HENDERSON v. SECRETARY DOC STATE OF FLORIDA

1
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
KEITH HENDERSON,
a/k/a/ ALAN KEITH HENDERSON,
Petitioner,
vs. 	Case No.: 5:25cv216/TKW/ZCB
SECRETARY DOC,
STATE OF FLORIDA,
Respondent.
__________________________________/
REPORT AND RECOMMENDATION
Petitioner, Keith Henderson, has filed a habeas corpus petition
under 28 U.S.C. § 2254. (Doc. 1). Respondent has moved to dismiss the
petition as untimely. (Docs. 20, 23). Petitioner was invited to respond to
Respondent’s untimeliness argument, but he has not done so. (Doc. 24).
For 	the 	reasons 	below, 	Respondent’s 	motion 	to 	dismiss 	should 	be
granted.1
I. 	Background
On February 16, 2018, Petitioner entered a no contest plea in the
Jackson County Circuit Court to robbery and grand theft. 	(Doc. 20-3).
1 This matter can be resolved without an evidentiary hearing. Rule 8(a),
Rules Governing Section 2254 Cases.
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 1 of 10

2
The trial court accepted the plea and sentenced Petitioner to three years
of probation. (Doc. 23-22 at 16).
Petitioner 	violated 	the 	terms 	of 	his 	probation, 	and 	he 	was
subsequently sentenced to twenty years’ imprisonment. 	(Doc. 23-7).
Petitioner appealed, and the Florida First District Court of Appeal (First
DCA) affirmed on March 4, 2020. 	(Doc. 23-12). 	Petitioner did not seek
further direct review.
On July 29, 2021, Petitioner filed a motion for postconviction relief
in the trial court under Florida Rule of Criminal Procedure Rule 3.850.
(Doc. 23-13). 	After Petitioner filed several amended motions, the trial
court denied relief on September 19, 2023. 	(Doc. 23-22).2 	Petitioner did
not appeal.
On October 20, 2023, Petitioner filed a petition for writ of habeas
corpus in the trial court. 	(Doc. 23-25). 	The trial court dismissed the
petition as procedurally barred and untimely on December 15, 2023.
(Doc. 23-26).
2 While the Rule 3.850 motion was pending, Petitioner filed, and the trial
court denied, a motion to correct illegal sentence under Florida Rule of
Criminal Procedure 3.800. (Docs. 23-23, 23-24).
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 2 of 10

3
On October 27, 2023, petitioner filed another Rule 3.850 motion in
the trial court. 	(Doc. 23-27).3 	The trial court struck the motion on
December 18, 2023, as facially insufficient and gave Petitioner sixty days
to file an amended Rule 3.850 motion. 	(Doc. 23-28). 	Petitioner did not
file an amended motion by the deadline.
On July 1, 2024, Petitioner filed another Rule 3.800 motion in the
trial court. 	(Doc. 23-29). 	On August 14, 2024, the trial court dismissed
the motion as facially insufficient, untimely, and successive. 	(Doc. 23-
30). 	Thereafter, Petitioner filed several more postconviction petitions
and motions in the trial court. 	(Doc. 23-32; Doc. 23-34; Doc. 23-35; Doc.
23-37). None of those applications were successful. (Doc. 23-33; Doc. 23-
36; Doc. 23-38).
3 Respondent argues that Petitioner is not entitled to the benefit of the
prison mailbox rule because he did not follow the FDOC legal mail stamp
procedure. 	(Doc. 23 at 4 n.4). 	Under the prison mailbox rule, a pro se
prisoner’s document is deemed filed on the date the prisoner delivered it
to prison authorities for forwarding to the court. 	Houston v. Lack, 487
U.S. 266, 270 (1988). The mailbox rule does not include an institutional
mail stamp requirement. Petitioner’s Rule 3.850 motion certifies that he
provided it to a prison official for mailing on October 27, 2023. (Doc. 23-
27 at 8). This satisfies the requirements of the prison mailbox rule.
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 3 of 10

4
Petitioner filed the current 28 U.S.C. § 2254 habeas corpus action
on August 11, 2025. 	(Doc. 1 at 20). 	Respondent has moved to dismiss,
arguing the petition was filed after expiration of the one-year limitations
period found in 28 U.S.C. § 2244(d)(1). (Docs. 20, 23).
II. 	Discussion
A one-year limitations period applies to the filing of a § 2254 habeas
petition. 28 U.S.C. § 2244(d)(1). The one-year period runs 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 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.
28 U.S.C. § 2244(d)(1). The statute also includes a tolling provision that
provides as follows: “The time during which a properly filed application
for State post-conviction or other collateral review with respect to the
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 4 of 10

5
pertinent judgment or claim is pending shall not be counted toward any
period of limitation . . . .” 28 U.S.C. § 2244(d)(2).
In his motion, Respondent argues (and Petitioner does not dispute)
that the trigger for the one-year period in this case is the date the
judgment became final under § 2244(d)(1)(A). (Doc. 23 at 8). Petitioner’s
judgment became final when the window to seek review in the Supreme
Court of the United States closed. 	See Jimenez v. Quarterman, 555 U.S.
113, 120 (2009) (explaining that “when time for seeking certiorari review
in this Court expired,” then the “petitioner's conviction became ‘final’ . . .
under § 2244(d)(1)(A).”). 	The 	time 	period 	for 	seeking 	review 	in 	the
Supreme Court of the United States began on March 4, 2020—the date
the First DCA affirmed Petitioner’s judgment. 	(Doc. 23-12). 	The time
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 5 of 10

6
period ended 150 days later4 on August 3, 2020.5 	The one-year clock
under § 2244(d)(1)(A) started running the next day, August 4, 2020.6
The clock for the federal limitations period ran for 359 days until it
paused on July 29, 2021, when Petitioner properly filed a Rule 3.850
motion in the trial court. (Doc. 23-13); 28 U.S.C. § 2244(d)(2) (tolling the
time during the pendency of a properly filed state court motion for
postconviction relief or other collateral review). The federal clock began
running again on October 20, 2023, the day after Petitioner’s thirty-day
window to appeal the trial court’s denial of his Rule 3.850 motion expired.
(Doc. 23-22); see Fla. R. App. P. 9.110(b) (stating that a notice of appeal
4 Typically, a party has ninety days to file a certiorari petition. Sup. Ct.
R. 13.1, 13.3. 	But because of the COVID-19 pandemic, the Supreme
Court temporarily extended that deadline to 150 days for certiorari
petitions due on or after March 19, 2020. 	See Miscellaneous Order
Addressing the Extension of Filing Deadlines [COVID-19], 334 F.R.D.
801, 589 U.S. — (Mar. 19, 2020). That order was in effect until July 19,
2021. 	See Miscellaneous Order Rescinding COVID-19 Related Orders,
338 F.R.D. 801 (July 19, 2021).
5 	The 150-day deadline fell on Saturday, August 1, 2020, but was
extended to the next day that was not a Saturday, Sunday, or legal
holiday. 	See Fed. R. Civ. P. 6(a)(1)(C).
6 Federal Rule of Civil Procedure 6(a) provides that “[i]n computing any
period of time . . . exclude the day of the event that triggers the period[.]”
Fed. R. Civ. P. 6(a)(1)(A); see also id., Advisory Committee’s Note to 2009
Amendment (“The day of the event that triggers the deadline is not
counted.”); Moore v. Campbell, 344 F.3d 1313, 1319-20 (11th Cir. 2003)
(recognizing that Rule 6 applies to the deadline for § 2254 petitions).
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 6 of 10

7
must be filed in the lower court within thirty days of rendition of the
order to be reviewed); see generally Cramer v. Sec’y, Dep’t of Corr., 461
F.3d 	1380, 	1383-84 	(11th 	Cir. 	2006) 	(holding 	that 	when 	a 	Florida
petitioner does not 	appeal the trial 	court’s denial of postconviction
motion, the motion remains pending until the time to seek review
expires).
The federal clock ran for another six days until it expired on October
26, 2023 (359 days + 6 days = 365 days).7 	Petitioner filed several
postconviction applications in state court after the expiration date, but
they do not qualify for statutory tolling under § 2244(d)(2). 	See Webster
v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“A state-court petition . .
. that is filed following the expiration of the limitations period cannot toll
that 	period 	because 	there 	is 	no 	period 	remaining 	to 	be 	tolled.”).
Petitioner filed his § 2254 petition on August 11, 2025—nearly two years
after it should have been filed. (Doc 1). Thus, his petition was untimely.
7 Petitioner’s habeas petition, filed in the trial court on October 20, 2023,
did not qualify for tolling under § 2244(d)(2). 	(Doc. 23-25). 	That is
because 	it 	was 	dismissed 	as 	untimely. 	(Doc. 	23-26); 	see 	Pace 	v.
DiGuglielmo, 544 U.S. 408, 413-417 (2005) (explaining that an untimely
state post-conviction petition is not properly filed within the meaning of
§ 2244(d)(2)).
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 7 of 10

8
Petitioner has not argued that any recognized exception excuses his
failure to timely file his § 2254 petition. 	Nor are any exceptions readily
apparent from the record. 	Because Petitioner filed his § 2254 petition
after the one-year limitations period in 28 U.S.C. § 2244(d)(1) had
expired, his petition was untimely filed. 	It is, therefore, subject to
dismissal with prejudice. 	See Jeffus v. Sec’y, Fla. Dep’t of Corr., 759 F.
App’x 773, 775 (11th Cir. 2018) (recognizing that dismissal of a § 2254
petition as untimely “constitutes a dismissal with prejudice on the
merits”).
III. 	Conclusion
For the reasons above, the petition for habeas relief under 28 U.S.C.
§ 2254 was untimely filed and should be dismissed.
IV. 	Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts 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).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 8 of 10

9
still be filed, even if the court issues a certificate of appealability. 	28
U.S.C. § 2254 Rule 11(b).
Section 2253(c) “permits the issuance of a COA only where a
petitioner 	has 	made 	a 	‘substantial 	showing 	of 	the 	denial 	of 	a
constitutional right.’” 	Miller-El v. Cockrell, 537 U.S. 322, 336 	(2003)
(quoting § 2253(c)(2)). 	“At the COA stage, the only question is whether
the applicant has shown that ‘jurists of reason could disagree with the
district court’s resolution of his [or her] constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.’” 	Buck v. Davis, 580 U.S. 100, 115
(2017) (citing Miller-El, 537 U.S. at 327). 	Petitioner cannot make that
showing in this case. Therefore, the undersigned recommends denying a
certificate of appealability.
The second sentence of 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 either party wishes to submit
arguments on the issue of a certificate of appealability that party may do
so in an objection to this Report and Recommendation.
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 9 of 10

10
Accordingly, it is respectfully RECOMMENDED that:
1. 	Respondent’s motion to dismiss as supplemented (Docs. 20,
23) be GRANTED.
2. 	The 28 U.S.C. § 2254 petition for habeas corpus (Doc. 1) be
DISMISSED with prejudice as untimely.
3. 	A certificate of appealability be DENIED.
At Pensacola, Florida, this 20th day of April 2026.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must
be 	filed 	within 	fourteen 	days 	of 	the 	date 	of 	the 	Report 	and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic docket is for the Court’s internal use only and does not control.
An objecting party must serve a copy of the objections on all other parties.
A 	party 	who 	fails 	to 	object 	to 	the 	magistrate 	judge’s 	findings 	or
recommendations contained in a report and recommendation waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
Case 5:25-cv-00216-TKW-ZCB Document 25 Filed 04/20/26 Page 10 of 10