JEAN-PHILIPPE

v.

SECRETARY, DEPARTMENT OF CORRECTIONS (DUVAL COUNTY)

and FLORIDA ATTORNEY GENERAL,

Respondents.

ORDER

Petitioner Lesly Jean-Philippe, an inmate of the Florida penal system, initiated this action on March 23, 2018, by filing a pro se Petition for Writ of Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. ' 2254 in the Tampa Division of this Court. The Court transferred the case to the Jacksonville Division on March 27, 2018. See Order (Doc. 4).

He filed an Amended Petition (Doc. 17) with an Appendix (Docs. 18-1 through 18-6.) on December 17, 2018. In the Amended Petition, Jean-Philippe challenges his state court (Duval County, Florida) conviction for first degree murder and aggravated battery. He asserts that trial counsel were ineffective when they (1) failed to request that the trial court suppress text messages obtained in a warrantless search, and (2) interfered with his right to testify and failed to prepare and present a viable defense.

Additionally, he states that one of his attorneys was ineffective when she misadvised him about waiving his postconviction rights, and failed to notify the resentencing court that she was not certified under Florida Rule of Criminal Procedure 3.112(f). Respondents have submitted a memorandum in opposition to the Amended Petition. See Motion to Dismiss the Petition for Writ of Habeas Corpus Without Prejudice (Motion; Doc. 24); Exhibits (Resp. Ex.; Docs. 24-1 through 24-4).

On July 16, 2018, the Court entered an Order to Show Cause and

Notice to Petitioner (Doc. 13), admonishing Jean-Philippe regarding his obligations and giving Jean-Philippe a time frame in which to submit a reply.

On October 9, 2019, Jean- Philippe replied. See Reply to the Court’s Order of September 9, 2019, and the Respondents’ Motion to Dismiss (Reply; Doc. 26). This case is ripe for review. In the Motion, Respondents request dismissal of the Petition without prejudice to permit Jean-Philippe to exhaust his claims in state court. See Motion at 1-4. They assert that his appeal of the circuit court’s denial of his motion for post-conviction relief, filed under Florida Rule of Criminal Procedure 3.850, is still pending in the state appellate court. See Motion at 2 (citing Resp. Ex. 4). In his Reply, Jean-Philippe agrees that his post-conviction proceeding is still pending in the First District Court of Appeal, and therefore his federal habeas petition is premature. See Reply at 1-2. He suggests that the Court either hold the federal proceeding in abeyance, or “exercise concurrent jurisdiction over the matters irrespective of the State Appeal Court decision.” Id. at 2. He nevertheless asserts that “any judicial action by this federal court should be without prejudice” to permit him to refile his claims. Id. Notably, the record reflects that Jean-Philippe raised similar ineffectiveness claims in his Rule 3.850 motion,¹ see Doc. 18-6; Resp. Exs. 1; 2, and that his appeal of the

Therefore, Respondents’ Motion will be granted, and this case will be dismissed without prejudice to give Jean-Philippe the opportunity to complete his action in the state court. See 28 U.S.C. § 2254(b)(1)(A). After exhausting his claims in state court, Jean-Philippe may file a new petition in this Court. If he elects to refile his claims, the timeliness of the newly-filed petition will be determined after he initiates that action.³ Therefore, it is now ORDERED AND ADJUDGED: 1. Respondents’ Motion to Dismiss the Petition for Writ of Habeas Corpus Without Prejudice (Doc. 24) is GRANTED, and this case is DISMISSED WITHOUT

Thus, Jean-Philippe should take into account his resentencing in calculating the running of the one-year limitation period in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

See Ferreira v. Sec’y, Dep’t of Corr., 494 F. 3d 1286, 1293 (11th Cir. 2007) (“We now hold that AEDPA’s statute of limitations begins to run when the judgment pursuant to which the petitioner is in custody, which is based on both the conviction and the sentence the petitioner is serving, is final”); see also Thompson v. Fla. Dep’t of Corr., 606 F. App’x 495 (11th Cir. 2015).

PREJUDICE to give Jean-Philippe the opportunity to complete his action in the state court.⁴ 2. The Clerk is directed to enter judgment dismissing this case without prejudice, terminating any pending motions, and closing the file.

3. If Jean-Philippe appeals the dismissal of the case, this Court denies a certificate of appealability.⁵ Because this Court has determined that a certificate of appealability is not warranted, the Clerk shall terminate from the pending motions report

To make this substantial showing, Jean-Philippe “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Upon due consideration, this Court will deny a certificate of appealability. any motion to proceed on appeal as a pauper that may be filed in this case. Such termination shall serve as a denial of the motion. DONE AND ORDERED at Jacksonville, Florida, this 10th day of February, 2020.

es Mal Hee United States District Judge sc 2/10 C: Lesly Jean-Philippe, FDOC #J44119 Counsel of Record