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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RANDOLPH DANDRY,

Petitioner,

v. Case No. 3:10cv351/MCR/MD

KENNETH S. TUCKER,

Respondent.

_____________________________________________________________________

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 has filed a motion to dismiss the petition as

untimely (doc. 19). Petitioner filed a response stating his petition is timely and he

is entitled to relief (doc. 30). 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. Dandry, 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 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, Randolph Dandry, was charged by information in the Circuit

Court of Okaloosa County, Florida, with robbery without a weapon, a second degree

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felony (doc. 19, ex. F, p. 5).1 On August 7, 2003, Mr. Dandry appeared in court with

two other defendants (ex. B, pp. 55-61). He entered a plea of no contest to the

charge. The plea agreement called for a cap of 18 months imprisonment with the

opportunity to argue mitigating circumstances at a sentencing hearing (id. at 56-57). 

The prosecutor clarified and the court confirmed that the agreement did not indicate

probation, but the parties’ understanding was that probation would follow

imprisonment (id.). On September 15, 2003, the court sentenced Mr. Dandry to 18

months imprisonment followed by five years probation (id. at 64-65, 68-69) (Okaloosa

County Circuit Court case no. 03-698).

Mr. Dandry’s court-appointed counsel subsequently filed a motion to withdraw

the plea and a motion to withdraw as counsel, stating Mr. Dandry believed his

counsel improperly represented him (ex. B, pp. 41-43). The court granted both

motions and appointed him private counsel (id. at 46). Several days later, the court

rescinded its order granting the motion to withdraw the plea and set the matter for

an evidentiary hearing (id. at 53). On October 23, 2003, the court entered an order

acknowledging that the time to file an appeal expired on October 15, 2003; it

extended the deadline to December 15, 2003 (id. at 48). Counsel filed a notice of

belated appeal on October 27, 2003 (id. at 47). Despite the trial court’s order

extending the time to file an appeal, the First District Court of Appeal (“First DCA”)

ordered counsel to show cause why the appeal should not be dismissed as untimely

(ex. A, p. 1). On December 3, 2003, the First DCA dismissed the appeal because

counsel failed to respond (id. at 2). It also denied counsel’s motion to reinstate the

appeal (id. at pp. 3-6).

On January 14, 2004, the trial court held an evidentiary hearing on Mr.

Dandry’s motion to withdraw his plea (ex. B, pp. 81-86). At the hearing, counsel

orally withdrew the motion and announced a new agreement with the state wherein

Mr. Dandry’s sentence would be modified to 18 months imprisonment followed by

1

 Hereafter all references to exhibits will be to doc.19 unless otherwise noted.

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two years probation (id. at 82). The trial judge asked Mr. Dandry if that was his

understanding of the agreement and Mr. Dandry responded that it was (id. at 83-84). 

The court accepted the agreement and ordered the modification of probation (id. at

84; order at ex. B, p. 72).

On April 28, 2004, the First DCA revisited and granted Mr. Dandry’s motion for

belated appeal. Dandry v. State of Florida, 870 So.2d 963 (Fla. 1st DCA 2004) (copy

at ex. C). In a written opinion, it placed reliance on his counsel acknowledgment that

the failure to file a timely appeal was due solely to her negligence (ex. C, p. 2). The

May 14, 2004, mandate from the opinion granting the appeal served as the customary

notice of appeal in the circuit court (id. at 2,3).

While the appeal was pending, Mr. Dandry filed a notice in the First DCA of his

pending motion to correct sentencing error in the circuit court, filed pursuant to Rule

3.800(b), Florida Rules of Criminal Procedure (ex. D). The notice effectively stayed

the appeal until the Rule 3.800 motion was resolved. The circuit court denied the

motion after a hearing held on October 13, 2004 (ex. G). Mr. Dandry then filed a

motion for voluntary dismissal in the First DCA. On November 23, 2004, the First

DCA dismissed the appeal pursuant to Rule 9.350(b), Florida Rules of Appellate

Procedure (ex. E).

Mr. Dandry completed his 18-month imprisonment and was released on

probation on August 24, 2004 (ex. F, p. 103). The state filed an affidavit supporting

violation of probation on February 24, 2005, with a violation report stating Mr. Dandry

committed two new law violations arising out of a domestic dispute (ex. F, pp. 103,

105-06). The trial court held an evidentiary hearing on June 23, 2005 (ex. F, pp. 133-

166). It found that he violated his probation and sentenced him to fifteen years

imprisonment for the underlying second degree felony offense of robbery without

a weapon (ex. F, pp. 122, 164-65). Mr. Dandry appealed the judgment and sentence

to the First DCA (ex. F, p. 117).

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His counsel on appeal filed an Anders2 brief stating he was unable to make a

good faith argument that the trial court committed reversible error (ex. I). Mr. Dandry

then filed a pro se initial brief arguing the trial court committed reversible error

because his probation was imposed in contravention of his original plea agreement. 

He also argued it was reversible error to have a “substitute judge” revoke his

probation because, under the unique circumstances of the case, the judge was not

“thoroughly familiar” with the case (ex. J, pp. 13-17). On January 12, 2007, the First

DCA affirmed the trial court’s judgment and sentence. Dandry v. State of Florida,

947 So.2d 1164 (Fla. 1st DCA 2007) (Table) (copy at ex. K).

On November 16, 2006, Mr. Dandry filed a motion for post-conviction relief

pursuant to Rule 3.850, Florida Rules of Criminal Procedure, asserting three grounds

for relief (ex. L, pp. 1-17).3

 The Rule 3.850 court denied relief without evidentiary

hearing, finding that the record conclusively showed he was not entitled to relief (ex.

L, pp. 21-23). Mr. Dandry appealed the denial (ex. L, p. 72), and the First DCA per

curiam affirmed the Rule 3.850 court’s decision on February 20, 2008. Dandry v.

State of Florida, 978 So.2d 161 (Fla. 1st DCA 2008). The mandate issued on April 24,

2008 (ex. PD-6).

On December 15, 2008, Mr. Dandry filed a motion to correct sentence pursuant

to Rule 3.800(a), Florida Rules of Criminal Procedure (ex. P, pp. 1-49). He 

challenged the validity of the original plea agreement, alleged sentencing scoresheet

errors, and asserted his sentence was disproportionate (id.). The Rule 3.800 court

denied the motion without a hearing on March 14, 2009 (ex. P, pp. 62-63). It stated

that all but one of the claims were not cognizable in a Rule 3.800(a) motion, and his

2

 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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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claim regarding a scoresheet error, while cognizable, was meritless (id.). Mr. Dandry

appealed to the First DCA, which per curiam affirmed the court’s decision on June

25, 2009 (ex. Q). The mandate issued on July 1, 2009 (id.).

Mr. Dandry submitted a second Rule 3.850 motion on November 5, 2009 (ex.

R, pp. 1-19). He alleged his trial counsel was ineffective for failing to move to

dismiss the 2003 information (id.). On January 22, 2010, the Rule 3.850 court denied 

the motion, stating: “In addition to being untimely, the instant claims are without

merit and contradicted by the record.” (Ex. R, pp. 30-31). Mr. Dandry appealed (ex.

T), and the First DCA per curiam affirmed the Rule 3.850 court’s decision on June 14,

2010 (ex. U). The mandate issued on June 14, 2010 (ex. V).

Mr. Dandry filed the instant petition for federal habeas corpus on September

7, 2010 (doc. 1).4

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

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;

4

 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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(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) (unpublished opinion) (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). 

Although the federal statute does not define “properly filed,” the United States

Supreme Court has construed the phrase. See Artuz v. Bennett, 531 U.S. 4, 121 S.

Ct. 361, 148 L. Ed. 2d 213 (2000); Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807,

161 L. Ed. 2d 669 (2005); see also Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1315-

16 (11th Cir. 2006). The Court stated in Artuz that “an application is ‘properly filed’

when its delivery and acceptance are in compliance with the applicable laws and

rules governing filings.” 531 U.S. at 8, 121 S. Ct. at 364. The laws and rules about

filings generally prescribe the form of the document, the time limits on its delivery,

and the court and office in which it must be filed. Id. Importantly, an application that

was erroneously accepted (i.e. it did not comply with procedural requirements) will

be pending, but it will not be “properly filed.” Artuz, 531 U.S. at 9, 121 S. Ct. at 364. 

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Federal courts must give “due deference” to state procedural rules governing filings

to determine whether an application for post-conviction relief is “properly filed”

under § 2244(d)(2). See Wade v. Battle, 379 F.3d 1254, 1260 (11th Cir. 2004). Though

deference only applies when the procedural rules are “firmly established and

regularly followed,” that a state procedural rule is discretionary does not necessarily

disqualify it as a “firmly established” and “regularly followed” rule. See Siebert v.

Campbell, 334 F.3d 1018, 1025 (11th Cir. 2003); Beard v. Kindler, __ U.S. __, 130 S. Ct.

612, 618, 175 L. Ed. 2d 417 ( 2009). The Supreme Court has held that when a state

court rejects a petitioner's post-conviction petition as untimely, “that is the end of

the matter for purposes of § 2244(d)(2),” because “time limits, no matter their form,

are ‘filing conditions.’” Pace, 544 U.S. at 414, 125 S. Ct. at 1812 (quoting § 2244(d)(2)).

The parties do not contend the statutory trigger should be a date other than

that prescribed in § 2244(d)(1)(A): the date on which the judgment became final for

AEDPA purposes. Instead, they disagree on when the judgment became final. 

Respondent uses November 23, 2004—the date the First DCA granted Mr. Dandry’s

motion to voluntarily dismiss his belated appeal—as the statutory (doc. 19, p. 5). Mr.

Dandry contends the proper trigger is April 12, 2007: ninety days after the First DCA

affirmed the trial court’s order revoking his probation and imposing a new sentence

(see doc. 30, p. 2). Mr. Dandry contends the sentence associated with the revocation

of probation constitutes a “re-sentencing” (id.).

Although the term “re-sentence” is used inconsistently, Mr. Dandry’s

argument is persuasive. The Eleventh Circuit has held that the “AEDPA’s statute of

limitations begins to run from the date both the conviction and the sentence the

petitioner is serving at the time he files his application become final because

judgment is based on both the conviction and the sentence.” Ferreira v. Sec’y, Dep’t

of Corr., 494 F.3d 1286, 1293 (11th Cir. 2007) (relying on Burton v. Stewart, 549 U.S.

147, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007)); see also Ferreira, 494 F.3d at 1292 (“the

judgment to which [section 2254(a)] refers is the underlying conviction and most

recent sentence that authorizes the petitioner’s current detention”) (emphasis

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added). Thus, if a petitioner is re-sentenced, then his AEDPA statute of limitations

would reset on expiration of the opportunity for direct review of the new or amended

judgment re-sentencing him.

Section 948.06, Florida Statutes, governing violation of probation, does not

use the term “re-sentence.” It states in relevant part:

(e) After such hearing, the court may revoke, modify, or continue the

probation or community control or place the probationer into

community control. If such probation or community control is revoked,

the court shall adjudge the probationer or offender guilty of the offense

charged and proven or admitted, unless he or she has previously been

adjudged guilty, and impose any sentence which it might have

originally imposed before placing the probationer or offender on

probation or into community control.

Fla. Stat. § 948.06(e). However, some Florida courts use the term “re-sentence”

instead of “sentence” to describe a defendant’s new sentence after a violation of

probation. See, e.g., State of Florida v. Payne, 404 So.2d 1055, 1056 (Fla. 1981) (“one

who has been sentenced to a period of incarceration and then given a period of

probation may, upon revocation of his probation, be re-sentenced to any term which

might originally have been imposed”), Smith v. State of Florida, 637 So.2d 84 (Fla.

5th DCA 1994) (“The court, upon finding the violation to have occurred, revoked the

probation imposed for each count and resentenced appellant on each charge.”). 

Ultimately, Mr. Dandry’s petition is untimely under both parties’ theories. 

Nevertheless, the undersigned uses April 12, 2007, as the date his judgment became

final, thus triggering the start of the limitations period.

Mr. Dandry’s first Rule 3.850 motion was filed on November 16, 2006, while his

appeal from the court’s order revoking probation was still pending. This appeal

tolled the limitations period until the mandate issued on April 24, 2008. See Nyland

v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (where Florida petitioner appeals trial

court's denial of post-conviction application, application remains pending until

issuance of the mandate by the appellate court).

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The limitations period ran for 235 days until December 15, 2008, when Mr.

Dandry filed his Rule 3.800(a) motion to correct sentence. See Alexander v. Sec’y,

Dep’t of Corr., 523 F.3d 1291, 1297 (11th Cir. 2008) (a motion under Fla. R. Crim. P.

3.800(a) tolls the limitations period if it raises a challenge of legal error). That motion

tolled the statute of limitations until the mandate issued on July 1, 2009.

Mr. Dandry’s assertion that he had “ample time remaining” from the lawful

trigger to file his federal habeas petition incorrectly characterizes his second Rule

3.850 motion as a tolling motion. (See doc. 30, p. 2). The Rule 3.850 court denied

that motion as untimely (ex. R, p. 30 (“In addition to being untimely, the instant

claims are without merit. . ..”)), and the First DCA affirmed the decision (ex. U). 

Because timeliness is a filing condition, the petition was not properly filed so as to

toll the statute of limitations. See Pace, 544 U.S. at 414, 125 S. Ct. at 1812. The

court’s decision to alternatively consider the merits does not change the result. The

Eleventh Circuit has held that consideration on the merits alone cannot convert an

untimely post-conviction motion into a properly filed motion for tolling purposes. 

Gorby v. McNeil, 530 F.3d 1363, 1367 (11th Cir. 2008); see also Sweet, 467 F.3d at 1318

(“[W]hen a state court unambiguously rules that a post-conviction petition is

untimely under state law, we must respect that ruling and conclude that the petition

was not ‘properly filed’ for the purposes of § 2244(d)(2), regardless of whether the

state court also reached the merits of one of the claims.”). Therefore, there were no

properly filed pending motions after July 1, 2009, and the statute of limitations

expired 130 days later on November 9, 2009.5

5

 The one hundred thirtieth day after July 1, 2009 was Sunday, November 8, 2009. Therefore, time

expired on Monday, November 9, 2009.

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CONCLUSION

The undersigned concludes Mr. Dandry’s federal petition was filed almost ten

months after the statute of limitations expired. Neither his petition nor his answer

contend 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.

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Accordingly, it is respectfully RECOMMENDED:

1. That respondent’s motion to dismiss (doc. 19) be GRANTED.

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

conviction and sentence in State of Florida v. Randolph Dandry, in the Circuit Court

of Okaloosa County, Florida, case number 03-698, be DISMISSED WITH PREJUDICE.

3. That a certificate of appealability be DENIED.

 At Pensacola, Florida this 9th day of December, 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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