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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DEVIN C. HAYES, 

Petitioner,

vs. Case No. 4:10cv339-RH/WCS

DEPT. OF CORRECTIONS, 

Respondent.

 /

REPORT AND RECOMMENDATION TO SUMMARILY DISMISS § 2254 PETITION

Petitioner, proceeding pro se, filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254. Doc. 1. An order was entered noting the petition was apparently

untimely. Doc. 5. Petitioner was directed to file a response to the order, submitting any

evidence or argument to demonstrate the petition was timely filed, and directed to file an

amended petition. Id.

Petitioner did not file a response addressing the issue of timeliness, but he filed

an amended petition. Doc. 6. 

As noted in the order (incorporated herein by reference), there is a one year

limitations period for filing a § 2254 petition which (absent exceptions previously
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enumerated) generally runs from "the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review." Doc.

5, p. 1 and n. 1 (citations omitted). The period is tolled for the time during which a

"properly filed" application for relief is pending in state court, or may be equitably tolled

in extraordinary circumstances. Id., pp. 1-2 (citing § 2244(d)(2), other citation omitted). 

I determined that Petitioner's judgment became final on August 16, 2006, so (absent

tolling or a later commencement date) the one year to file a § 2254 petition expired on

August 16, 2007. Id., p. 2 and n. 3 (citations omitted). 

According to the dates indicated in the initial petition and attachments thereto, it

appeared that all of Petitioner's potentially tolling documents were filed in state court

after the one year had already expired, when there was no time left to toll. Id., pp. 2-3

(citation omitted). The petition was therefore untimely unless there was a later

commencement date for the one year period or tolling activity earlier than indicated in

the petition. Id., p. 3. 

A review of the amended petition does not reveal any other dates relevant to the

timeliness analysis. Further, despite the discussion of the rules governing the

limitations period and a specific direction for Petitioner to respond to this issue, no

response was filed. The petition should be dismissed as untimely. 

Pursuant to § 2254 Rule 11(a), the court must issue or deny a certificate of

appealability when entering a final order adverse to a § 2254 petitioner. It is

recommended that Petitioner be denied a certificate of appealability, as he has not

made a substantial showing of the denial of a constitutional right. § 2253(c)(2). If

Case No. 4:10cv339-RH/WCS
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Petitioner files objections to this recommendation he may also address whether a

certificate of appealability should issue. § 2254 Rule 11(a). 

It is therefore respectfully RECOMMENDED that the § 2254 petition, challenging

the judgment of the Second Judicial Circuit, in and for Leon County, case 2004-CF-235,

be summarily DISMISSED as untimely, and that a certificate of appealability be

DENIED. 

IN CHAMBERS at Tallahassee, Florida, on March 11, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 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. 4:10cv339-RH/WCS