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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RONALD BROOKS,

Petitioner,

vs. Case No. 3:10cv397/LAC/EMT

KENNETH S. TUCKER,1

Respondent.

___________________________________/

ORDER, REPORT AND RECOMMENDATION

This cause is before the court on Petitioner’s petition for writ of habeas corpus filed under

28 U.S.C. § 2254 (doc. 1). Respondent filed a motion to dismiss the petition as untimely, with

relevant portions of the state court record (doc. 18). Petitioner filed a response in opposition to the

motion (doc. 25).

This 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, it is the

opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter. 

It is further the opinion of the undersigned that the pleadings and attachments before the court show

that the petition should be dismissed as untimely.

I. BACKGROUND AND PROCEDURAL HISTORY

The procedural background of this case is established by the state court record (doc. 18,

Exhibits). Petitioner was charged in the Circuit Court in and for Escambia County, Florida, with 2

one count of robbery with a firearm (Ex. A). Pursuant to a written plea agreement, Petitioner

pleaded no contest to the charge (Ex. B at 30–44). At a hearing on January 17, 2007, the trial court

accepted the plea, adjudicated Petitioner guilty, and sentenced him to minimum mandatory term of

ten (10) years of imprisonment, with pre-sentence credit of 68 days (id. at 30–38, 114–20). 

Petitioner did not appeal the judgment (see doc. 1 at 2).

Kenneth S. Tucker succeeded Edwin G. Buss as Secretary for the Department of Corrections, and is

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automatically substituted as Respondent. See Fed. R. Civ. P. 25(d).

Hereinafter all citations to the state court record refer to the electronically filed exhibits to Respondent’s

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answer (doc. 18). If a cited page has more than one page number, the court cites to the “Bates stamp” page number.

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On August 11, 2008, Petitioner filed, through counsel, a motion to correct illegal sentence,

pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. C). On November 10,

2008, Petitioner filed a motion to withdraw his Rule 3.800(a) motion (Ex. D). The state circuit court

granted the motion to withdraw and dismissed the Rule 3.800(a) motion on March 2, 2009 (Ex. E).

OnNovember 20, 2008, Petitioner filed, through counsel, a motion for post-conviction relief,

pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. B at 1–5). On February 27,

2009, the state circuit court rendered an orderstriking Petitioner’s motion as facially insufficient (id.

at 6–7). The court granted Petitioner leave to file a facially sufficient motion within thirty (30) days

(id.). Petitioner filed a facially sufficient motion by the deadline (id. at 8–12). Following an

evidentiary hearing (id. at 55–105), the state circuit court denied the motion (id. at 106–12). 

Petitioner appealed the decision to the First DCA, Case No. 1D10-493 (see id. at 121; see also Ex.

F). The First DCA affirmed per curiam without written opinion, with the mandate issuing September

7, 2010 (Ex. G). Brooks v. State, 53 So. 3d 231 (Fla. 1st DCA 2010) (Table).

Petitioner filed the instant habeas action on October 7, 2010 (doc. 1 at 5). 

II ANALYSIS

Pursuant to the requirements set forth in 28 U.S.C. § 2244, as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110 Stat. 1214, which

became effective on April 24, 1996, 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. The limitation period runs 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.

Section 2244(d)(1).

Respondent contends the appropriate statutorytrigger for the federal limitations period in this

case is § 2244(d)(1)(A), the date on which the judgment of conviction became final by the

conclusion of direct appeal (doc. 18 at 5–7). Petitioner does not allege, nor do his claims suggest,

that a different trigger applies (see doc. 1 at 3; doc. 25). The trial court rendered Petitioner’s

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judgment and sentence on January 17, 2007, and it became final thirty (30) days later, on February

19, 2007. See Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) (holding that where

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petitioner did not seek direct review of his judgment of conviction or sentence, his judgment of

conviction (entered upon his guilty plea) became “final” for purposes of § 2244 on the date his

30-day right to appeal expired); Hampton v. State, 837 So. 2d 611 (Fla. 5th DCA 2003 (when

defendant did not directly appeal his conviction, the judgment and sentence became final 30 days

after they were rendered); Davis v. State, 693 So. 2d 700 (Fla. 2d DCA 1997) (judgment and

sentence become final when 30-day period to file notice of appeal expires); Gust v. State, 535 So.

2d 642 (Fla. 1st DCA 1988) (if defendant does not appeal the conviction or sentence, judgment

becomes final when the 30-dayperiod for filing direct appeal expires). Therefore, Petitioner had one

year from that date, or until February 19, 2008, to file his § 2254 petition. See Downs v. McNeil,

520 F.3d 1311, 1318 (11th Cir. 2008) (limitations period should be calculated according to

“anniversarymethod,” under which limitations period expires on anniversaryof date it began to run)

(citing Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)). Petitioner did

not file his federal petition on or before that date; therefore, it is untimely unless tolling principles

apply and render it timely.

Section 2244(d)(2) provides:

The time during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is pending

shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(2). In the instant case, neither of Petitioner’s post-conviction applications tolled

the federal limitations period, because each of them were filed after the one-year limitations period

expired. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Therefore, Petitioner’s

federal petition, filed on October 7, 2010, was untimely.

Petitioner has not shown that any other tolling principles apply, or that he is entitled to

federal review under any other exception to the time bar. Therefore, the § 2254 petition should be

dismissed with prejudice as time-barred.

According to the Florida rules governing appeal proceedings in criminal cases, Petitioner had thirty (30) days

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following rendition of the order imposing sentence to file a notice of appeal. In the instant case, the written order

imposing the judgment and sentence was rendered on January 17, 2007. See Fla. R. App. P. 9.020(h) (order is rendered

when signed, written order is filed with clerk of lower tribunal). The day the order was rendered is excluded from the

30-day calculation; therefore, the period for seeking an appeal began to run on January 18, 2007. See Fla. R. App. P.

9.420(f). Thirty (30) days from that date was February 17, 2007; however, because that day was a Saturday, the 30-day

appeal period did not expire until the following Monday, February 19, 2007. See id.

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III. CERTIFICATE OF APPEALABILITY

As amended effective December 1, 2009, § 2254 Rule 11(a) provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,”

and 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).” 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, the

undersigned recommends that the district court deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final order, the court

may direct the parties to submit arguments on whether a certificate should issue.” Thus, if there is

an objection to this recommendation by either party, that party may bring this argument to the

attention of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is ORDERED:

The clerk of court is directed to change the docket to reflect that Kenneth S. Tucker is

substituted for Edward G. Buss as Respondent.

Accordingly, it is respectfully RECOMMENDED:

1. That Respondent’s motion to dismiss (doc. 18) be GRANTED.

2. That the petition for writ of habeas corpus (doc. 1) be DISMISSED with prejudice

as untimely. 

3. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 30 day of August 2011. th

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. 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

objections shall be served upon the magistrate judge and all 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).

Case No.: 3:10cv397/LAC/EMT

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