[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 10, 2002
No. 00-16544 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 99-00682-CV-ORL-18A
CARL D. BOND,
Petitioner-Appellant,
versus
MICHAEL MOORE, Secretary,
Florida Department of Corrections,
ROBERT A. BUTTERWORTH,
Attorney General,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 10, 2002)
Before BIRCH and BLACK, Circuit Judges, and PROPST*, District Judge.
*
Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
BLACK, Circuit Judge:
Appellant Carl D. Bond, a Florida state prisoner, appeals a decision of the
district court dismissing his petition for a writ of habeas corpus as time-barred
under the one-year statute of limitations established by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). Appellant
argues his petition was not time-barred because the limitations period did not begin
to run until the 90-day window during which Appellant could have petitioned the
United States Supreme Court for a writ of certiorari expired.1 We agree with
Appellant.
I. BACKGROUND
The following procedural facts are relevant to the resolution of this appeal.
Appellant was convicted of two counts of committing a lewd or lascivious act in
the presence of a minor on May 13, 1992, and sentenced to two concurrent 30-year
sentences. Appellant appealed to the Florida Fifth District Court of Appeal. Bond
1
Appellant asserts in his brief the district court also erred by failing to toll the statute of
limitations under 28 U.S.C. § 2244(d)(2) during the pendency of one of his motions for post-
conviction relief filed under Florida Rule of Criminal Procedure 3.850. The district court
determined the motion, which was virtually identical to a Rule 3.850 previously filed by
Appellant and denied by the state trial court, was successive and therefore not “properly filed”
within the meaning of 28 U.S.C. § 2244(d)(2). In light of several recent decisions by the United
States Supreme Court and this Court, the State concedes Appellant’s second Rule 3.850 motion
should have tolled the statute of limitations regardless of whether it was successive. See Artuz v.
Bennett, 531 U.S. 4, 9, 121 S. Ct. 361, 364 (2000); Weekley v. Moore, 244 F.3d 874, 876 (11th
Cir. 2001); Hardy v. Sec’y for the Dep’t of Corrs., 246 F.3d 1300, 1302 (11th Cir. 2001).
2
v. State, 642 So. 2d 674 (Fla. Dist. Ct. App. 1994). After several procedural
modifications, the court of appeals affirmed the convictions and the sentence on
July 5, 1996. Bond v. State, 675 So. 2d 184 (Fla. Dist. Ct. App. 1996). On July
24, 1996, Appellant filed a motion for discretionary review with the Florida
Supreme Court. In an order dated November 4, 1996, the Florida Supreme Court
denied Appellant’s petition, adding the statement, “No Motion for Rehearing will
be entertained by the Court.” Bond v. State, 684 So. 2d 1350 (Fla. 1996). Despite
this admonition, Appellant filed a motion for rehearing with the Florida Supreme
Court. This motion was denied on December 13, 1996.
His direct appeals exhausted, Appellant spent the next two years filing a
steady stream of post-conviction motions in state courts, seeking collateral review
of his claims. Appellant filed a petition for all writs jurisdiction with the Florida
Supreme Court on June 17, 1997. This petition was denied on September 12,
1997. Bond v. Fifth Dist. Ct. App., 699 So. 2d 1371 (Fla. 1997).
On September 18, 1997, Appellant filed a motion for post-conviction relief
with the state trial court under Florida Rule of Criminal Procedure 3.850. This
motion was denied by the trial court on March 9, 1998, and Appellant appealed on
April 8, 1998. The Fifth District Court of Appeal affirmed the trial court’s denial
3
of Appellant’s motion on August 7, 1998, issuing the mandate on October 10,
1998. Bond v. State, 717 So. 2d 83 (Fla. Dist. Ct. App. 1998).
Appellant filed a motion to correct an illegal sentence with the state trial
court under Florida Rule of Criminal Procedure 3.800(a) on April 30, 1998. The
trial court denied this motion on May 22, 1998, and Appellant appealed on June
22, 1998. The appellate court affirmed the trial court’s denial of Appellant’s Rule
3.800(a) motion on August 21, 1998, issuing the mandate on October 16, 1998.
Bond v. State, 717 So. 2d 1076 (Fla. Dist. Ct. App. 1998).
On October 13, 1998, Appellant filed a second Rule 3.850 motion with the
state trial court. The trial court denied this motion as impermissibly successive on
November 10, 1998. Appellant appealed, and the Fifth District Court of Appeal
affirmed the trial court’s decision on December 8, 1998, issuing the mandate on
December 28, 1998. Bond v. State, 727 So. 2d 945 (Fla. Dist. Ct. App. 1998).
Appellant filed a habeas corpus petition with the Fifth District Court of
Appeal on December 2, 1998, and the court of appeal denied this motion on
December 22, 1998. Appellant filed a federal habeas corpus petition with the
Middle District of Florida on June 3, 1999. It is the district court’s denial of this
petition as time-barred by 28 U.S.C. § 2244(d) that Appellant challenges in this
appeal.
4
II. STANDARD OF REVIEW
This Court reviews de novo a district court’s determination that a petition for
federal habeas corpus relief is time-barred under 28 U.S.C. § 2244(d). Steed v.
Head, 219 F.3d 1298, 1300 (11th Cir. 2000).
III. DISCUSSION
Section 2244(d)(1) of Title 28 U.S.C. provides, “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.” In most cases, including the
present case, the limitation period begins to run on “the date on which the
judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review . . . .” Id. This appeal presents the question whether
Appellant’s state judgment became final on November 4, 1996, when the Florida
Supreme Court denied Appellant’s motion for discretionary review; on December
13, 1996, when the Florida Supreme Court denied Appellant’s motion for a
rehearing; or on March 13, 1997, when Appellant’s time for filing a petition for
certiorari with the United States Supreme Court expired.2
2
The State argues the district court erred by beginning the limitation period on December
13, 1996, rather than on November 4, 1996, when the Florida Supreme Court denied Appellant’s
motion for discretionary review. The Florida Supreme Court stated in its order on November 4,
“No Motion for Rehearing will be entertained by the Court.” The State contends Appellant’s
subsequent motion for rehearing was a nullity, and should therefore not be considered “properly
filed” under 28 U.S.C. § 2244(d)(2).
5
Appellant contends the district court erred by beginning the limitations
period before his opportunity to file for a writ of certiorari with the United States
Supreme Court expired. The district court determined Appellant’s limitation
period began to run on December 13, 1996, when the Florida Supreme Court
denied his motion for a rehearing of Appellant’s previous motion for discretionary
review. Appellant submits he was entitled to file a petition for certiorari for 90
days after December 13, 1996, pursuant to Supreme Court Rule 13.13, and
therefore, the limitation period did not begin to run until March 13, 1997. The
answer to this question determines whether Appellant’s habeas petition was time-
barred under § 2244(d).
This Court recently addressed the time at which the statute of limitations
begins to run in the context of a habeas petition brought by a federal prisoner under
28 U.S.C. § 2255. Kaufmann v. United States, 282 F.3d 1336, 1339 (11th Cir.
2002). We stated:
We decline to address this issue because it does not affect the outcome of this appeal.
When we add 90 days to Appellant’s limitations period, see infra, his petition was timely filed
whether his state conviction became final on December 13 or on November 4. If we did address
this issue, we would follow precedent from this Court and the United States Supreme Court. See
Artuz v. Bennett, 531 U.S. 4, 8-9, 121 S. Ct. 361, 363-64 (2000); Glock v. Singletary, 65 F.3d
878, 883-84 (11th Cir. 1995) (en banc).
3
Supreme Court Rule 13.1 states, in pertinent part, “A petition for a writ of certiorari
seeking review of a judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the
order denying discretionary review.”
6
[A] “judgment of conviction becomes final” within the meaning of
§ 2255 as follows: (1) if the prisoner files a timely petition for
certiorari, the judgment becomes “final” on the date on which the
Supreme Court issues a decision on the merits or denies certiorari, or
(2) the judgment becomes “final” on the date on which the
defendant’s time for filing such a petition expires.
Id. Although Kaufmann was in the context of § 2255 rather than § 2244(d)4, the
limitations provisions under the two statutes are virtually identical. Section 2255
says the limitation period shall run from “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(1). Section 2244(d) says the
limitation period shall run from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). We recognized the similarity of the two
sections in Kaufmann:
[W]e presume that Congress intended the word “final” to have the
meaning articulated by the Supreme Court, and to have the same
meaning in both [§ 2255(1) and § 2244(d)(1)(A)]. . . . We note,
moreover, that there is no indication whatsoever in the AEDPA that
Congress intended to treat state and federal habeas petitioners
differently with regard to the period of limitation.
282 F.3d at 1339.
4
28 U.S.C. § 2255 sets out the limitations period for federal prisoners bringing habeas
petitions in federal court. 28 U.S.C. § 2244(d) sets out the limitations period for state prisoners
bringing habeas petitions in federal court.
7
Our decision in Kaufmann comports with the majority of the circuits that
have considered this question. See United States v. Gamble, 208 F.3d 536, 536
(5th Cir. 2000); United States v. Burch, 202 F.3d 1274, 1276-79 (10th Cir. 2000);
Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). Even the two circuits
that have decided § 2255 does not authorize ninety extra days to file for certiorari
acknowledged such time is expressly made available under § 2244(d)(1)(A).
United States v. Torres, 211 F.3d 836, 840 (4th Cir. 2000) (noting “the language
Congress used” in § 2244 “expands the period of time before the start of the
limitation period for filing a habeas petition beyond the date that marks the
conclusion of direct review of that judgment”); Gendron v. United States, 154 F.3d
672, 674 (7th Cir. 1998) (“In § 2244, Congress expressly included the period for
seeking review whether or not a petitioner elected to avail himself of the
opportunity.”). We see no reason to deny § 2244 petitioners the time to file for
certiorari with the United States Supreme Court where we have made such time
available to § 2255 petitioners.
Applying the rule in Kaufmann to the present case, Appellant was entitled to
file a petition for a writ of certiorari in the United States Supreme Court within 90
8
days of the entry of the judgment against him by the Florida Supreme Court.5 Sup.
Ct. R. 13.1. The statute of limitations under 28 U.S.C. § 2244(d) should not have
begun to run until this 90-day window had expired. Appellant’s state judgment
became final on December 13, 1996, when the Florida Supreme Court denied
Appellant’s motion for a rehearing. The statute of limitations should have begun to
run, therefore, on March 13, 1997.
IV. CONCLUSION
Appellant’s limitation period began to run on March 13, 1997. It was tolled
for a total of 553 days due to his numerous collateral state post-conviction motions.
Appellant’s federal habeas petition would have been due on September 17, 1999,
553 days from March 13, 1997. Appellant filed his petition on June 3, 1999. It
was therefore filed well within the limitations period set forth in 28 U.S.C.
§ 2244(d).
REVERSED and REMANDED.
5
The State argued for the first time at oral argument Appellant could not have filed for a
writ of certiorari with the United States Supreme Court because he had preserved no federal
statutory or constitutional claims in his previous state court appeals. We decline to consider this
argument because the State failed to raise it in its briefs. We consider issues and contentions not
timely raised in a party’s briefs to be abandoned. United States v. Ardley, 242 F.3d 989, 990
(11th Cir. 2001).
9