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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RYAN THOMAS GREEN,

Petitioner,

v. Case No. 3:10cv418/MCR/MD

KENNETH S. TUCKER,

Respondent.1

_____________________________________________________________________

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to Title

28 U.S.C. § 2254 (doc. 1). Respondent filed an answer and relevant exhibits (docs.

15-17). On July 7, 2011, the court entered an order allowing petitioner thirty days to

respond to respondent’s answer (doc. 19). On October 4, 2010, the court issued an

order directing petitioner and respondent to file a memorandum addressing whether

the petition should be dismissed as untimely (doc. 21). Respondent filed a motion

to dismiss the petition on October 14, 2011, stating the petition is untimely and

petitioner has neither asserted nor is entitled to equitable tolling (doc. 22, p. 4). To

date, petitioner has not filed a response to respondent’s initial answer or a response

to the court’s October 4, 2010 order. The matter is referred to the undersigned

magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and

N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by Mr.

Green, it is the opinion of the undersigned that no evidentiary hearing is required for

the disposition of this matter, Rule 8(a) of the Rules Governing Section 2254 Cases

1

 Kenneth S. Tucker became Secretary of the Florida Department of Corrections on August

24, 2011, and is substituted as the respondent.

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in the United States District Courts. It is further the opinion of the undersigned that

the pleadings and attachments before the court show that the petition is untimely

and should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

The petitioner, Ryan Thomas Green, was indicted by grand jury in the Circuit

Court of Escambia County, Florida, on three counts: (1) first degree murder with a

firearm; (2) attempted first degree murder with a firearm; and (3) armed robbery

(doc. 15, ex. C, pp. 1-3).2

 The indictment stated Mr. Green, with a premeditated

design, murdered James Hallway by shooting him with a pistol and also attempted

to murder Christopher Phipps by shooting him with a pistol (ex. C, p. 1). It also

stated Mr. Green took Mr. Phipps’ keys and vehicle by force while carrying a pistol

(ex. C, p. 1). Mr. Green was tried by jury and adjudicated guilty on all counts on

January 11, 2006 (ex. C, pp. 379-80) (Escambia County Circuit Court case no. 03-

0817). The court sentenced Mr. Green to death on Count One with 1054 days of

credit time (ex. C, pp. 382-85). It sentenced him to life imprisonment without

possibility of parole on Counts Two and Three to run consecutively with Count One

and without credit time (ex. C, pp.386-87).

On January 24, 2006, Mr. Green, through appointed counsel, appealed the

conviction and sentence to the Supreme Court of Florida (ex. C, dkt. 451; ex. E). He

raised four issues (ex. E). On January 31, 2008, Supreme Court of Florida per curium

affirmed the conviction but vacated the death sentence and remanded the case for

imposition of life imprisonment without parole. Green v. State of Florida, 975 So.2d

1081 (Fla. 2008) (case no. SC06-211) (copy at ex. H). The court found that Mr. Green’s

death sentence rested on “a single aggravating circumstance”—the

contemporaneous conviction for attempted murder —while the trial court found, and

the Supreme Court agreed, that there were substantial mitigating factors, the most

2

 Hereafter all references to exhibits will be to docs. 15-17 unless otherwise noted.

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important being evidence of Mr. Green’s mental illness. Green, 975 So.2d at 1088. 

The court held that the sentence was disproportionate because “death is not

indicated in a single-aggravator case where there is substantial mitigation.” Id.

(quoting Almeida v. State of Florida, 748 So.2d 922 (Fla. 1999)). On April 7, 2008, the

trial court re-sentenced Mr. Green on count one to life imprisonment without parole

(ex. P, pp. 38). Mr. Green did not appeal (see ex. A).

On October 6, 2008, Mr. Green filed a motion to correct illegal sentence

pursuant to Rule 3.800, Florida Rules of Criminal Procedure (ex. J).3

 He raised two

claims: 1) that the court impermissibly imposed consecutive sentences for

attempted first degree murder and armed robbery because they arose from the same

occurrence; and 2) the court improperly calculated the sentence scoresheet. (Ex.

J, pp. 2-4). The trial court denied claim one and dismissed claim two as facially

insufficient on January 6, 2009 (ex. K). Mr. Green did not appeal.

On June 9, 2009, Mr. Green filed a pro se motion for post-conviction relief

pursuant to Rule 3.850, Florida Rules of Criminal Procedure, alleging four claims of

ineffective assistance of trial counsel and one claim of trial court error (ex. P, p. 1-

11). The Rule 3.850 court struck the motion as facially insufficient on July 22, 2009,

but it allowed him to submit a facially sufficient motion within sixty days. (Ex. P, p.

12-13) (citing Spera v. State of Florida, 971 So.2d 754 (Fla. 2007) (trial court abuses

its discretion when it fails to allow a defendant one opportunity to amend a facially

insufficient motion for post-conviction relief)). Mr. Green filed an amended motion

for post-conviction relief on September 14, 2009, again raising four claims of

3

 For purposes of 28 U.S.C. § 2244(d)(2), federal courts look to the applicable state law

governing filings to determine when a state application for post-conviction or other collateral review

was “properly filed”. See Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 364, 148 L. Ed. 2d 213 (2000);

Taylor v. Williams, 528 F.3d 847, 850 (11th Cir. 2008). Pursuant to the “mailbox rule,” which the Florida

courts apply to post-conviction pleadings filed by pro se prisoners, a motion is filed on the date it was

deposited in the prison's mail system. See Haag v. State, 591 So.2d 614, 617 (Fla.1992).

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ineffective assistance of counsel and one claim of trial court error (ex. P, pp. 14-20).4

On January 29, 2010, the Rule 3.850 court denied the claims on the merits, attaching

relevant portions of the record (ex. P, pp. 30-166).

Mr. Green, proceeding pro se, appealed claims one and two to the First District

Court of Appeal (“First DCA”), and raised a new claim alleging ineffective assistance

of trial counsel. (Ex. P, p. 168; Q). The State did not file an answer brief (ex. R). On

May 17, 2010, the First DCA per curiam affirmed the Rule 3.850 court’s decision. 

Green v. State of Florida, 38 So.3d 135 (Fla. 1st DCA 2010) (Table) (copy at ex. S). Mr.

Green’s motion for rehearing was denied on June 25, 2010, and the mandate issued

on July 13, 2010 (exs. T-V).

Mr. Green also filed a “motion to discharge natural person” on June 10, 2010

(ex. L). The court denied the motion on July 1, 2010 (ex. M). Mr. Green did not

appeal the decision, and his time to appeal expired on August 2, 2010.5

Mr. Green filed the instant petition for federal habeas corpus on October 19,

2010 (doc. 1).6 Respondent has not expressly waived the exhaustion requirement. 

See 28 U.S.C. § 2254(c).

DISCUSSION

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). A person in custody pursuant to a state court

4

 The stamp on the pleading clearly shows it was provided to prison officials for mailing on

September 14, 2009, despite being signed on September 9, 2009 (ex. P, p. 14).

5

 The thirtieth day after July 1, 2010 was Saturday, July 31, 2010. Therefore, time expired on

Monday, August 2, 2010.

6

 Under the federal “mailbox rule,” a pro se federal habeas petition is deemed to be filed on

the date it is delivered to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 275-76, 108 S.

Ct. 2379, 2384-85, 101 L. Ed. 2d 245 (1988); Alexander v. Sec’y, Dep’t of Corr., 523 F.3d 1291, 1294 n.4

(11th Cir. 2008).

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judgment must file a federal habeas corpus petition within one year from the latest

of:

(A) the date on which the judgment became final by the conclusion 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 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); see also McCloud v. Hooks, 560 F.3d 1223, 1229 (11th Cir.

2009) (calculating expiration of limitations period as one year from the date after the

judgment became “final” under § 2244(d)(1)); Johnson v. Fla. Dep’t of Corr., 513 F.3d

1328, 1331 (11th Cir. 2008) (same). “A judgment becomes ‘final’ on the date on which

the United States Supreme Court issues a decision on the merits of the petitioner's

direct appeal or denies certiorari, or after the expiration of the ninety days in which

the petitioner could file such a petition.” Ilarion v. Crosby, 179 Fed. Appx. 653, 654

(11th Cir. 2006) (citing Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir.2002)). According

to the tolling provision of § 2244(d), the time during which a “properly filed”

application for state postconviction or other collateral review is pending shall not

count toward any period of limitation. 28 U.S.C. § 2244(d)(2).

The trial court entered the corrected sentence as to Count One on April 7, 2008

(ex. P, pp. 38-47). Mr. Green did not appeal his corrected sentence to the First DCA

nor did he seek review in the Florida Supreme Court or the United States Supreme

Court. It is well established that when a Florida defendant does not directly appeal

his conviction, his conviction becomes final thirty (30) days after rendition of the

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order of judgment of conviction and sentence. See Fla. R. App. P. 9.140(b)(3); Walk

v. State, 707 So.2d 933 (Fla. 5th DCA 1998) (holding that if “a conviction and sentence

are not appealed, they become final 30 days after they are entered”); Gust v. State,

535 So.2d 642 (Fla. 1st DCA 1988) (holding that if defendant does not appeal

conviction or sentence, judgment of conviction and sentence become final when 30

day period for filing appeal expires). Accordingly, his conviction became “final” for

purposes of § 2244 on May 7, 2008. The federal habeas statute of limitations began

to run on that date. See 28 U.S.C. § 2244(d)(1).

Mr. Green filed his motion to correct illegal sentence 152 days later, on

October 6, 2008. The trial court denied the motion on January 6, 2009. This properly

filed motion tolled the statue of limitations until Mr. Green’s time to appeal the

decision expired thirty days later, on February 5, 2009. 28 U.S.C. § 2244(d)(2); see

Fla. R. Crim. P. 3.800(a) (movant may appeal the order within thirty days). It then ran

for 124 days until he filed his Rule 3.850 motion on June 9, 2009. The limitations

period was tolled until July 22, 2009, when the Rule 3.850 court struck the motion for

facial insufficiency. See, e.g., Smith v. Buss, 2011 WL 818157 at *6 (N.D. Fla. Feb. 4,

2011) (motion is not pending so as to toll limitations period when state court strikes

motion as facially insufficient). Mr. Green filed an amended Rule 3.850 motion fiftyfour (54) days later, on September 14, 2009. The pending motion tolled the

limitations period until July 13, 2010, upon issuance of the First DCA mandate

affirming the Rule 3.850 court’s decision. Additionally, his “motion to discharge

natural person,” filed after the amended Rule 3.850 motion, remained pending until

August 2, 2010. The period of limitations therefore ran for seventy-eight (78) days

until he filed the instant federal petition for writ of habeas corpus in this court on

October 19, 2010 (doc. 1). 

CONCLUSION

The undersigned concludes Mr. Green’s federal petition was filed 408 days

(152+124+54+78=408) after his conviction became final under § 2244, forty-three (43)

days beyond the one-year statutory limitations period. Furthermore, he has failed

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to demonstrate that any tolling provisions render his petition timely, or that he is

entitled to review under any exception to the time bar. Therefore, respondent’s

motion to dismiss should be granted, and the § 2254 petition should be dismissed.

CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District Courts provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” If a certificate is issued, “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule

11(a), Rules Governing Section 2254 Cases. A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules

Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595,

1603-04, 146 L. Ed. 2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

Rule 11(a) also provides: “Before entering the final order, the court may direct

the parties to submit arguments on whether a certificate should issue.” If petitioner

files an objection to this recommendation, he may bring this argument to the

attention of the district judge in his objections.

Accordingly, it is respectfully RECOMMENDED:

1. That respondent’s motion to dismiss (doc. 22) be GRANTED.

2. That the petition for writ of habeas corpus (doc. 1) challenging the

conviction and sentence in State of Florida v. Ryan Thomas Green, in the Circuit

Court of Escambia County, Florida, case number 03-0817, be DISMISSED WITH

PREJUDICE.

3. That a certificate of appealability be DENIED.

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 At Pensacola, Florida this 17th day of November, 2011.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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