LEVINE v. DIXON

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ARAY DONELL LEVINE,
Petitioner,
v. 	Case No. 3:25-cv-1323-TKW-MJF
RICKY DDIXON,
Respondent.
_______________________________/
REPORT AND RECOMMENDATION
Aray Levine has filed an amended petition for writ of habeas corpus
under 28 U.S.C. § 2254. Doc. 6. Respondent (“the State”) moves to dismiss
the petition as untimely. Doc. 11. Levine opposes the motion. Doc. 15. The
undersigned concludes that no evidentiary hearing is required, and that
the District Court should dismiss Levine’s petition because it is time-
barred.
BACKGROUND
In Escambia County Circuit Court Case No. 2016-CF-2655, Levine
was convicted of six crimes: robbery armed with a firearm (Count 1), theft
from a person 65 years of age or older (Count 2), aggravated battery while
actually possessing a firearm (Count 4), two counts of aggravated assault
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by threat with a firearm (Counts 5 & 6), and grand theft auto (Count 7).
Doc. 11-2, Ex. 6.1 On May 2, 2017, the trial court orally pronounced
sentence. Ex. 5. On May 8, 2017, the trial court filed its written judgment
and sentence “NUNC PRO TUNC to May 2, 2017.” Ex. 6. The written
sentence 	misstated 	the 	sentence 	on 	Count 	7 	as 	fifteen 	years 	of
imprisonment rather than the five years of imprisonment the trial court
orally pronounced. On July 25, 2018, the Florida First District Court of
Appeal (“First DCA”) affirmed without opinion. Levine v. State, 250 So.
3d 11 (Fla. 1st DCA 2018) (per curiam) (Table) (copy at Ex. 12).
On August 31, 2018, Levine filed a pro se motion to reduce or modify
sentence under Florida Rule of Criminal Procedure 3.800(c). Ex. 14. The
state circuit court denied the motion on September 25, 2018. Ex. 15.
Levine did not appeal. See Ex. 1.
On October 4, 2018, Levine filed a pro se motion to correct illegal
sentence under Florida Rule of Criminal Procedure 3.800(a). Ex. 16. The
state circuit court denied the motion. Ex. 19. The First DCA per curiam
affirmed, citing Miller v. State, 265 So. 3d 457 (Fla. 2018). See Levine v.
1 Citations to the state-court record are to the exhibits attached to the
State’s motion to dismiss, Doc. 11-2.
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State, 327 So. 3d 871 (Fla. 1st DCA Aug. 31, 2021) (copy at Ex. 24). On
February 11, 2022, the Supreme Court of Florida declined to accept
jurisdiction. Levine v. State, 2022 WL 41400 (Fla. 2022) (copy at Ex. 30).
On October 21, 2020, Levine filed a motion for postconviction relief
under Florida Rule of Criminal Procedure 3.850, which he later amended.
Exs. 31 & 33. The state circuit court denied the motion. Ex. 34. The First
DCA per curiam affirmed without opinion. Levine v. State, 331 So. 3d 124
(Fla. 1st DCA Dec. 16, 2021) (Table) (copy at Ex. 37). The mandate issued
January 14, 2022. Ex. 38.
On March 8, 2022, Levine filed a second pro se motion under Rule
3.800(a). Ex. 42. The state circuit court denied the motion as successive,
frivolous, and an abuse of process. Ex. 43. On appeal, the First DCA
ruled:
Appellant 	appeals 	of 	an 	order 	dismissing 	his 	rule
3.800(a) motion to correct illegal sentence.
The 	written 	sentence 	included 	fifteen 	years’
imprisonment for grand theft of a motor vehicle on Count VII.
Pursuant to section 812.014(2)(c)6, Florida Statutes, that
offense is a third-degree felony ordinarily punishable by up to
five years in prison. Based on the record before this Court, the
fifteen-year sentence appears to be illegal. We remand for the
circuit court to reconsider Appellant’s claim as to the legality
of the Count VII sentence. In all other respects, we affirm the
circuit court’s order.
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AFFIRMED 	in 	part, 	REVERSED 	in 	part, 	and
REMANDED.
Levine v. State, 366 So. 3d 1206, 1207 (Fla. 1st DCA 2023) (copy at Ex.
47).
On remand, the state circuit court entered an order on August 28,
2023, finding that the written sentence of fifteen years of imprisonment
on Count Seven was a scrivener’s error because the trial court orally
imposed a sentence of five years of imprisonment. Ex. 49. The circuit
court directed the clerk to correct the written sentence to conform to the
oral pronouncement. Id. An amended judgment and sentence was filed
on December 13, 2024, “NUNC PRO TUNC to May 2, 2017.” Ex. 50 at 11.
That amended judgment and sentence incorrectly indicated that the
Count Four sentence was concurrent with Count One. Id. at 5. Thus, a
second amended judgment and sentence was filed on April 14, 2025,
“NUNC PRO TUNC to May 2, 2017”, correcting that error to conform the
Count 	Four 	sentence 	to 	the 	original 	oral 	pronouncement 	that 	the
sentence was consecutive to Count One. Ex. 52.
Levine filed his initial federal habeas petition on August 7, 2025,
which he later amended. Docs. 1 & 6. Levine’s amended petition raises
one 	claim—trial 	counsel 	was 	ineffective 	for 	failing 	to 	object 	to 	a
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sentencing error (the error Levine alleged in his first Rule 3.800(a)
motion). Doc. 6 at 8–13. The State asserts that Levine’s petition must be
dismissed because it is barred by the one-year statute of limitations in 28
U.S.C. § 2244. Doc. 11.
D ISCUSSION
A. 	The Federal Habeas Limitations Period
The 	Antiterrorism 	and 	Effective 	Death 	Penalty 	Act 	of 	1996
(“AEDPA”) governs Levine’s § 2254 petition, because the petition was
filed after AEDPA’s effective date of April 24, 1996. See Lindh v. Murphy,
521 U.S. 320 (1997). AEDPA establishes a 1-year period of limitation for
a 	state 	prisoner 	to 	file 	a federal habeas 	petition. 	See 	28 	U.S.C. 	§
2244(d)(1). The limitations 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
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(D) 	the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
§ 2244(d)(1). The limitations period is tolled for “[t]he time during which
a properly filed application for State post-conviction or other collateral
review” is pending. 28 U.S.C. § 2244(d)(2).
B. 	The 	Statute 	of 	Limitations 	Is 	Measured 	From 	the 	Date
Levine’s 2017 Judgment Became Final
Levine 	does 	not 	assert 	that 	an 	unconstitutional 	State-created
impediment to filing his federal habeas petition existed, that he bases his
claim on a right newly recognized by the United States Supreme Court,
or that the facts supporting his claim could not have been discovered
through the exercise of due diligence before his judgment became final.
Accordingly, the statute of limitations is measured from the remaining
trigger, which is the date Levine’s judgment became final. See 28 U.S.C.
§ 2244(d)(1).
The First DCA affirmed Levine’s 2017 judgment on July 25, 2018.
Levine did not seek further direct review in the United States Supreme
Court. 	Thus, 	Levine’s 	judgment 	became 	“final” 	for 	purposes 	of
2244(d)(1)(A), on October 23, 2018, when the 90-day period to file a
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certiorari petition in the United States Supreme Court expired. See 28
U.S.C. § 2244(d)(1); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
C. 	The State Court’s Nunc Pro Tunc Corrections to the Written
Sentence Did Not Restart the One-Year Clock
The state court amended the written sentence on December 13,
2024, and again on April 14, 2025. That raises the question of whether
either amended written sentence created a new judgment for purposes of
§ 2244.
As previously discussed, each amended written sentence corrected
a 	scrivener’s 	error 	to 	conform 	the 	written 	sentence 	to 	the 	oral
pronouncement of that sentence. The state court issued the amended
written sentences nunc pro tunc to the date of the original judgment and
sentence, which was May 2, 2017. Both of the nunc pro tunc designations
related back to Levine’s original judgment and, therefore, the federal
clock for the one-year limitations period did not reset. Cassidy v. Sec’y,
Fla. Dep’t of Corr., 119 F.4th 1336, 1341–42 (11th Cir. 2024) (state court’s
designation of amended sentence as nunc pro tunc related back to the
date of the original judgment and was not a new judgment for purposes
of § 2244(d)); Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1267
(11th Cir. 2020) (same).
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D. 	Levine’s Petition Is Untimely
The federal habeas limitations period began to run on October 24,
2018. San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir. 2011). The
limitations period immediately was tolled, however, due to the pendency
of Levine’s first Rule 3.800(a) motion filed on October 4, 2018. See 28
U.S.C. § 2244(d)(2). As a result of the filing of that Rule 3.800(a) motion,
the limitations period was statutorily tolled until February 11, 2022 (the
date the Florida Supreme Court declined to accept jurisdiction).2
The limitations period started running on February 12, 2022, and
ran for 24 days until Levine filed his second Rule 3.800(a) motion on
March 8, 2022. As a result of the filing of that motion, the limitations
period was statutorily tolled from March 8, 2022 (the date the motion was
filed) until September 27, 2023 (the date the 30-day period to appeal from
the circuit court’s August 28, 2023 order expired). See Cramer v. Sec’y,
Dep’t of Corr., 461 F.3d 1380, 1384 (11th Cir. 2006) (a state postconviction
2 Levine’s Rule 3.800(c) motion had no effect on the limitations period,
because 	it 	was 	filed 	before 	Levine’s 	conviction 	became 	final, 	and
concluded while Levine’s first Rule 3.800(a) motion was pending. Levine’s
Rule 3.850 motion had no effect on the limitations period, because it was
filed 	and 	concluded 	while 	Levine’s 	first 	Rule 	3.800(a) 	motion 	was
pending.
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motion remains “pending” for purposes of § 2244(d)(2), for the time
during which the petitioner could have appealed from the trial court’s
ruling, even if the petitioner did not seek appellate review).
The federal habeas limitations period began to run one day later,
on September 28, 2023, and expired 341 days later on September 3,
2024.3 	Levine’s federal habeas petition, filed on August 7, 2025, is
untimely by eleven months.
E. 	Levine’s Untimely Petition Should Be Dismissed
Levine argues that his untimely petition qualifies for the Martinez
exception for excusing a procedural default. Doc. 15 at 5 (citing Martinez
v. Ryan, 566 U.S. 1 (2012)). Levine’s reliance on Martinez is misplaced.
“[T]he Martinez rule explicitly relates to excusing a procedural default of
ineffective-trial-counsel claims and does not apply to AEDPA’s statute of
limitations or the tolling of that period.” Arthur v. Thomas, 739 F.3d 611,
630 (11th Cir. 2014).
Levine’s additional allegations that he will be prejudiced if the court
does not consider his claim on the merits does not qualify Levine for
3 The 341st day fell on September 2, 2024, which was a legal holiday.
Thus, Levine had until the following day, September 3, 2024, to file his
federal petition. See Fed. R. Civ. P. 6(a).
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equitable tolling or any other exception to the limitations bar. See Doc.
15 at 3–9.
Levine’s untimely petition, therefore, must be dismissed.
A CERTIFICATE OF A PPEALABILITY IS N OT WARRANTED
Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides: “[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” 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
still be filed, even if the court issues a certificate of appealability. See 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 28 U.S.C. § 2253(c)). “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 constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
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encouragement to proceed further.” Buck v. Davis, 580 U.S. 100, 115
(2017). “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim,
a COA should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
Here, Petitioner has not made the requisite demonstration. Accordingly,
the court should deny a certificate of appealability in its final order.
“Before entering the final order, the court may direct the parties to
submit arguments on whether a certificate should issue.” 28 U.S.C. §
2254 Rule 11(a). If there is an objection to this recommendation, the
relevant party shall file such an objection with the District Court.
C ONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	GRANT Respondent’s motion to dismiss, Doc. 11.
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2. 	DISMISS 	with 	prejudice 	Petitioner’s 	amended 	habeas
corpus petition, Doc. 6, because it is time-barred.
3. 	DENY a certificate of appealability.
4. 	DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 6th day of February, 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). 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. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this 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. R. 3-1; 28 U.S.C. § 636.
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