REINALDO A. MELARA, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Petition for writ of habeas corpus alleging ineffective assistance of appellate counsel is denied as untimely filed more than two years after the judgment became final on direct review.
A petition alleging ineffective assistance of appellate counsel must be filed within two years after the judgment becomes final on direct review unless the petitioner alleges under oath that counsel affirmatively misled him about the appeal results.
[1] A petition for habeas corpus alleging ineffective assistance of appellate counsel must be filed within two years after judgment becomes final on direct review unless the…
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Join FLexlaw to unlock all legal intelligenceMelara was convicted of manslaughter with a deadly weapon and attempted second-degree murder with a firearm, and his conviction and sentence were affi…
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RAMIREZ, J.
Reinaldo A. Melara filed a pro se Petition for Writ of Habeas Corpus for Belated Appeal to raise a claim of ineffective assistance of appellate counsel. He was found guilty of manslaughter with a deadly weapon and attempted second-degree murder with a firearm, and was duly sentenced. According to the petition, Melara’s conviction and sentence were affirmed on June 15, 2005. The mandate issued on July 1, 2005.
Melara filed the instant habeas corpus petition on September 17, 2008, alleging ineffective assistance of appellate counsel. Under rule 9.141(c)(4)(B), Florida Rules of Appellate Procedure, a petition alleging ineffective assistance of appellate counsel on direct review must not be filed more than two years after the judgment and sentence became final on direct review, unless the petition alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. As Melara has not alleged that he was misled, his petition had to be filed by July 1, 2007.
Because Melara’s petition is untimely and because he does not provide any explanation why he has waited over three years to challenge the performance of appellate counsel, this petition is hereby denied.
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Mendoza v. State, 224 So. 3d 836 (Fla. 3d DCA 2017)…phasis added). Because Mendoza’s petition was filed on May 7, 2017—more than four years after his judgment and sentence became final on direct review, we dismiss Mendoza’s petition as procedurally barred under rule 9.141(d)(5).2 See Melara v. State, 997 So. 2d 1135, 1136 (Fla. 3d DCA 2008); see also Burroughs v. State, 65 So. 3d 1175 (Fla. 1st DCA 2011); Chance v. State, 65 So. 3d 1176 (Fla. 1st DCA 2011). We caution Mendoza that the filing of any further procedurally barred petitions claiming appellate counse…
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Diaz v. State, 8 So. 3d 1144 (Fla. 3d DCA 2009)…was filed . . . 1 The petition was amended on February 6, 2020. more than four years after his judgment and sentence became final on direct review, we dismiss [the] petition as procedurally barred under rule 9.141(d)(5).”) (citing Melara v. State, 997 So. 2d 1135, 1136 (Fla. 3d DCA 2008)). Dismissed.…
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Diaz v. State, 11 So. 3d 400 (Fla. 3d DCA 2009)…SUAREZ, J. We deny Jose A. Diaz’s petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. See McCray v. State, 699 So. 2d 1366 (Fla.1997); Melara v. State, 997 So. 2d 1135 (Fla. 3d DCA 2008); Partridge v. Moore, 768 So. 2d 1128 (Fla. 1st DCA 2000). Petition denied.…
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