FREDRICKSON

v.

HOLLAND (PASCO COUNTY

The pending application asserts one ground for relief — the trial court lacked jurisdiction over the case because the second and third amended informations were filed in May 2015, one month after the expiration of the three-year limitation for aggravated assault. (Doc. 1-1 at 5–9) Fredrickson admits that under Florida law, later-filed informations “will not be subject to the statute of limitations when they are shown to be connected with and in continuation of a prosecution timely begun.” State v. Douglas, 919 So. 2d 481, 482 (Fla. 3d DCA 2005). He contends, however, that this principle does not apply to the second and third amended informations because they replaced the attempted second-degree murder charge with the “wholly different felony charge” of aggravated assault on a law enforcement officer. (Doc. 1- 1 at 7) Fredrickson does not argue that the allegedly untimely prosecution violated his rights under the federal constitution. Fredrickson cannot obtain relief because his claim is not cognizable on federal habeas review, which for a person in custody under the judgment of a state court is available only if the custody violates the constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010). Accordingly, “federal habeas corpus relief does not lie for errors of state law.” Swarthout v. Cooke,

562 U.S. 216, 219 (2011) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Fredrickson’s claim that he was prosecuted in violation of the applicable limitation raises an issue of state law not cognizable on federal habeas review. See Loeblein v. Dormire, 229 F. 3d 724, 726 (8th Cir. 2000) (“[A] state court’s failure properly to apply a state statute of limitations does not violate due process or . . . any other provision of the Constitution or a federal statute.”); Beverly v. Jones, 854 F. 2d 412, 416 (11th Cir. 1988) (holding that habeas petitioner’s statute-of-limitations argument was “beyond [the court’s] consideration” because “a state’s interpretation of its own laws provides no basis for federal habeas relief since no question of a constitutional nature is involved”); Reed v. Toole, No. 1:18-cv-3970-AT-CMS, 2019 WL 11868548,

at *9 (N.D. Ga. Dec. 17, 2019) (“State law statutes of limitations for the prosecution of state crimes, and the interpretation of those statutes, are matters of state law and provide no grounds for federal habeas corpus relief.”), adopted by 2020 WL 8920972 (N.D. Ga. Feb. 21, 2020). Consequently, ground one is denied. Even affording ground one a lenient construction and assuming that Fredrickson asserts a federal constitutional violation, he cannot obtain relief because the claim is unexhausted. An applicant must present each claim to a state court before raising the claim in federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly presen[t]’ federal claims to the state courts in order to give the State the ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)); accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.”). “To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). Fredrickson did not raise his limitation defense before the trial court or on direct appeal. Nor did he present the issue in his Rule 3.850 motion for postconviction relief.² The failure to properly exhaust each available state court remedy

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Fredrickson fails to demonstrate either a substantial showing of the denial of a constitutional right or that reasonable jurists would debate both the merits of the grounds and the procedural issues, a certificate of appealability and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000). Fredrickson must obtain permission from the court of appeals to appeal in forma pauperis. ORDERED in Tampa, Florida, on May 3, 2023. Ala tWrvagetony

UNITED STATES DISTRICT JUDGE