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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOSHUA LEE JONES,

Petitioner,

vs. Case No.: 3:11cv239/WS/EMT

SEC’Y, DEP’T OF CORR.,

Respondent. 

_____________________________________/

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254

(doc. 1). Respondent filed an answer asserting that the petition should be dismissed as untimely

(doc. 32). Respondent additionally contends one of Petitioner’s claims is procedurally barred, and

the remaining claims should be denied on the merits (id.). Respondent filed relevant portions of the

state court record with its answer (id., Exhibits). Petitioner was provided an opportunity to file a

reply to the answer (see doc. 33), but he has not done so. 

The case was referred to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see

also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(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 relevant procedural history of this case is established by the state court record (doc. 32).1

Petitioner was charged in the Circuit Court in and for Walton County, Florida, Case No. 2006-CF1

 Hereinafter all citations to the state court record refer to the exhibits submitted with Respondent’s answer (doc.

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

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799, with one count of trafficking in hydrocodone (14 grams or more but less than 28 grams) (Count

1) and one count of possession of cannabis (less than 20 grams) (Count 2) (Ex. A at 12). Following

a jury trial, Petitioner was found guilty as charged (Ex. A at 135–38, Ex. E). On December 6, 2007,

he was adjudicated guilty and sentenced to fifteen (15) years of imprisonment on Count 1 and a

concurrent term of five (5) years of imprisonment on Count 2, with pre-sentence jail credit of 62

days (Ex. A at 105–11, Ex. C). The court amended the judgment on January 29, 2008, to reduce the

sentence on Count 2 to time served (Ex. A at 155–59). 

Petitioner appealed the judgment and sentence to the Florida First District Court of Appeal

(“First DCA”), Case No. 1D07-6625 (Ex. A at 119, Ex. H). The First DCA affirmed the judgment

per curiam without written opinion on January 15, 2009 (Ex. J). Jones v. State, 1 So. 3d 180 (Fla.

1st DCA 2009) (Table). Petitioner did not seek further review.

On March 31, 2010, Petitioner filed, through counsel, a motion for post-conviction relief,

pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. K at 1–27)). On July 20,

2010, the state circuit court rendered an order striking the motion and allowing Petitioner an

opportunity to file an amended motion within sixty (60) days (id. at 28–36). On September 21,

2010, Petitioner filed, through counsel, a motion to file a belated amended Rule 3.850 motion and

an amended motion (id. at 85–91). The state circuit court granted the motion to file an belated

amended Rule 3.850 motion (id. at 120–22). The court summarily denied the amended motion on

December 6, 2010 (id. at 252–58). Petitioner appealed the decision to the First DCA, Case No.

1D10-6779 (Ex. K at 298, Ex. L). The appellate court affirmed per curiam without written opinion

on March 10, 2011, with the mandate issuing March 28, 2011 (Exs. M, N). Jones v. State, 56 So.

3d 771 (Fla. 1st DCA 2011) (Table).

Petitioner filed his federal habeas petition on May 11, 2011 (doc. 1 at 6). 

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:

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(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 limitations period is

§ 2244(d)(1)(A), the date Petitioner’s conviction became final (doc. 32 at 20). Petitioner does not

argue that any of the statutory triggers set forth in § 2244(d)(1)(B–D) apply. Therefore, the statute

of limitations will be measured from the date the judgment became final. See 28 U.S.C.

§ 2244(d)(1)(A).

The First DCA affirmed Petitioner’s judgment and sentence on January 15, 2009. Petitioner

did not seek review of the judgment in the United States Supreme Court; therefore, his conviction

became final upon expiration of the ninety-day period for doing so, April 15, 2009. See Chavers v.

Sec’y, Fla Dep’t of Corr., 468 F.3d 1273, 1274–75 (11th Cir. 2006) (judgment of conviction

becomes “final” after the expiration of the ninety-day period in which the petitioner could have filed

a petition for a writ of certiorari, which begins to run on the date of the appellate court’s affirmance

of the conviction, not the date of the appellate court’s mandate). Petitioner thus had one year from

that date, or until April 15, 2010, 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 186, 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:

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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). 

On March 31, 2010, after 349 days of the federal limitations period elapsed, Petitioner filed

a Rule 3.850 motion. Respondent concedes this was a tolling motion (doc. 32 at 20). The motion

was pending until March 28, 2011, upon issuance of the First DCA’s mandate affirming the lower

court’s denial of the motion. 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). 

The federal limitations clock began ticking again on March 29, 2011, and expired 16 days

later, on April 14, 2011 (349 + 16 = 365). Petitioner did not file his federal petition until May 11,

2011, after the limitations period expired.

Petitioner has not asserted any grounds for equitable tolling of the limitations period; nor has

he alleged he is entitled to a merits review through any recognized exception to the time bar. 

Therefore, his § 2254 petition should be dismissed with prejudice as untimely.

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

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

as untimely. 

2. That a certificate of appealability be DENIED.

At Pensacola, Florida, this 1st day of August 2012.

/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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