[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10558 ELEVENTH CIRCUIT
NOV. 09, 2011
________________________
JOHN LEY
CLERK
D.C. Docket No. 8:04-cv-02176-RAL-TBM
JASON DIRK WALTON,
llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
llllllllllllllllllllllllllllllllllllllllRespondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 09, 2011)
Before CARNES, HULL and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
The issue in this appeal is whether Jason Walton’s second state petition for
a writ of habeas corpus was “properly filed,” under the Antiterrorism and Effective
Death Penalty Act, so as to toll the one-year limitation period for filing a federal
petition for a writ of habeas corpus. 28 U.S.C. § 2244(d)(2). A Florida court
convicted Walton of three murders and sentenced him to death, and the Florida
Supreme Court later affirmed Walton’s convictions, Walton v. State, 481 So. 2d
1197 (Fla. 1985), and death sentences, Walton v. State, 547 So. 2d 622 (Fla.
1989). In 1990, Walton filed his first applications for state collateral review. On
June 30, 2003, the Florida Supreme Court affirmed the denial of Walton’s motion
for postconviction relief and denied his first petition for a writ of habeas corpus.
Walton v. State, 847 So. 2d 438 (Fla. 2003). Meanwhile, one week earlier, on
June 23, 2003, Walton filed a second state habeas petition, and on October 3,
2003, the Florida Supreme Court denied that petition as successive. The Florida
Supreme Court did not address whether Walton’s second habeas petition was
timely. On September 30, 2004, Walton filed his federal petition for a writ of
habeas corpus. The district court held that, because Walton’s second state petition
was untimely, see Fla. R. Crim. P. 3.851(d)(3); Fla. R. App. P. 9.142(a)(5) (2010)
(amended 2011), Walton’s second state petition was not properly filed so as to toll
the federal limitation period. The district court dismissed Walton’s federal habeas
petition as untimely. We affirm.
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I. BACKGROUND
Walton committed a triple execution-style murder in 1982 and received
three death sentences. The Florida Supreme Court affirmed his convictions, but
vacated his death sentences and remanded for resentencing. Walton v. State, 481
So. 2d 1197 (Fla. 1985). Walton again was sentenced to death for each murder,
and the Florida Supreme Court affirmed. Walton v. State, 547 So. 2d 622 (Fla.
1989).
On October 2, 1990, Walton filed in the Florida Supreme Court a petition
for extraordinary relief and for a writ of habeas corpus in which he sought a stay
of execution so as to pursue his remedies for collateral relief. The Florida
Supreme Court stayed Walton’s execution. On December 17, 1990, Walton filed
in a state trial court a motion for postconviction relief, under Florida Rule of
Criminal Procedure 3.850, and he filed in the Florida Supreme Court an
amendment to his petition for extraordinary relief and for a writ of habeas corpus.
The trial court denied Walton’s motion for postconviction relief, and Walton
appealed to the Florida Supreme Court. The Florida Supreme Court reserved
ruling on the habeas petition and remanded for further consideration of Walton’s
motion for relief under Rule 3.850. Walton v. Dugger, 634 So. 2d 1059 (Fla.
1993). On remand, the trial court again denied Walton’s motion under Rule 3.850,
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and Walton again appealed to the Florida Supreme Court.
While Walton’s appeal of the denial of his postconviction motion and his
state habeas petition were still pending, the Supreme Court of the United States
decided Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). Soon afterward,
Walton filed in the Florida Supreme Court a motion for supplemental briefing to
allow the parties to address the effect, if any, of Ring on his case. On August 23,
2002, the court denied Walton’s motion.
On May 29, 2003, the Florida Supreme Court affirmed the denial of
Walton’s motion under Rule 3.850 and denied Walton’s first habeas petition,
Walton v. State, 847 So. 2d 438 (Fla. 2003), and the court issued its mandate on
June 30, 2003. Meanwhile, a week earlier, on June 23, 2003, Walton filed in the
Florida Supreme Court a second petition for a writ of habeas corpus in which he
argued that he was entitled to relief under Ring. On October 3, 2003, the Florida
Supreme Court denied Walton’s petition as successive. Walton v. State, No.
SC03-1151 (Fla. Oct. 3, 2003).
When Walton filed a federal petition for a writ of habeas corpus on
September 30, 2004, within a year of the denial of his second state habeas petition,
but more than a year after the denial of his first state habeas petition, the district
court ruled that Walton’s petition was untimely. Because Walton’s conviction
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became final before the effective date of the Antiterrorism and Effective Death
Penalty Act, April 24, 1996, Walton had one year from that date to file his federal
petition. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998).
The one-year limitation period is tolled as long as “properly filed” applications for
state postconviction or other collateral review are pending. 28 U.S.C. §
2244(d)(2). The district court reasoned that Walton had properly filed
applications pending until the Florida Supreme Court issued its mandate that
affirmed the denial of his motion for postconviction relief and denied his first
petition for a writ of habeas corpus on June 30, 2003. Based on that reasoning, the
limitation period expired on June 29, 2004. Because Walton did not file his
federal petition for a writ of habeas corpus until September 30, 2004, the district
court dismissed the petition as untimely.
Walton argued that his second state habeas petition, filed on June 23, 2003,
tolled the limitation period until its denial on October 3, 2003, but the district
court rejected his argument. The district court reasoned that Walton’s second state
habeas petition was not properly filed under Florida law, which required all habeas
petitions in death penalty cases to “be filed simultaneously” with the initial brief in
the appeal of the denial of a motion for postconviction relief. Fla. R. Crim. P.
3.851(d)(3); Fla. R. App. P. 9.142(a)(5) (2010) (amended 2011).
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The district court denied Walton’s application for a certificate of
appealability, but we granted him a certificate of appealability with respect to one
issue: whether Walton’s second petition to the Supreme Court of Florida for a writ
of habeas corpus was timely. See 28 U.S.C. 2244(d)(2).
II. STANDARD OF REVIEW
We review de novo a district court’s denial of a petition for a writ of habeas
corpus. Trotter v. Sec’y, Dep’t of Corr., 535 F.3d 1286, 1290 (11th Cir. 2008)
(citing Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998)).
III. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act, a prisoner serving
a sentence for a state conviction has one year from the date his judgment of
conviction and sentence becomes final to file a petition for a writ of habeas corpus
in federal court. 28 U.S.C. § 2244(d)(1)(A). The limitation 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). An application for
postconviction relief filed in state court is not “properly filed” if it is untimely.
Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S. Ct. 1807, 1810 (2005).
A Florida prisoner sentenced to death may file a petition for postconviction
relief in a state trial court and a petition for a writ of habeas corpus in the Florida
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Supreme Court, but in death penalty cases, “all petitions for extraordinary relief”
must be filed in the Florida Supreme Court simultaneously with the initial brief in
the appeal of a denial of a motion for postconviction relief. Fla. R. Crim. P.
3.851(d)(3); Fla. R. App. P. 9.142(a)(5) (2010) (amended 2011). Walton did not
file his second habeas petition simultaneously with his initial brief in the appeal of
the denial of his motion for postconviction relief.
Because Walton’s second state habeas petition was not filed simultaneously
with his initial brief in the appeal of the denial of his motion for postconviction
relief, his second petition did not toll the federal limitation period. The
simultaneous filing requirement is a timing requirement, and “time limits, no
matter their form, are ‘filing’ conditions.” Pace, 544 U.S. at 417, 125 S. Ct. at
1814. An untimely state petition is not “properly filed” and cannot toll the federal
limitation period. Id. at 410, 125 S. Ct. at 1810.
Walton argues that the simultaneous filing rule was not firmly established
and regularly followed when he filed his second petition and that the district court
erred by applying it. He relies on our decision in Siebert v. Campbell, where we
stated “that a rule governing filings must be firmly established and regularly
followed before noncompliance will render a petition improperly filed for the
purpose of AEDPA’s tolling provision.” 334 F.3d 1018, 1025 (11th Cir. 2003)
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(internal quotation marks omitted). Walton alleges that several petitioners have
filed untimely applications for collateral relief in the Florida Supreme Court,
which denied them on the merits. See, e.g., Johnson v. State, 904 So. 2d 400 (Fla.
2005); Breedlove v. Crosby, 916 So. 2d 726 (Fla. 2005); Chandler v. Crosby, 916
So. 2d 728 (Fla. 2005); Porter v. Crosby, 840 So. 2d 981 (Fla. 2003). Walton
contends that, because the Florida Supreme Court declined to dismiss those
petitions as untimely, the simultaneous filing rule has not been “firmly established
and regularly followed.”
Walton’s argument fails. Our decision in Siebert addressed a different
issue, and the Supreme Court later abrogated our ruling on that issue. An
Alabama court had dismissed Siebert’s motion for postconviction relief as
untimely, but we held that Siebert’s untimely motion nevertheless had been
properly filed and had tolled the limitation period under section 2244(d)(2).
Siebert, 334 F.3d at 1031. We reasoned that the jurisdictional nature of a
limitation period for postconviction motions in Alabama had not been “firmly
established and regularly followed” when Siebert had filed his motion because
“noncompliance with the . . . time bar did not divest courts of discretion to
entertain late petitions should they choose to do so, at least in the absence of an
appropriate pleading by the state of a limitations defense.” 334 F.3d 1027. In
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Allen v. Siebert, 552 U.S. 3, 7, 128 S. Ct. 2, 4 (2007), the Supreme Court
summarily reversed our judgment that Siebert’s untimely motion had been
properly filed under section 2244(d)(2). The Court held that “[w]hen a
postconviction petition is untimely under state law, that is the end of the matter for
purposes of § 2244(d)(2).” Id. at 7, 128 S. Ct. at 4 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 414, 125 S. Ct. 1807, 1812 (2005)) (internal quotation marks and
additional citation omitted)). “Because Siebert’s petition for state postconviction
relief was rejected as untimely by the Alabama courts, it was not ‘properly filed’
under § 2244(d)(2).” Id.
In contrast with the ruling of the Alabama court in Siebert, the Florida
Supreme Court did not address whether Walton’s second habeas petition was
timely, and Walton fails to explain how his second petition could have been
timely. As mentioned above, Walton cites several decisions in which the Florida
Supreme Court denied untimely petitions on the merits, but the Supreme Court has
explained that federal courts cannot use an adverse “merits determination as an
‘absolute bellwether’ (as to timeliness).” Evans v. Chavis, 546 U.S. 189, 198, 126
S. Ct. 846, 852 (2006). We cannot, for example, “reject [a state’s] time bar simply
because a court may opt to bypass the [timeliness] assessment and summarily
dismiss a petition on the merits.” Walker v. Martin, 562 U.S. ____, 131 S. Ct.
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1120, 1129 (2011). In Mann v. Moore, the Florida Supreme Court made clear
“THAT IN CAPITAL POSTCONVICTION LITIGATION, EFFECTIVE
JANUARY 1, 2002, all petitions for extraordinary relief, including habeas corpus
petitions, must be filed simultaneously with the initial brief appealing the denial of
a rule 3.850 motion.” 794 So.2d 595, 598 (Fla. 2001). “In response [to the court’s
announcement in Mann] and prior to January 1, 2002, many . . . capital defendants
who previously had filed appeals to the denial of their 3.850 motions filed initial
habeas corpus petitions.” Cherry v. Moore, 829 So.2d 873, 875 n.1 (Fla. 2002).
Walton filed his second habeas petition after January 1, 2002, and the Florida
Supreme Court summarily denied his petition as successive.
When a state court has not addressed the timeliness of an application for
collateral relief, the federal court “must itself examine the delay in each case and
determine what the state courts would have held in respect to timeliness.” Evans
v. Chavis, 546 at 198, 126 S. Ct. at 852. We “will not allow the tolling of
AEDPA’s limitations period when it is clear that the petitioner failed to seek
timely review in state court.” Gorby v. McNeil, 530 F.3d 1363, 1368 (11th Cir.
2008). Walton’s second state habeas petition was untimely, and the district court
did not err by dismissing his petition.
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IV. CONCLUSION
The dismissal of Walton’s petition for a writ of habeas corpus is
AFFIRMED.
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