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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TERINTHIUS R. GILES,

Petitioner,

vs. Case No. 5:11cv77/RS/EMT

KENNETH S. TUCKER,

Respondent.

___________________________________/

REPORT AND RECOMMENDATION

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

under 28 U.S.C. § 2254 (doc. 5). Respondent filed a motion to dismiss the petition as untimely, with

relevant portions of the state court record (doc. 15). Petitioner was provided an opportunity to

respond to the motion, but he declined to do so (see doc. 16).

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. 15,

Exhibits).1 On February 28, 2006, Petitioner was charged in the Circuit Court in and for Jackson

County, Florida, Case No. 2006-CF-0096, with one count of second degree murder with a firearm

(Ex. C). Petitioner pled nolo contendere to the charge, pursuant to a written plea agreement (Ex. F

at 55–68), and was adjudicated guilty and sentenced on March 21, 2006, to life imprisonment with

pre-sentence credit of 67 days (Ex. D). Petitioner did not appeal the judgment (see Ex. A).

On March 19, 2007, Petitioner filed a motion for post-conviction relief, pursuant to Rule

3.850 of the Florida Rules of Criminal Procedure (Ex. F at 1–17). The state court summarily denied

the motion in an order rendered January 3, 2008 (id. at 149–53). Over two years later, on April 8,

1

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

answer (doc. 15). If a cited page has more than one page number, the court cites to the “Bates stamp” page number. 

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2010, Petitioner filed a petition for belated appeal in the Florida First District Court of Appeal

(“First DCA”) (id. at 154–59). On September 13, 2010, the First DCA granted Petitioner leave to

file a belated appeal of the circuit court’s order (id. at 264). Giles v. State, 45 So. 3d 70 (Fla. 1st

DCA 2010). The First DCA then affirmed the circuit court’s decision per curiam without written

opinion, with the mandate issuing March 22, 2011 (Exs. I, J). Giles v. State, 54 So. 3d 976 (Fla. 1st

DCA 2011) (Table).

Petitioner filed the instant habeas action on March 16, 2011 (doc. 1 at 1). 

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 statutory trigger 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. 15 at 5). Petitioner does not argue that a different statutory trigger

for the federal limitation period applies. Therefore, the undersigned concludes the federal limitation

period began to run on the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review. 

The judgment and sentence in Petitioner’s case was rendered March 21, 2006 (Ex. D). That

judgment became final thirty (30) days later, on April 21, 2006.2

 See Bridges v. Johnson, 284 F.3d

2

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

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 March 21, 2006. See Fla. R. App. P. 9.020(h) (order is rendered

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1201, 1202 (11th Cir. 2002) (holding that where 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-day period for filing direct appeal

expires). Petitioner had one year from that date, or until April 21, 2007, to file his § 2254 petition. 

See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (limitations period should be calculated

according to “anniversary method,” under which limitations period expires on anniversary of 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, Petitioner filed a tolling motion (his Rule 3.850 motion)

on March 19, 2007, after 332 days of the federal limitations period expired. The limitations period

was tolled until February 3, 2008, the date his 30-day right to appeal the state circuit court’s order

expired. The federal limitations period expired 33 days later, on March 8, 2008. Any postconviction applications filed by Petitioner after that date, including his petition for belated appeal

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 March 22, 2006. See Fla. R. App. P.

9.420(f). Thirty (30) days from that date was April 21, 2006.

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filed April 8, 2010, did not qualify for statutory tolling.3 See Webster v. Moore, 199 F.3d 1256,

1259 (11th Cir. 2000). 

Petitioner filed the instant federal petition on March 16, 2011, more that three years after the

federal limitations period expired (see doc. 1). Therefore, the instant petition was untimely.

Petitioner has not shown that any 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.

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

3

 The Supreme Court held in Jiminez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681, 172 L. Ed. 2d 475 (2009)

that “where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral

review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of

§ 2244(d)(1)(A).” 555 U.S. at 121. In that limited circumstance, the judgment becomes final at the conclusion of the

out-of-time direct appeal or expiration of the time for seeking review of that appeal. Id. Neither the plain language of

§ 2244(d)(2) nor Supreme Court precedent extends this principle to out-of-time or belated appeals of collateral attacks.

See Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001); Gibson v. Klinger, 232 F.3d 799, 807 (10th Cir. 2000);

Fernandez v. Sternes, 227 F.3d 977, 979 (7th Cir. 2000); see also, e.g., Neal v. Secretary, Dep’t of Corr., No. 07-10272,

271 Fed. Appx. 893, 896, 2008 WL 833915, at *3 (11th Cir. Mar. 28, 2008) (unpublished) (because Neal filed his

petition for a belated appeal after his one-year limitation expired, the district court did not err denying Neal statutory

tolling under 28 U.S.C. § 2244(d)(2) while the petition for a belated appeal of his second Rule 3.850 motion was

pending); McMillan v. Secretary for Dep’t of Corr., No. 05-14202, 257 Fed. Appx. 249, 252–53, 2007 WL 4258652,

at *3 (11th Cir. Dec. 6, 2007) (unpublished) (habeas petitioner was not entitled to statutory tolling of the limitations

period during a 95-day period between the date a state court’s denial of his post-conviction motion became final and the

date he filed his motion for a belated appeal; regardless of the state court’s later actions granting his petition for belated

appeal and stating that its order was to be filed as a new notice of appeal, there was nothing filed in state court during

that 95-day period, and thus, there was nothing “pending” for those 95 days); Ilarion v. Crosby, No. 05-15358, 179 Fed.

Appx. 653, 654, 2006 WL 1208057, at *1 (11th Cir. May 5, 2006) (unpublished) (period during which no postconviction application is pending is not tolled because statutory tolling period only encompasses periods during which

there is a properly filed application); Jackson v. McNeil, No. 4:09cv404/MMP/MD, 2009 WL 3052132, at *3 n.4 (N.D.

Fla. Sept. 22, 2009) (unpublished); Laster v. McDonough, No. 3:07cv37/MCR/EMT, 2007 WL 4370302, at *6 (N.D.

Fla. Dec. 10, 2007) (unpublished); Simmons v. McDonough, No. 4:06cv245/MMP/WCS, 2007 WL 1308678, at *4 (N.D.

Fla. May 3, 2007) (unpublished).

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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 respectfully RECOMMENDED:

1. That Respondent’s motion to dismiss (doc. 15) be GRANTED.

2. That the amended petition for writ of habeas corpus (doc. 5) be DISMISSED with

prejudice as untimely. 

3. That a certificate of appealability be DENIED.

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

/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).

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