Michael Anthony Ford v. Michael W. Moore

                                                                     [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                JULY 02, 2002
                                No. 01-10317                 THOMAS K. KAHN
                          ________________________                CLERK

                     D. C. Docket No. 00-01451-CV-T-24C

MICHAEL ANTHONY FORD,

                                                            Petitioner-Appellant,

                                     versus

MICHAEL W. MOORE,
ROBERT A. BUTTERWORTH,

                                                         Respondents-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________
                                (July 2, 2002)


Before BLACK and HULL, Circuit Judges, and HANCOCK*, District Judge.

PER CURIAM:


      *
       Honorable James H. Hancock, U.S. District Judge for the Northern District
of Alabama, sitting by designation.
      This case involves the habeas corpus time limitations set forth in the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. No.

104-132, §101, 110 Stat. 1214, 1217 (codified in relevant part at 28 U.S.C. §2244

(1996)). AEDPA sets forth a one-year statute of limitations for a prisoner to apply

for federal habeas relief from the judgment of a state court. The limitations period

is tolled, however, while a properly filed state post-conviction petition or other

collateral review attacking the pertinent judgment or claim is pending. At issue in

this matter is whether AEDPA’s statute of limitations is tolled when a state

collateral attack does not present a federally cognizable claim. Upon review, we

conclude the limitations period is tolled in such circumstances.

                                 I. BACKGROUND

      On or about July 17, 2000, Appellant Michael Anthony Ford filed a federal

habeas petition challenging his State of Florida conviction. In his petition,

Appellant alleged the following facts:

      On January 7, 1994, Appellant was convicted of attempted robbery with a

firearm and attempted first degree murder with a firearm in Polk County, Florida.

Appellant was sentenced to 30 years’ imprisonment for the attempted robbery

conviction and 27 years’ imprisonment for the attempted murder conviction. The

sentences were to run consecutively.


                                          2
      Following his convictions, Appellant filed a direct appeal in the Florida state

courts. Appellant’s conviction was affirmed by the Second District Court of

Appeals for the State of Florida on August 18, 1995.

      After exhausting his right to direct appeal, Appellant commenced collateral

challenges to his conviction and sentence. On November 15,1995, Appellant filed a

motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure

3.850.1 In his motion, Appellant argued his sentence was unconstitutional because

it exceeded statutory limitations, he was denied the right to testify on his own

behalf, and he received ineffective assistance from counsel. The motion was

denied on November 26, 1996. On appeal, the Second District Court of Appeals

for the State of Florida affirmed. Although Appellant sought rehearing, his request

was denied and the mandate issued on November 2, 1998.

      Following denial of his Rule 3.850 motion for relief, Appellant filed a

motion to correct an illegal sentence pursuant to Florida Rule of Criminal




      1
        A Rule 3.850 motion provides relief from judgment or release from custody
on the following grounds: (1) the judgment or sentence violated the Constitution or
state or federal laws; (2) the court lacked jurisdiction to enter the judgment; (3) the
court lacked jurisdiction to impose the sentence; (4) the sentence exceeded the
maximum authorized by law; (5) the plea was involuntary; or (6) the judgment or
sentence is otherwise subject to collateral attack. See Fla. R. Crim. P. 3.850
(2001).
                                           3
Procedure 3.800.2 The Rule 3.800 motion was filed on March 9, 1999. In his

motion, Appellant alleged his sentence was unconstitutional because it exceeded

statutory limitations. The motion was denied on May 10, 1999. On appeal, the

Second District Court of Appeals for the State of Florida affirmed. Its mandate

was issued on November 23, 1999.

      On July 12, 2000, Appellant executed a pro se petition in federal court for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Appellant

raised the same claims presented in his earlier Rule 3.850 motion.3 The district

court dismissed the petition as untimely. Although the district court determined

AEDPA’s one-year statute of limitations, set forth in 28 U.S.C. § 2244(d), was

tolled during the pendency of Appellant’s Rule 3.850 motion, the court concluded

the statute of limitations was not likewise tolled during the pendency of

Appellant’s Rule 3.800 motion because the Rule 3.800 motion did not present a

federally cognizable claim. Appellant timely filed this appeal.




      2
       A Rule 3.800 motion may be filed to correct an illegal sentence, or to
reduce or modify a legal sentence. See Fla. R. Crim. P. 3.800 (2001).
      3
        Appellant alleged his sentence was unconstitutional because it exceeded
statutory limitations, he was denied the right to testify on his own behalf, and he
received ineffective assistance from counsel.
                                          4
                           II. STANDARD OF REVIEW

      We review de novo a district court’s determination that a petition for federal

habeas corpus relief is time-barred under section 2244(d). Steed v. Head, 219 F.3d

1298, 1300 (11th Cir. 2000).

                                 III. DISCUSSION

      Under AEDPA, a prisoner in state custody generally must apply for a federal

writ of habeas corpus within one year after the judgment of the state court becomes

final. See 28 U.S.C. § 2244(d)(1) (2000). The one-year limitations period,

however, is tolled while “a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending.”

Id. § 2244(d)(2). In this case, Appellant pursued both direct and collateral review

in state court. The parties agree the one-year limitations period was tolled during

Appellant’s direct appeal and his Rule 3.850 collateral challenge. At issue is

whether the statute of limitations also was tolled during Appellant’s Rule 3.800

collateral challenge. If the time Appellant’s Rule 3.800 motion was pending

qualifies for tolling under AEDPA, Appellant’s federal habeas petition was timely;

otherwise it was not.




                                          5
      The State of Florida4 concedes Appellant’s Rule 3.800 motion was “properly

filed” as required by AEDPA’s tolling provision. See Artuz v. Bennett, 531 U.S. 4,

8, 121 S. Ct. 361, 363-64 (2000).5 The State also concedes Appellant’s Rule 3.800

motion constituted an application for collateral review with respect to the pertinent

judgment. Nevertheless, the State asserts the Rule 3.800 motion did not toll

AEDPA’s statute of limitations because the action did not contain a federally

cognizable claim.6 In resolving this issue, we begin by scrutinizing the language


      4
       In his petition for habeas corpus relief, Appellant named Michael W.
Moore, Secretary of the Department of Corrections for the State of Florida, and
Robert A. Butterworth, Attorney General of the State of Florida, as respondents.
Mr. Moore and Mr. Butterworth, in defending the action, represent the interests of
the State of Florida.
      5

      “An application is ‘filed,’ as that term is commonly understood, when it is
      delivered to, and accepted by, the appropriate court officer for placement
      into the official record. And an application is ‘properly filed’ when its
      delivery and acceptance are in compliance with the applicable laws and rules
      governing filings. These usually prescribe, for example, the form of the
      document, the time limits upon its delivery, the court and office in which it
      must be lodged, and the requisite filing fee.”

Id. (citations omitted).
      6
       We note at the outset of this opinion that Appellant has not conceded his
Rule 3.800 motion failed to raise a federally cognizable claim. “A sentence that
exceeds the statutory maximum has traditionally been viewed as a violation of the
eighth amendment’s prohibition against cruel and unusual punishment.” Ralph v.
Blackburn, 590 F.2d 1335, 1337 (5th Cir. 1979); see also Echols v. Thomas, 33
F.3d 1277, 1279 (11th Cir. 1994) (“Although Echols’ sentencing claim ultimately
turns on a question of State law, it properly falls within the scope of federal habeas
                                          6
of AEDPA’s tolling provision. Then, we examine the cases discussing the

provision.

      A. Language of AEDPA’s Tolling Provision

      As with any question of statutory interpretation, we begin by examining the

text of the statute to determine whether its meaning is clear. See Hughes Aircraft

Co. v. Jacobson, 525 U.S. 432, 438, 119 S. Ct. 755, 760 (1999); Cmty. for Creative

Non-Violence v. Reid, 490 U.S. 730, 739, 109 S. Ct. 2166, 2172 (1989); United

States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999). “In construing a statute

we must begin, and often should end as well, with the language of the statute

itself.” United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc)

(quoting Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997)). We

do this because we “presume that Congress said what it meant and meant what it

said.” Steele, 147 F.3d at 1318.




corpus review because ‘the eighth amendment bars a prison sentence beyond the
legislatively created maximum.’”). A Rule 3.800 motion is reserved for cases in
which the sentence imposed is not authorized by law such as “where the sentence
exceeds the statutory maximum sentence for the crime charged.” Wyche v. State,
624 So. 2d 830, 832 (Fla. 1st DCA 1993). We need not reach, however, whether
Appellant’s Rule 3.800 motion raises a federal claim because we conclude his Rule
3.800 motion tolls AEDPA’s limitations period even if it only contains a state law
claim.
                                         7
      The relevant tolling provision of AEDPA provides: “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 under this subsection.” 28 U.S.C. § 2244(d)(2). The

phrase “judgment or claim” is not defined by the statute, but its meaning is not

ambiguous.

      As is apparent from the full text of section 2244(d), the term “judgment” is

distinct from the term “claim.” Section 2244(d)(1), which precedes the tolling

provision, states: “A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a State

court.” 28 U.S.C. §2244(d)(1) (emphasis added). Then, in sections 2244(d)(1)(A)

and (D), the limitations period is statutorily prescribed to run from either “the date

on which the judgment became final” or “the date on which the factual predicate of

the claim or claims presented could have been discovered through the exercise of

due diligence.” 28 U.S.C. §2244(d)(1)(A), (d)(1)(D) (emphasis added). Reading

the text of section 2244(d) in its entirety, it is clear Congress understood the

ordinary meaning of the term “judgment,” and that such term was not synonymous

with “claim.”




                                           8
      The language of the statute expressly provides tolling for any properly filed

collateral challenge relating to a judgment. By its own terms, the statute does not

limit tolling solely to collateral attacks which contain federally cognizable claims.

Rather, the statute specifically provides tolling for any post-conviction petition for

relief with respect to the pertinent judgment. Construing AEDPA’s tolling

provision to apply only to state challenges involving a federal claim renders the

term “judgment” superfluous. See Legal Envtl. Assistance Found., Inc. v. EPA,

276 F.3d 1253, 1258 (11th Cir. 2001) (“[I]t is an elementary principle of statutory

construction that, in construing a statute, we must give meaning to all the words in

the statute.”); United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.

1991) (“A basic premise of statutory construction is that a statute is to be

interpreted so that no words shall be discarded as being meaningless, redundant, or

mere surplusage.”). To give effect to the clear language of the statute, we must

conclude AEDPA’s statute of limitations is tolled while a state post-conviction

petition or other collateral review attacking the pertinent judgment is pending

regardless of whether the basis of the attack is grounded in federal or state law.

B. Cases discussing AEDPA’s tolling provision

      Since its enactment in 1996, only three circuits have directly addressed the

issue of whether AEDPA’s one-year statute of limitations is tolled during the


                                           9
pendency of a state post-conviction petition or other application for collateral

review that does not contain a federally cognizable claim.7 The Sixth Circuit,

relying primarily on the federal habeas exhaustion provision and principles of

comity, concluded AEDPA’s limitations period is tolled only if a prisoner includes

in his state post-conviction petition a federal or constitutional law issue which also

is raised in his federal habeas petition. See Austin v. Mitchell, 200 F.3d 391 (6th

Cir. 1999). The Ninth Circuit and Seventh Circuit, relying on the plain language of

AEDPA’s tolling provision, determined the limitations period is tolled so long as

the state post-conviction petition attacks the pertinent judgment or claim. See

Carter v. Litscher, 275 F.3d 663 (7th Cir. 2001); Tillema v. Long, 253 F.3d 494

(9th Cir. 2001).




      7
        Appellant argues this Court addressed the issue in Webster v. Moore, 199
F.3d 1256 (11th Cir. 2000). Webster, however, merely addressed the “properly
filed” requirement of AEDPA’s tolling provision. Id. at 1257-59. Nonetheless,
Webster set forth the requirements the petitioner needed to establish for his federal
habeas petition to be timely: (1) the motions for post-conviction relief were
properly filed; and (2) the motions were pending for a sufficient length of time. Id.
at 1257-58. From these requirements, it could be implied there is no requirement
state post-conviction petitions must contain a federally cognizable claim. We,
however, did not squarely address the issue in Webster.
                                          10
       In Austin, the Sixth Circuit analogized AEDPA’s tolling provision to the

exhaustion provision of the basic federal habeas statute, 28 U.S.C. § 2254(c).8 200

F.3d at 394. The Supreme Court has held the federal habeas exhaustion provision

is not meant to apply to purely state law or state constitutional claims. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732 (1999). Austin,

therefore, reasoned AEDPA’s tolling provision, which also is part of the basic

federal habeas statute, likewise was not meant to apply to state post-conviction

petitions or collateral challenges which do not contain a federal claim. 200 F.3d at

394.

       Subsequent to the Sixth Circuit’s decision in Austin, the Supreme Court

discussed AEDPA’s tolling provision in the context of addressing the “properly

filed” requirement. See Artuz v. Bennett, 531 U.S. 4, 10, 121 S. Ct. 361, 364-65

(2000). Despite recognizing that both parties advanced arguments based on the

habeas statute’s exhaustion provision, the Court declined to address those

arguments, stating:

       Whatever merits these and other policy arguments may have, it is not
       the province of this Court to rewrite the statute to accommodate them.


       8
       The federal habeas exhaustion provision states: “An applicant shall not be
deemed to have exhausted the remedies available in the courts of the State, within
the meaning of this section, if he has the right under the law of the State to raise, by
any available procedure, the question presented.” 28 U.S.C. § 2254(c) (2000).
                                          11
      We hold as we do because respondent’s view seems to us the only
      permissible interpretation of the text -- which may, for all we know,
      have slighted policy concerns on one or the other side of the issue as
      part of the legislative compromise that enabled the law to be enacted.

Id. at 10, 121 S. Ct. at 365.

      In light of the Supreme Court’s opinion in Artuz, the Ninth Circuit and

Seventh Circuit relied primarily on the plain language of AEDPA’s tolling

provision when interpreting the statute. Both Circuits concluded the plain

language of the statute merely demands a state challenge relate to the pertinent

judgment or claim at issue, not that the state challenge must be based on a federally

cognizable claim. Despite relying on the plain language of the statute, both the

Ninth and Seventh Circuits addressed Austin’s policy-based reasoning. In doing

so, the Circuits highlighted the distinction between tolling and exhaustion. See

Carter, 275 F.3d at 665; Tillema, 253 F.3d at 499-501. As stated in Carter:

      A state court must be given the first opportunity to address the federal
      issue; but this exhaustion requirement can be satisfied on direct appeal
      as well as on collateral attack. Usually it is preferable to raise the
      federal question as soon as possible, which means at trial and on direct
      appeal. This does not imply, however, that state prisoners must
      proceed immediately from their direct appeals to federal collateral
      attacks. A state collateral proceeding based solely on state-law issues
      may avoid the need for federal relief, and a tolling rule permits
      prisoners to pursue such theories in state court without jeopardizing
      their ability to raise the federal constitutional issues later in federal
      court, if that proves to be necessary.



                                         12
275 F.3d at 665 (citations omitted).9 In addition to refuting Austin’s policy-based

reasoning, both Tillema and Carter emphasized Austin’s failure to recognize the

plain language of AEDPA’s tolling provision, which by its terms appears to allow

tolling for any state post-conviction or collateral challenge as long as it relates to

the pertinent judgment or claim at issue in the federal habeas action.

      For the reasons discussed above, we now join with the Ninth and Seventh

Circuits and conclude, based on the plain language of AEDPA’s tolling provision,


      9
       Similarly, Tillema commented:

      In any event, it is clear that our holding will advance, rather than
      undermine, the policies of comity and federalism upon which AEDPA
      was enacted. Tolling AEDPA’s limitations period during the
      pendency of a state collateral proceeding that attacks the pertinent
      judgment is consistent not only with the plain language of the statute,
      but also with the principle that state courts should be afforded “the
      unfettered first opportunity to review the prisoner’s claim and to
      provide any necessary relief.” Allowing the state that opportunity
      without premature federal interference “reinforces comity and respect
      between our respective judicial systems,” and may well obviate the
      need for any federal review at all: when a state court is willing to
      entertain a challenge to the validity of the pertinent judgment, a result
      that is favorable to the petitioner will ordinarily avert any federal
      intervention regarding the legality of the prisoner’s continued
      confinement. By contrast, were we to deny tolling of AEDPA’s
      limitation period on the ground suggested by the state, habeas
      petitioners might be compelled to forego available state-law remedies
      so as not to forfeit their opportunities for federal review of substantial
      federal claims that were exhausted fully on direct appeal.

253 F.3d at 501 (citations omitted).
                                           13
the federal habeas statutory limitations period is tolled regardless of whether a

properly filed state post-conviction petition or other collateral review raises a

federally cognizable claim.

                                  IV. CONCLUSION

      Appellant’s Rule 3.800 motion attacked the pertinent judgment likewise the

subject of his federal habeas petition. As a result, Appellant’s AEDPA statute of

limitations was tolled during the pendency of the Rule 3.800 motion. Accordingly,

the decision of the district court is reversed.

      REVERSED.




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