Tyrone Baker v. Walter McNeil

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 26, 2010
No. 09-14438 JOHN LEY
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 08-00337-CV-5-RH-AK

TYRONE BAKER,

Petitioner-Appellant,

versus

WALTER MCNEIL,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(March 26, 2010)

Before DUBINA, Chief Judge, TJOFLAT and FAY, Circuit Judges.

PER CURIAM:
 Appellant Tyrone Baker, a Florida state prisoner proceeding pro se, appeals

the district court’s order dismissing his habeas corpus petition, brought under 28

U.S.C. § 2254, as barred by the one-year statute of limitations of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214 (1996). The district court issued a certificate of appealability (“COA”)

on the following issue: “whether a state-court motion for discretionary sentence

reduction is an ‘application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim’ within the meaning of 28 U.S.C.

§ 2244(d)(2).” On appeal, Baker argues that instead of applying Alexander v.

Sec’y, Dep’t of Corr., 523 F.3d 1291 (11th Cir. 2008), which held that a Florida

Rule of Criminal Procedure 3.800(c) (“Rule 3.800(c)”) motion is not a tolling

motion, we should apply the contrary holding from Robinson v. Golder, 443 F.3d

718, 720-21 (10th Cir. 2006), in which the Tenth Circuit held that a motion for a

sentence reduction was a tolling motion. He also argues that the holding in

Alexander is unconstitutional.

“We review de novo a district court’s determination that a habeas petition is

time-barred.” Cramer v. Sec’y, Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir.

2006). Because Baker is proceeding pro se, his argument is “entitled to liberal

construction.” See Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir.

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2000). However, appellate review is limited by the scope of the COA. Murray v.

United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).

Section 2254 petitions are subject to a one-year statute of limitations. 28

U.S.C. § 2244(d)(1). This limitations period runs from the latest of one of four

events, including the date on which the judgment became final. Id. “The time

during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall

not be counted toward any period of limitation.” 28 U.S.C. § 244(d)(2). To

qualify as an “application for State post-conviction or other collateral review,” a

pleading must actually seek “review” by making a good faith request for legal

relief from the court. Sibley v. Culliver, 377 F.3d 1196, 1200-01 (11th Cir. 2004).

Rule 3.800(c) states that “[a] court may reduce or modify . . . a legal

sentence imposed by it.” Fla.R.Crim.P. 3.800(c). “While Rule 3.800(c) does not

enumerate any basis for which a petitioner may seek to reduce or modify his

sentence, it presupposes that the sentence the court is being asked to reduce or

modify is ‘a legal sentence.’” Alexander, 523 F.3d at 1295. A panel of this Court

has previously held that a Rule 3.800(c) motion is not a tolling motion under

§ 2244(d)(2). Id. at 1297-98. In this Circuit, a panel is bound by a prior panel

decision even if it is convinced that the prior decision is wrong. United States v.

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Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc). We must follow that

prior panel decision until such time as it is overruled by either this Court sitting en

banc or the U.S. Supreme Court. Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.

1997).

In Alexander, the panel noted that a Rule 3.800(c) motion “assumes that the

sentence sought to be modified or reduced is legal and functions effectively as a

procedure for a petitioner to request leniency from the sentencing court based on

mitigating circumstances.” 523 F.3d at 1295. A tolling motion must contain some

form of legal analysis. Id. at 1297. Therefore, relying on other circuit’s language,

we conclude that a Rule 3.800(c) motion that was only a plea for leniency, but not

an attack on the constitutionality or legal correctness of a sentence, was not a

tolling motion. Id. at 1297-99. We later clarified that a state court motion is not a

tolling motion unless it attacks the legality of the underlying sentence or

conviction. Davis v. Barrow, 540 F.3d 1323, 1324 (11th Cir. 2008).

Here, Baker is only arguing that the Tenth Circuit’s contrary holding in

Robinson is a better rule than the one we adopted in Alexander. However, because

Alexander’s holding is directly on point, this Court is bound to apply Alexander.

See Cargill, 120 F.3d at 1386. Therefore, Baker’s Rule 3.800(c) motions were not

tolling motions under § 2244(d)(2). See Alexander, 523 F.3d 1297-99.

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Furthermore, we reject Baker’s argument that the Alexander holding is

unconstitutional. Accordingly, after review of the parties’ briefs and consideration

of the record, we affirm the district court’s order denying habeas relief.

AFFIRMED.

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