Filing 25

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)

Download PDF
Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION JACK RAY SMITH, Petitioner, v. CASE NO. 5:11-cv-00275-MP-GRJ EDWIN G. BUSS, Respondent. _____________________________/ ORDER 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: 1 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 § 2244(d)(2). Page 2 of 2 1. The magistrate judge's Report and Recommendation is rejected and this matter is referred back to the magistrate judge for further proceedings. 2. Respondent's motion to dismiss habeas petition as untimely (doc. 17) is DENIED. 3. 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?