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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LAMAR D HODGES,

Petitioner,

v. CASE NO. 4:11-cv-139-MP-GRJ

EDWIN BUSS,

Respondent.

_____________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by fling a Petition for a Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 challenging a Leon County conviction and sentence for

burglary of a dwelling, aggravated assault with a deadly weapon, and felony battery, for

which he is serving a 15-year sentence. (Doc. 1.) Now pending before the Court is 1

Respondent’s motion to dismiss the Petition as time-barred. (Doc. 14.) Petitioner has 

filed a response to the motion. (Doc. 15.) Upon due consideration, the Court

recommends that the motion be granted.

2

Petitioners whose convictions became final after the effective date of the AEDPA

have a one-year period within which to seek federal habeas corpus review of their

convictions. The one-year limitations period begins to run, inter alia, from “the date on

 Petitioner received 5-year concurrent sentences for the assault and battery 1

charges. These sentences completely expired prior to the filing of the instant habeas

petition and are not open to collateral attack by federal habeas. (Doc. 14, Exh. G); 28

U.S.C. § 2254(a); Lackawanna County Dist. Atty v. Coss, 532 U.S. 394, 401 (2001).

 Because the Court may resolve the Petition on the basis of the record, the 2

Court has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254.

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which the judgment became final by the conclusion of direct review or the expiration of

the time for seeking such review[.]” The one-year limitations period is statutorily tolled

during the pendency of a properly-filed state application for post conviction relief, and

may be equitably tolled in appropriate “extraordinary circumstances.” 28 U.S.C.

§ 2244(d)(2); Steed v. Head, 219 F.3d 1298, 1300 (11 Cir. 2000). th

 After violating his probation, Petitioner was sentenced on April 7, 2005 to 15

years in prison for the burglary of a dwelling charge and 5 years each, concurrent, on

the assault and battery charges. (Doc. 14, Exh. G.) (hereafter “Resp. Exh.”). The

Florida First District Court of Appeal affirmed the conviction and sentence on May 17,

2006. (Resp. Exh. I.); Hodges v. State, 929 So. 2d 1057 (table) (Fla. 1 DCA 2006). st

Petitioner’s conviction became final 90 days later, on August 15, 2006, when the time

for filing a petition for a writ of certiorari in the Supreme Court expired. See Bond v.

Moore, 309 F.3d 770 (11 Cir. 2002) (Petitioner has ninety days to seek certiorari in th

Supreme Court after direct review in state courts).

During the pendency of his direct appeal, Petitioner filed a pro se motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on August

29, 2005. (Resp. Exh. J.) The trial court denied the motion without prejudice, and

Petitioner filed a pro se motion for voluntary dismissal on December 19, 2005, which

was granted on January 4, 2006. (Resp. Exhs. K, L.) 

After the conclusion of his direct appeal, Petitioner filed on September 21, 2006

another pro se Rule 3.850 motion arguing six grounds. (Resp. Exh. M.). On January

25, 2007, Petitioner filed a memorandum of law and facts and an addendum to his

motion adding grounds seven and eight. (Resp. Exh. N.) On May 17, 2007, Petitioner

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filed another addendum adding a ninth ground. (Resp. Exh. O.)

By written order dated June 14, 2007, the trial court denied grounds one through

eight as untimely. Ground nine was addressed separately and denied as procedurally

barred because it should have been raised on direct appeal. (Resp. Exh. P.) On

February 8, 2008, the Florida First District per curiam affirmed without written opinion;

mandate issued April 1, 2008. (Resp. Exh. S); Hodges v. State, 976 So. 2d 1099

(table) (Fla. 1 DCA 2008). st

Petitioner filed another pro se Rule 3.850 motion on February 4, 2010. (Resp.

Exh. T.) It was denied as untimely on August 4, 2010. (Resp. Exh. V.) The First DCA

affirmed December 8, 2010; mandate issued January 4, 2011. (Resp. Exh. X); Hodges

v. State, 49 So. 3d 1268 (Table) (Fla. 1 DCA 2010). st

Petitioner filed the instant petition for federal habeas relief on April 4, 2011.

(Doc. 1.)

Petitioner’s conviction and sentence became final for AEDPA purposes on

August 15, 2006. The 365-day statute of limitations period ran for 274 days, until May

17, 2007, when Petitioner filed his addendum to his Rule 3.850 motion, which contained

ground nine, the only ground not dismissed by the postconviction court as untimely. 

The 3.850 motions filed by Petitioner and dismissed as untimely were not “properly

filed” under the AEDPA and did not toll the limitations period. See Pace v. DiGuglielmo,

544 U.S. 408, 413-17 (2005) (“[W]e hold that time limits, no matter their form, are ‘filing’

conditions. Because the state court rejected petitioner’s [postconviction] petition as

untimely, it was not ‘properly filed,’ and he is not entitled to statutory tolling under

§ 2244(d)(2).”) The statute of limitations was tolled until April 1, 2008, when the

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mandate issued in Petitioner’s appeal of the denial of his post-conviction motion. The

limitations period ran until its expiration 91 days later on Monday, July 2, 2008. Even if 3

the limitations period was tolled from September 21, 2006 – when Petitioner filed the

3.850 motion to which he added ground nine on May 17, 2007 – the statute of

limitations would still have expired before the instant habeas petition was filed, as

Petitioner did not “properly file” any state motions for postconviction relief or other

collateral review which would toll the statute of limitations. Accordingly, the instant

federal habeas petition, which Petitioner provided to prison officials for mailing on April

4, 2011, is untimely. 

In his response, Petitioner contends that the “fundamental miscarriage of justice

resulting in the conviction of petitioner who is actually innocent” exception should apply. 

(Doc. 15.) Petitioner appears to argue that the exception to the dismissal of claims that

are procedurally defaulted should apply to his case. These exceptions do not apply in

the instant case, but even if the response was construed as a request for equitable

tolling, Petitioner has failed to allege any extraordinary circumstances that prevented

him from timely filing his claim. To the extent Petitioner asserts “newly discovered

evidence” in the form of victim/witness recantations (Doc. 1), this information was

known to Petitioner since at least August 29, 2005, when Petitioner asserted in his first,

premature motion for postconviction relief that the victim/witness recanted her

statement that Petitioner had burglarized her home. (Exh. J, pp. 9-10.) The instant

petition is time-barred and Petitioner has failed to demonstrate entitlement to equitable

The last day for filing fell on Sunday, July 1, 2008. 3

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tolling.

For the foregoing reasons it is respectfully RECOMMENDED that the motion to

dismiss the petition as time-barred, Doc. 14, be GRANTED, and that a certificate of

appealability be DENIED.

IN CHAMBERS this 30 day of January 2012. th

s/ Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), 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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