IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KERRY CUMMINGS,

Petitioner,

vs. Case No. 4:11cv195-MP/CAS

KENNETH S. TUCKER,

Respondent.1

 /

REPORT AND RECOMMENDATION TO DISMISS § 2254 PETITION

On May 2, 2011, Petitioner Kerry Cummings, proceeding pro se, filed a petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in the United States District

Court for the Southern District of Florida. Doc. 1. Petitioner challenges a conviction

and sentence imposed by the Second Judicial Circuit Court, Taylor County, on July 11,

2006, following a jury trial and conviction on three counts. Id.; see Doc. 15 Ex. A. 

The matter is referred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local

Rule 72.2(B). The pleadings and attachments before the Court show that the petition is

1

Kenneth S. Tucker succeeded Edwin G. Buss as Secretary of the Department of

Corrections and is automatically substituted as the Respondent. See Fed. R. Civ. P. 25(d).

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untimely and should be dismissed. See Rule 4, R. Gov. § 2254 Cases in U.S. Dist. Cts

(authorizing dismissal “[i]f it plainly appears from the petition and any attached exhibits

that the petitioner is not entitled to relief” in federal court).

Procedural History

On August 1, 2011, this Court directed Respondent to file an answer, motion, or

other response to the amended petition. Doc. 4. On January 31, 2012, Respondent

filed a motion to dismiss the petition as untimely, with attached exhibits. Doc. 15. 

Although given time to file a reply, Petitioner has not done so. See Doc. 17. 

Analysis

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

there is a one-year limitations period for filing a § 2254 petition challenging a state court

judgment. 28 U.S.C. § 2244(d)(1). The period 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.” Id. § 2244(d)(1)(A); see Clay v. United States, 537 U.S.

522, 527 (2003) (explaining that “[f]inality attaches when [the Supreme Court] affirms a

conviction on the merits on direct review or denies a petition for a writ of certiorari, or

when the time for filing a certiorari petition expires”). Later dates which may commence

the period are the date on which an unconstitutional impediment which prevented the

applicant from filing is removed; the date on which the constitutional right asserted was

recognized by the U.S. Supreme Court and made retroactive on collateral review; and

the date on which the factual predicate for the claim could have been discovered with

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due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D). The period is tolled for the time during

which a “properly filed” application for relief is pending in state court. Id. § 2244(d)(2).2

In this case, Petitioner’s conviction was affirmed on direct appeal on August 24,

2007. Cummings v. State, 963 So. 2d 230 (Fla. 1st DCA 2007); Doc. 15 Ex. D; online

docket for case number 1D06-4128 at www.1dca.org. Petitioner did not appeal this

decision and the mandate issued September 12, 2007. Doc. 15 Ex. E; see online

docket for case number 1D06-4128 at www.1dca.org. Petitioner’s judgment therefore

became final for AEDPA purposes on November 22, 2007, when the ninety-day time

period for seeking certiorari review in his direct appeal expired. See 28 U.S.C.

§ 2244(d)(1)(A); Sup. Ct. R. 13.

Over a year later, on December 8, 2008, Petitioner filed a post-conviction motion

in state court, a Rule 3.800(a) motion to correct illegal sentence. See Doc. 15 Exs. F,

M. At this point, the AEDPA one-year limitations period had expired, and the state postconviction motion did not toll the time to file his federal habeas petition. See, e.g.,

Hutchinson v. State of Fla., 677 F.3d 1097, 1098 (11th Cir. 2012) (“In order for that

§ 2244(d)(2) statutory tolling to apply, the petitioner must file his state collateral petition

before the one-year period for filing his federal habeas petition has run.”); Tinker v.

Moore, 255 F.3d 1331, 1335 n.4 (11th Cir. 2001), cert. denied, 534 U.S. 1144 (2002)

(“We remind petitioners that a properly and timely filed petition in state court only tolls

the time remaining within the federal limitation period.”); Webster v. Moore, 199 F.3d

2

The time may also be equitably tolled in rare cases and “only if a petitioner establishes

both extraordinary circumstances and due diligence.” Diaz v. Sec’y for Dep’t of Corr., 362 F.3d

698, 702 (11th Cir. 2004). 

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1256, 1259 (11th Cir. 2000) (“Under § 2244(d)(2), even ‘properly filed’ state-court

petitions must be ‘pending’ in order to toll the limitations period. A state-court petition

. . . that is filed following the expiration of the limitations period cannot toll that period

because there is no period remaining to be tolled.”). 

Conclusion

Because the § 2254 petition is untimely, Respondent’s motion to dismiss should

be granted. The § 2254 petition should be summarily dismissed. 

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases in the U.S. 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,” 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).” Rule 11(b) provides that a timely notice of appeal must still be filed, even if

the court issues a certificate of appealability. 

Petitioner cannot make a 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 (2000)

(explaining how to satisfy this showing) (citation omitted).3

 Therefore, the Court should

deny a certificate of appealability in its final order. Leave to appeal in forma pauperis

should also be denied, as an appeal would not be taken in good faith. See Fed. R. App.

3 As dismissal of the petition is recommended solely on the procedural basis of

timeliness, Petitioner must show “at least, that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529

U.S. at 484 (emphasis added). 

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P. 24(a)(3)(A) (providing that before or after notice of appeal is filed, court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis). 

The second sentence of Rule 11(a) provides that “[b]efore entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue.” Petitioner shall make any argument as to whether a certificate should

issue by filing objections to this report and recommendation.

Recommendation

It is therefore respectfully RECOMMENDED that Respondent’s motion to dismiss

(Doc. 15) be GRANTED, the § 2254 petition for writ of habeas corpus (Doc. 1) filed by

Kerry Cummings be SUMMARILY DISMISSED AS UNTIMELY, a certificate of

appealability be DENIED, and leave to appeal in forma pauperis be DENIED. 

IN CHAMBERS at Tallahassee, Florida, on August 7, 2012.

s/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

 

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.

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