Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

PAUL J BRUNO,

Petitioner,

v. CASE NO. 4:10-cv-00277-RH -GRJ

SECRETARY, FLORIDA 

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________/

REPORT AND RECOMMENDATION

Petitioner, an inmate in the custody of the Florida Department of Corrections,

initiated this case by filing a pro se petition for writ of habeas corpus under 28 U.S.C. §

2254 on June 25, 2010. (Doc. 5).The case is presently before the Court on Doc. 14,

Respondent’s motion to dismiss based upon expiration of the one-year limitation period. 

Petitioner filed a response to the motion to dismiss, Doc. 16, and therefore this matter is

ripe for review. For the following reasons, it is recommended that the motion to dismiss

be granted.

I. Background

On June 19, 2007, Petitioner received a disciplinary conviction for Disrespect to

Officials, pursuant to a disciplinary report (“DR”), log number 564-071036. As a result

of the conviction, Petitioner forfeited gain time. Petitioner administratively appealed the

disciplinary decision by filing a formal grievance at the institution and appealing the

denial of the grievance to the Office of the Secretary. His administrative appeal was

denied and filed with the agency clerk on September 28, 2007. Twenty-seven days

Case 4:10-cv-00277-RH-GRJ Document 19 Filed 08/11/11 Page 1 of 6
Page 2 of 6

later, on October 26, 2007, Petitioner sought judicial review in state court by filing a

petition for writ of mandamus in Leon County Circuit Court. (Doc. 5, Exh. B). The

circuit court denied extraordinary relief on May 8, 2008. Petitioner sought review of the

decision by filing a petition for writ of certiorari with the First District Court of Appeal. 

The First DCA denied the petition for writ of certiorari on its merits on March 4, 2009,

with the mandate issuing March 31, 2009. (Doc. 5).

On March 18, 2010, 352 days after the mandate was issued, Petitioner filed a

petition for writ of habeas corpus with the First DCA, challenging the same disciplinary

proceedings. The First DCA per curiam denied the habeas petition on May 10, 2010.

That same day, Petitioner gave to prison officials for mailing a motion for enlargement

of time, asking this Court to grant a 60-day extension of time to file a federal petition for

writ of habeas corpus. (Doc. 1). This Court denied Petitioner’s motion as premature

and directed him to file a §2254 petition using forms provided by the clerk. (Doc. 2). 

Petitioner filed a Petition for Writ of Habeas Corpus on June 25, 2010, challenging the

same disciplinary proceedings. (Doc. 5).

II. Respondent’s Motion to Dismiss

Respondent filed a motion to dismiss the petition on January 24, 2011, arguing

that Petitioner did not timely file his federal petition for writ of habeas corpus within the

1-year deadline, as required by 28 U.S.C. § 2244(d)(1). Respondent contends that (1) 

the limitation period commenced on March 31, 2009, when the First DCA issued the

mandate denying a writ of certiorari; (2) Petitioner’s state habeas petition, filed March

10, 2010, did not toll the statute of limitations and therefore the federal petition is

untimely; and, (3) even if the state habeas petition did toll the statute of limitations, the

Case No: 4:10-cv-277-RH -GRJ

Case 4:10-cv-00277-RH-GRJ Document 19 Filed 08/11/11 Page 2 of 6
Page 3 of 6

federal petition was still filed beyond the 1-year statute of limitations. (Doc. 14).

In his response to the motion to dismiss, Petitioner contends that (1) the state

habeas petition tolled the statute of limitations; (2) collateral estoppel is not applicable

to the instant case; and, (3) the Department of Corrections violated his due process

rights. (Doc. 16).

III. Discussion

A one-year period of limitation applies to the filing of a habeas petition by a

person in custody pursuant to a state court judgment and runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct

review or the expiration of 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 the right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence. 

28 U.S.C. § 2244(d)(1). 

Respondent contends that § 2244(d)(1)(A) is the applicable statutory trigger, and

Petitioner does not challenge this assertion. In determining what procedures are 1

“The Eleventh Circuit has not determined which statutory trigger applies to § 1

2254 petitions challenging prison disciplinary proceedings.” Harris v. McNeil, 2008 U.S.

Case No: 4:10-cv-277-RH -GRJ

Case 4:10-cv-00277-RH-GRJ Document 19 Filed 08/11/11 Page 3 of 6
Page 4 of 6

encompassed in the direct review process for purposes of § 2244(d)(1)(A) where a

petitioner is challenging prison disciplinary proceedings, this Court previously has held

that direct review consists of the administrative appeal process set forth in the Florida

Administrative Code. Harris v. McNeil, 2008 U.S. Dist LEXIS 113783, *5-6 (N. D. Fla.

2008). This process consists of review by the warden of the institution and appeal to

the Office of the Secretary of the Department of Corrections. The direct review process

concludes when the Secretary’s response to the inmate’s appeal is filed with the state

agency clerk. Subsequent review by the circuit court is “in the nature of a collateral

proceeding.” Id.

In the instant case, Petitioner availed himself of the direct review process

provided by the Department of Corrections, and direct review concluded when the

Secretary’s response to Petitioner was filed with the DOC clerk on September 28, 2007.

(Doc. 14, Exh. F, p. 26). Absent any tolling of the statute of limitations, the one-year

period would expire on September 28, 2008. However, in the instant case, Petitioner

sought state court review of the disciplinary proceedings. The writ of mandamus was

filed by Petitioner on October 26, 2007 and served to toll the statute of limitations.

Twenty-seven (27) days elapsed between the conclusion of direct review and the tolling

of the statute of limitations. Tolling continued until March 31, 2009, when the 1 DCA st

issued its mandate denying a writ of certiorari. Because 27 of the 365 days had already

lapsed, Petitioner still had 338 days from March 31, 2009 to file a federal habeas

Dist LEXIS 113783 (N. D. Fla. 2008). Because the parties do not dispute that §

2244(d)(1)(A) is the appropriate trigger this Court does not need to address whether

another provision would apply.

Case No: 4:10-cv-277-RH -GRJ

Case 4:10-cv-00277-RH-GRJ Document 19 Filed 08/11/11 Page 4 of 6
Page 5 of 6

petition or initiate some other action that would toll the statute of limitations. Thus,

Petitioner had until March 5, 2010 to file his habeas petition or take some other action

that would have tolled the statute of limitations. Petitioner filed his state habeas petition

on March 18, 2010 and his federal habeas petition on June 25, 2010. Accordingly,

even assuming, arguendo, that the filing of a state habeas petition would have tolled

the statute of limitations, it would not make any difference in this case because the

state habeas petition was filed after the limitation period had expired. More importantly,

Petitioner’s Motion For Enlargement of Time , Doc.1, and Petitioner’s petition in this

case, Doc. 5, were filed on May 12, 2010 and June 25, 2010 respectively well beyond

the March 5, 2010 expiration of the limitation period.

Accordingly, Respondent’s motion to dismiss should be granted, and the habeas

petition should be dismissed.2

IV. Conclusion

For the foregoing reasons it is respectfully RECOMMENDED:

1. That Respondent’s motion to dismiss (Doc. 14) should be GRANTED.

2. That the Petition for a Writ of Habeas Corpus (Doc. 5) should be DISMISSED

with prejudice as untimely.

IN CHAMBERS this 11 day of August 2011. 

th

 s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

 Petitioner has not asserted grounds for applying equitable tolling, and to the 2

extent he did so in his motion for enlargement of time, Doc. 1, nothing alleged in that

filing gives rise to the extraordinary circumstances necessary to toll the limitation period

for equitable reasons.

Case No: 4:10-cv-277-RH -GRJ

Case 4:10-cv-00277-RH-GRJ Document 19 Filed 08/11/11 Page 5 of 6
Page 6 of 6

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case No: 4:10-cv-277-RH -GRJ

Case 4:10-cv-00277-RH-GRJ Document 19 Filed 08/11/11 Page 6 of 6