Conley v. Secretary, Department of Corrections (Charlotte County)

           UNITED STATES DISTRICT COURT                              
             MIDDLE DISTRICT OF FLORIDA                              
                   TAMPA DIVISION                                    

PAUL R. CONLEY,                                                           

Petitioner,                                                          

v.                                     Case No. 8:21-cv-2681-CEH-SPF      

SECRETARY, DEPARTMENT                                                     
OF CORRECTIONS,                                                           

Respondent.                                                          
                                                   /                 

                        ORDER                                        

Petitioner, formerly a Florida inmate, initiated this action by petitioning for the 
writ of habeas corpus under 28 U.S.C. § 2254 (“petition”) (Doc. 1). He subsequently 
filed an amended petition in which he challenges convictions for tampering with a 
witness, aggravated battery, aggravated assault, felony battery, criminal mischief, and 
violation of pretrial release (Doc. 6). Respondent moves to dismiss the petition as time 
barred (Doc. 15), which Petitioner opposes (Doc. 16). Upon consideration, the petition 
will be denied as time barred and without merit.                          
                  Procedural Background                              
On  February  22,  2019,  Petitioner  pleaded  guilty  to  all  charges  and  was 
sentenced to 7.5 years in prison followed by two years on probation (Doc. 15-2, Exs. 
3-4). He did not appeal.                                                  
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On April 26, 2019, Petitioner filed a “Motion for Clarification of Sentence and 
Motion for Credit of Time Served” in which he moved the trial court to award him 
another 13 days of jail credit and to clarify whether his prison sentence was 7 years 

and 5 months or 7 years and 6 months (Id., Ex. 5). In denying the motion on June 25, 
2019, the trial court treated the request for additional jail time credit as a motion filed 
under Rule 3.801, Fla.R.Crim.P., and stated that: 1) the Florida Rules of Criminal 
Procedure do not provide for motions to clarify; 2) the court had no authority over the 
Department of Corrections interpretation of Petitioner’s sentence; 3) Petitioner could 

petition for the writ of mandamus in the Leon County Circuit Court if not satisfied 
with the Department’s interpretation of the sentence; and 4) Petitioner was entitled to 
no additional jail credit because he waived any claim for additional credit under his 
plea agreement (Id., Ex. 6). Petitioner did not appeal the denial of his motion. 

On November 15, 2019, Susan Conley, Petitioner’s mother, filed a motion in 
which she moved the trial court to reverse Petitioner’s convictions and dismiss them 
because as the victim of Petitioner’s offenses, she had a due process right under the 
Florida Constitution to choose to not prosecute Petitioner (Id., Ex. 7). On December 
3, 2019, Petitioner filed a “Motion and Response to Plaintiff’s Motion Filed on Issues 

of Due Process” in which he stated he agreed with his mother’s motion and argued he 
had “a fundamental due process right to be charged with [sic] the true and correct 
Plaintiff in this cause.” (Id., Ex. 8). In dismissing both “motions” on July 28, 2020, the 
trial court stated Susan Conley lacked standing to file a motion in the case because she 
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was neither a party nor an attorney, and Petitioner’s motion raised no claim cognizable 
in a post-conviction motion under the Florida Rules of Criminal Procedure (Id., Doc. 
10). The dismissal of the motions was affirmed on appeal (id., Ex. 14), and the 

appellate court mandate issued on July 7, 2021 (Id., Ex. 15).             
Petitioner’s initial federal habeas petition was provided to prison officials for 
mailing on November 9, 2021 (Doc. 1-1).                                   
                       Discussion                                    

I. The Petition is untimely.                                              
Respondent  moves  to  dismiss  the  petition  as  time  barred.  (Doc.  15).  The 
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-
year statute of limitations in which a state prisoner may file a federal habeas petition. 
28  U.S.C.  §  2244(d)(1).  Lawrence  v.  Florida,  549  U.S.  327,  331  (2007).  Section 

2244(d)(1) provides:                                                      
(d)(1) A 1–year period of limitation shall apply to an application for a 
writ of habeas corpus by a person in custody pursuant to the judgment of 
a State court. The limitation period shall run 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 
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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.                                                           

For purposes of AEDPA, the relevant one-year limitations period applicable here runs 
from “the date on which the judgment became final by the conclusion of direct review 
or the expiration of the time for seeking such review.” § 2244(d)(1)(A). And under 28 
U.S.C. § 2244(d)(2), “[t]he 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.”                                                              
Because Petitioner did not appeal his February 22, 2019 Judgment (see Doc. 15-
2, Ex. 4), it became final on Monday, March 25, 2019, when the 30-day time for filing 
an appeal expired. See Fla.R.App.P. 9.140(b)(3); Phillips v. Warden, 908 F.3d 667, 671 
(11th Cir. 2018) (“if the petitioner fails to timely pursue all available state relief on 
direct review, his conviction becomes final when the time for seeking review in the 
relevant state court expires.”). The AEDPA statute of limitations started the next day, 
March 26, 2019.                                                           
It is unclear whether Petitioner’s April 26, 2019 motion seeking clarification of 
his sentence and additional jail time credit is an “application for State post-conviction 

or other collateral review with respect to the pertinent judgment” under § 2244(d)(2), 
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sufficient to toll the one-year AEDPA limitations period. Compare Barber v. Sec’y, Dep’t 
of Corr., 2013 WL 4047012, at *3 (M.D. Fla. Aug. 9, 2013) (“In Florida, motions 
seeking credit for time served in jail . . . constitute[] an application for collateral 

review.”) with Goodloe v. Sec’y, Dep’t of Corr., 823 F. App’x 801 (11th Cir. 2020) (holding 
that order granting Rule 3.801 motion does not result in new judgment that restarts 
AEDPA’s limitations period).                                              
Assuming a Rule 3.801 motion is an application for collateral review that can 

toll the limitations period, Petitioner’s motion for jail credit did not toll the limitations 
period because it was not properly filed under state law. Rule 3.801(c) provides that 
“[t]he motion shall be under oath . . . .” Since the motion was filed without an 
appropriate  oath  (see  Doc.  15-2,  Exs.  5-6),  it  was  not  properly  filed  under  state 
procedural rules and therefore had no tolling effect. Cf. Jones v. Sec’y Fla. Dep’t of Corr., 

499 F. App’x 945, 950 (11th Cir. 2012) (holding “that a Rule 3.850 motion that did 
not contain the written oath required by Florida law was not ‘properly filed’ under § 
2244(d)(2) and, thus, did not toll AEDPA’s one-year limitations period.” (citing Hurley 
v. Moore, 233 F.3d 1295, 1297–98 (11th Cir. 2000))). Therefore, assuming Petitioner’s 
December 3, 2019 motion (see Doc. 15-2, Ex. 8) is an application for collateral review 

that can toll the limitations period, 252 days of the limitations period elapsed before 
Petitioner “properly filed” a post-conviction motion. The motion remained pending 
until July 7, 2021, when the mandate issued on the appeal of the denial of the motion 
(Id., Ex. 15). See Woulard v. Secy, Dep’t of Corr., 707 F. App’x 631, 633 (11th Cir. 2017) 
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(“In Florida, a state post-conviction motion is pending until the appropriate appellate 
court issues the mandate for its order affirming a state trial court’s denial of the 
motion.”).                                                                

Because Petitioner filed no other state post-conviction motions, he had 113 
days, or until Thursday, October 28, 2021, to file a timely federal habeas petition. 
Thus, his initial Petition, constructively filed on November 9, 2021, was filed twelve 
days after the AEDPA limitations period had expired and is untimely. The Amended 
Petition is therefore time-barred.                                        

II. The Amended Petition warrants no relief on the merits.                
Even if Petitioner’s Amended Petition is timely, he would not be entitled to 
relief. Petitioner raises three claims for relief:                        
1. The state trial court lacked jurisdiction over his case;          

2. The victim’s due process rights under both the Florida Constitution and U.S. 
Constitution  were  violated  when  the  State  prosecuted  Petitioner  after  the  victim 
informed the State that she did not wish to prosecute; and                
3. Petitioner’s due process right to be charged by the “true and correct Plaintiff” 
under the Florida Constitution and U.S. Constitution was violated.        

(See Docs. 1, 6, 6-2, 15-2 at Exs. 7, 8).                                 
To prevail on federal habeas review, Petitioner must show that the rejection of 
these claims were either “contrary to, or involved an unreasonable application of, 
clearly established Federal law, as determined by the Supreme Court of the United 
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States.” 28 U.S.C. § 2254(d)(1). “‘[C]learly established Federal law’ for purposes of § 
2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] 
Court’s decisions.” White v. Woodall, 572 U.S. 415, 419 (2014). Accordingly, “it is not 

‘an unreasonable application of’ ‘clearly established Federal law’ for a state court to 
decline to apply a specific legal rule that has not been squarely established by [the 
Supreme] Court.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); see also Reese v. Sec’y, 
Fla. Dep’t of Corr., 675 F.3d 1277, 1288 (11th Cir. 2012) (“The Supreme Court has 

reiterated, time and again, that, in the absence of a clear answer—that is, a holding by 
the Supreme Court—about an issue of federal law, we cannot say that a decision of a 
state court about that unsettled issue was an unreasonable application of clearly 
established federal law.”).                                               
A. Ground One                                                        

Petitioner’s first claim is that the state circuit court lacked jurisdiction to enter 
judgment or impose a sentence upon him in his criminal case. He contends that the 
State was the “plaintiff” in his criminal case and thus the state circuit court lacked 
jurisdiction because under Article III, Section 2, Clause 2 of the U.S. Constitution, 
only the Supreme Court of the United States has original jurisdiction over cases in 

which a state is a party. Article III, Section 2, Clause 2 provides that “[i]n all Cases . . 
. in which a State shall be Party, the supreme Court shall have original Jurisdiction.” 
But “Article III does not apply to the states, so ‘state courts are not bound by the 
limitations of a case or controversy or other federal rules of justiciability.’” Protect Our 
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Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 731 (7th Cir. 2020) (quoting ASARCO, 
Inc. v. Kadish, 490 U.S. 605, 617 (1989)). And because Petitioner was charged with 
committing felonies and misdemeanors (see Doc. 15-2, Ex. 2), the state circuit court’s 

jurisdiction was properly invoked. See Art. V, § 20(c)(3), Fla. Const. (the circuit courts 
in Florida have jurisdiction “of all felonies and of all misdemeanors arising out of the 
same circumstances as a felony which is also charged”). Accordingly, Ground One 
warrants no relief.                                                       

B. Ground Two                                                        
Petitioner’s  second  claim  is  that  victims  have  a  due  process  right  to  not 
prosecute their perpetrators and thus the State violated his mother’s, the victim, right 
to due process by charging and prosecuting Petitioner with the crimes he committed 
against her after she said she did not want Petitioner prosecuted. Initially, to the extent 

that Petitioner contends the State’s actions violated the Florida Constitution, the claim 
is not cognizable on federal habeas review because it asserts no violation of a federal 
constitutional right. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the 
province of a federal habeas court to reexamine state-court determinations on state-
law questions.”). A violation of state law is not a violation of the federal constitution 

and warrants no habeas relief. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) 
(per curiam) (“It is clear from the foregoing statute that a habeas petition grounded on 
issues of state law provides no basis for habeas relief.”).               

                           8                                         
To the extent that Petitioner contends that the State’s actions violated due 
process under the U.S. Constitution, he has failed to show the state court’s rejection 
of this claim was contrary to federal law. Petitioner provides no law supporting his 

contention that a victim has a federal due process right to decide to not have a 
perpetrator prosecuted. In fact, the Supreme Court has stated that private individuals 
“lack[ ] standing to contest the policies of the prosecuting authority” and “lack[ ] a 
judicially cognizable interest in the prosecution or nonprosecution of another.” Linda 
R.S. v. Richard D., 410 U.S. 614, 619 (1973). “[T]he Executive Branch has exclusive 

authority and absolute discretion to decide whether to prosecute a case . . . .” United 
States v. Nixon, 418 U.S. 683, 693 (1974) (citations omitted). Accordingly, Ground Two 
warrants no relief.                                                       
C. Ground Three                                                      

In Petitioner’s third and final claim, he contends that he had a due process right 
“to be charged [by] the true and correct Plaintiff . . . .” He argues the victim of a crime 
is the true plaintiff, and “the State is neither the lawful Plaintiff [nor] lawful victim . . 
. .” (Doc. 15-2, Ex. 7 at docket p. 56).                                  
In denying this claim, the state court stated:                       

     While crime victims are afforded certain rights and protections in 
Florida, they do not have the authority to determine whether criminal 
charges are filed, nor do they have the authority to “reverse and dismiss” 
a defendant’s criminal convictions.                                  

(Id., Ex. 10 at docket p. 71).                                            

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Initially,  as  discussed  above  in  Ground  Two,  to  the extent that  Petitioner 
contends the State violated his right to due process under the Florida Constitution, the 
claim is not cognizable on federal habeas review because it asserts no violation of a 

federal constitutional right. See Estelle, 502 U.S. at 67-68; Branan, 861 F.2d at 1508. 
And to the extent that Petitioner contends that the State violated his due process rights 
under the U.S. Constitution, he has failed to show the state court’s rejection of this 
claim was contrary to federal law.                                        
The State was the proper “plaintiff” in Petitioner’s criminal case because it had 

sole authority to charge and prosecute Petitioner. See Nixon, 418 U.S. at 693 (“[T]he 
Executive Branch has exclusive authority and absolute discretion to decide whether to 
prosecute a case . . . .”); State v. Brosky, 79 So. 3d 134, 135 (Fla. 3d DCA 2012) (“[T]he 
decision whether to prosecute or to dismiss charges is a determination to be made by 

solely the State.”). And the victim of Petitioner’s crimes was not the proper “plaintiff” 
because she had no authority to initiate a criminal prosecution against Petitioner. See 
Stoll v. Martin, 2006 WL 2024387, at *3 (N.D. Fla. July 17, 2006) (“No citizen has a 
right to institute a criminal prosecution.” (citing Linda R.S., 410 U.S. at 619)); Cok v. 
Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (a private citizen has no authority to initiate a 

criminal prosecution); Saucer v. State, 779 So. 2d 261, 262 (Fla. 2001) (“ordinarily only 
the State can initiate a criminal action.”). Petitioner provides no law supporting his 
contention that he had a federal due process right to have the victim, rather than the 
State, initiate the prosecution against him. Ground Three therefore warrants no relief. 
                          10                                         
 Accordingly: 
 1.  The  Amended  Petition  (Doc.  6)  is  DENIED,  as  Petitioner’s  claims  are 
without merit. 
 2. The Clerk of the Court is directed to enter judgment against Petitioner. 
 3. If Petitioner appeals the denial of the Amended Petition, the Court denies a 
certificate  of appealability.  Petitioner  has  not  made  the  requisite  showing  and,  is 
therefore,  not  entitled  to  a  certificate  of  appealability.  Because  the  Court  has 
determined that a certificate of appealability is unwarranted, Petitioner may not appeal 
in forma pauperis. 
 4. The Clerk of the Court is directed to close this case. 
 DONE and ORDERED in Tampa, Florida on December 10, 2024. 

                          Chae Aa towed Nore A gl yell    
                           Charlene Edwards Honeywell 
                          United States District Judge 

Copies to: 
Petitioner, pro se 
Counsel of Record 

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