, I have determined that the Report and Recommendation should be rejected.
Accordingly, it is now ORDERED as follows:
Petitioner objects to the Report and Recommendation and asserts that his petition for writ of
habeas corpus was timely filed. Specifically, petitioner argues that based upon Thompson v. Sec’y, Dep’t
of Corr., his July 30, 2010 state writ of habeas corpus tolls the limitations period. 595 F. 3d 1233 (11th
Cir. 2010). The Eleventh Circuit was clear in Thompson that "[w]hether an application is properly filed is
distinct from whether the application's claims are meritorious or procedurally barred." 595 F.3d at 1236.
In Estes v. Chapman, the Eleventh Circuit "concluded that a motion to vacate a sentence was ‘properly
filed' even though the state court ultimately lacked jurisdiction to modify the defendant's sentence. As the
State conceded, the Georgia court had initial jurisdiction to determine whether it had jurisdiction to
modify the sentence, and the motion otherwise complied with the filing requirements." Thompson, 595
F.3d at 1236 (citing Estes v. Chapman, 382 F.3d 1237, 1241 (11th Cir. 2004)). Thus, like Thompson and
Estes, petitioner invoked the wrong statutory vehicle. However, the state habeas petition met the state
procedural and filing requirements on its face as a state habeas petition. As such, petitioner's July 30,
2010 state habeas petition was properly filed for purposes of triggering the tolling provisions of §
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The magistrate judge's Report and Recommendation is rejected and this matter is
referred back to the magistrate judge for further proceedings.
Respondent's motion to dismiss habeas petition as untimely (doc. 17) is DENIED.
Petitioner's motion to dismiss respondent's untimely and fraudulent motion (doc.
22) is DENIED as moot.
DONE AND ORDERED this
1st day of October, 2012
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
Case No: 5:11-cv-00275-MP-GRJ
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