Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: statute of limitations

A Hollow Victory in Lozman v. City of Riviera Beach, Timeliness of Habeas Claims, and Disqualification of Judges Who Are Facebook Friends with Prosecutors

It’s already mid-week, but I wanted to pass along a few things that might interest you.  Remember the guy Fane Lozman who was fighting the City of Riveira Beach over marina fees owed for his houseboat?  Well, the United States Supreme Court issued an opinion in his case, Lozman v. City of Riviera Beach, No. 11-626.  The Supreme Court reversed the Eleventh Circuit, making Lozman the victor.  Too bad the City already destroyed his houseboat.

The Eleventh Circuit recently issued an en banc opinion in Michael Duane Zack v. Kenneth Tucker, No. 09-12717, wherein the Court held that the AEPDA statute of limitations applies claim-by-claim, rather than to the petition as a whole.  If you handle a lot of habeas cases, the opinion is worth a quick read.  My least favorite part of the opinion?  Judge Carnes’ concurrence, where he ridicules the position taken at oral argument by one of the attorneys as absurd.  Ouch.

Finally, attorneys throughout the State of Florida, civil and criminal alike, might want to monitor the case of Pierre Domville v. State, 4D12-556, where the Fourth District Court of Appeal has certified a question of great public importance to the Florida Supreme Court:  “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”  An article in the Palm Beach Post can be read here.

Timeliness of Petitions for Writ of Habeas Corpus

Pursuant to 28 U.S.C. sec. 2244(d), petitioners applying for a writ generally have 1 year in which to file their petition.  This 1 year statute of limitations runs from the latest of (a) the date that the judgment became final by direct review or the expiration of the time for seeking direct review; (b) the date on which an impediment to filing an application created by State action is removed, if the applicant was prevented from filing by such State action; (c) the date on which the constitutional right being asserted was initially recognized by the Supreme Court, if the right is newly recognized and has been made retroactively applicable to cases on collateral review; or, (d) the date on which the facts supporting the claim presented could have been discovered through due diligence.  See 28 U.S.C. sec. 2244(d)(1)(A)-(D).  However, the time during which properly filed motions for State postconviction relief or other collateral review with regard to the judgment is excluded from the calculation of the 1 year statute of limitations.  See 28 U.S.C. sec. 2244(d)(2).

Time calculations can be straightforward or complex, depending on such factors as whether the petitioner has directly appealed the judgment, whether the petitioner has filed motions for postconviction relief or other collateral review, whether the petitioner has “properly filed” motions for postconviction relief, whether newly recognized rights have been made retroactively applicable to cases on collateral review, and the “mailbox rule.”  For a brief discussion of timeliness of a petition and tolling, counsel may wish to review the recently published order in Williams v. Secretary, Dept. of Corr., No. 6:09-cv-1809-Orl-31KRS, 2011 WL 2173858 (M.D. Fla. June 2, 2011).  For a brief discussion of the “mailbox rule,” counsel may review the Eleventh Circuit opinion in Powles v. Thompson, 282 Fed. App’x 804 (11th Cir. 2008).  Finally, when calculating the number of tolled or untolled days between filings, counsel may also wish to consult www.timeanddate.com.

Habeas Corpus Relief in Federal Court

Persons convicted in State court proceedings have several options available to them after they are convicted.  These options include (1) filing a direct appeal in a court of appeal; (2) filing a postconviction motion in the trial court, such as a motion to withdraw a plea, or a motion to vacate, set aside, or correct the sentence; and, (3) filing a petition for writ of habeas corpus in Federal court.  Persons convicted in Federal court also have the same types of options.

Habeas corpus proceedings are quasi-civil in nature.  Although the conviction being attacked is criminal, and the caselaw surrounding habeas issues can overlap into the criminal arena, the proceedings occur in a civil context, and many of the procedural rules are civil in nature.  As a result, although the Government or the State may have had to carry the burden in the criminal phase of the proceedings, the burden often shifts to the petitioner during habeas proceedings.

For those wishing to consider filing a petition for writ of habeas corpus, the United States Code contains numerous statutes and rules that should be consulted beforehand.  These sections can be found at 28 U.S.C. secs. 2241-2266.  Generally, while persons attacking State court convictions file petitions under section 2254, persons attacking Federal court convictions file motions under section 2255.  Some of the topics addressed by the statutory sections include (1) the Court’s power to grant the writ and requirements of petitions (secs. 2241 and 2242); (2) procedural matters, such as compiling the record, evidence, and hearings (secs. 2243 and 2245-2250); (3) indigent petitioners (sec. 2250); (4) the one year statute of limitations (sec. 2244(d)(1)); (5) successive petitions (sec. 2244); (6) stays of state court proceedings (sec. 2251); (7) the role of the Attorney General in proceedings attacking state court convictions (sec. 2252); and, (8) appeals of decisions on petitions and certificates of appealability (sec. 2253).  In addition, counsel should note that there are specific Rules governing habeas proceedings under both sections 2254 and 2255.   Rules 1-12 Governing 2254 Cases and Rules 1-12 Governing 2255 Proceedings can be found in the United States Code immediately following the statutory sections.  A form petition for filing under section 2254 and a form motion for filing under section 2255 can also be found immediately after Rule 12 of the 2254 and 2255 Rules.

Persons convicted of capital crimes or their attorneys should consult the Special Habeas Corpus Procedures in Capital Cases, found at 28 U.S.C. secs. 2261-2266.


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