Parker v. Secretary, Department of Corrections

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

JERRY L. PARKER,

Petitioner,

-vs- CASE NO. 8:16-cv-3483-T-02AEP

SECRETARY, DEPARTMENT OF CORRECTIONS,

Respondent. ____________________________/

ORDER

Before the Court is Mr. Parker’s Motion for Reconsideration (Doc. 29) in which he moves the Court to reconsider the January 27, 2020 Order dismissing his petition for a writ of habeas corpus as time-barred. Upon consideration, the motion will be denied. Mr. Parker contends that this Court erred in dismissing his petition as time-barred considering the decision in Hall v. Secretary, Department of Corrections, 921 F.3d 983 (11th Cir. 2019), which Petitioner argues is factually indistinguishable from his case. The Court disagrees. Mr. Parker’s case and Hall are distinguishable. In Hall, after the petitioner filed a Rule 3.850 motion that was not “properly filed” for purposes of tolling the federal limitation period for filing a petition for a writ of habeas corpus, he filed a corrected 3.850 motion before the limitation period expired. Hall, 921 F.3d at 986. The corrected motion therefore related back to the date the initial motion was filed and tolled the unexpired federal limitation period. Id., 921 F.3d at 988. In contrast, Mr. Parker filed his corrected motion after the federal limitation

1 period expired. The expired limitation period was not “resurrected” by Mr. Parker’s corrected motion. See Melson v. Allen, 548 F.3d 993, 998 (11th Cir. 2008), cert. granted, judgment vacated on other grounds, 561 U.S. 1001 (2010) (a federal habeas petitioner “may not attempt to resurrect a terminated statute of limitations by subsequently filing documents that purport to ‘relate back’ to previously submitted documents that were, in themselves, insufficient to toll the

statute.”) (citation omitted). Mr. Parker’s federal habeas petition therefore was untimely filed. Accordingly, Mr. Parker’s Motion for Reconsideration (Doc. 29) is DENIED. DONE AND ORDERED in Tampa, Florida on March 27, 2020.

____s/William F. Jung________ WILLIAM F. JUNG United States District Judge

SA: sfc Copies to: Jerry L. Parker, pro se Counsel of Record