Ferreira v. Secretary, Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 7, 2007
No. 04-15761 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00859-CV-ORL-19KRS

ANTHONY FERREIRA,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

________________________

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

(August 7, 2007)

Before BLACK, PRYOR and COX, Circuit Judges.

BLACK, Circuit Judge:
Following its decision in Burton v. Stewart, __ U.S. __, 127 S. Ct. 793

(2007), the Supreme Court vacated this Court’s opinion in Ferreira v. Sec’y, Dep’t

of Corr., 183 F. App’x 885 (11th Cir. 2006), and remanded it for further

consideration in light of Burton. Previously, we held that Ferreira’s petition for a

writ of habeas corpus was time-barred. Ferreira, 183 F. App’x at 886. We

reasoned that when a petitioner who had been resentenced challenged only his

underlying conviction in a habeas petition, the one-year statute of limitations in the

Antiterrorism and Effective Death Penalty Act (AEDPA) runs from the date the

conviction became final, regardless of when the petitioner’s corrected sentence

became final. Id. at 887. After a thorough consideration of Burton and

reconsideration of our relevant precedent, we now hold that AEDPA’s statute of

limitations runs from the date the judgment pursuant to which the petitioner is in

custody becomes final, which is the date both the conviction and sentence the

petitioner is serving become final.

I. STATEMENT OF THE CASE

Anthony Ferreira was tried and convicted in a Florida state court. He

appealed his conviction through the state appellate system. On September 11,

1997, the Florida Supreme Court denied his appeal. Ninety days later, on

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December 10, 1997, his right to direct review terminated when he decided not to

file a petition for certiorari in the United States Supreme Court.

On August 18, 1998, 251 days after his right to direct review ended, Ferreira

filed a post-conviction motion in the Florida state system, tolling AEDPA’s one-

year statute of limitations. 28 U.S.C. § 2244(d). The state court denied the

motion, and issued the mandate on February 8, 2002. On June 2, 2002, Ferreira’s

statute of limitations to file a federal habeas petition expired. Twenty days later,

on June 24, 2002, Ferreira filed another post-conviction motion in the state system

to correct his sentence, which the state court granted. Ferreira was resentenced,

and the mandate finalizing that judgment issued on April 14, 2003. On June 10,

2003, 57 days after Ferreira’s corrected sentence became final, he filed his federal

habeas petition, including claims concerning only his original conviction and not

his subsequent resentencing.

The district court found the petition was untimely and dismissed it. We

granted a certificate of appealability (COA) limited to the following issue:

“Whether the district court properly found that a habeas corpus petitioner who was

resentenced and who only challenged the original trial proceedings [in his habeas

petition] without raising any challenge based on resentencing procedures is not

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entitled to the benefit of a new statute of limitations period commencing from the

date the resentencing judgment became final.” Ferreira, 183 F. App’x at 886.

Relying on Rainey v. Sec’y for the Dep’t of Corr., 443 F.3d 1323 (11th Cir.

2006), we held that “[b]ecause Ferreira’s habeas petition challenged only his

judgment of conviction, without raising any challenge to his resentencing

judgment, the AEDPA’s one-year statute of limitations began when his judgment

of conviction became final.” Ferreira, 183 F. App’x at 886. There is no dispute

that Ferreira’s habeas petition was filed more than 365 days after his conviction

and original sentence became final on December 10, 1997. Therefore, unless the

limitations period started anew when his corrected sentence became final, his

petition would be barred by AEDPA’s one-year statute of limitations. Our task,

therefore, is to determine, in light of Burton, whether we measure the statute of

limitations from the date Ferreira’s conviction became final (December 10, 1997)

or when his corrected sentence became final (April 14, 2003), when the only

claims in his federal habeas application concern his original conviction.

II. STANDARD OF REVIEW

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

federal habeas corpus relief was time-barred under AEDPA. Moore v. Crosby, 321

F.3d 1377, 1379 (11th Cir. 2003).

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III. DISCUSSION

AEDPA imposes a one-year statute of limitations on petitions for writs of

habeas corpus. In particular, 28 U.S.C. § 2244(d)(1) 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.” The limitation period in this

case runs 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.” Id.

§ 2244(d)(1)(A). The question in this case is what constitutes the judgment for the

statute of limitations when a petitioner has his sentence corrected.

We have examined this issue in two contexts. The first is where a petitioner

challenges his custody by bringing claims concerning both the corrected sentence

and the underlying conviction. See Walker v. Crosby, 341 F.3d 1240, 1241-42

(11th Cir. 2003). The second is where a petitioner challenges his custody by

bringing claims concerning only the underlying conviction. See Rainey v. Sec’y for

the Dep’t of Corr., 443 F.3d 1323, 1325-26 (11th Cir. 2006). In both prior cases

and the panel decision in Ferreira, this Court addressed the conviction and

sentence as separate and distinct judgments, each triggering the statute of

limitations depending on what claims the petitioner included in his habeas

application.

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This framework is altered by the holding in Burton. In light of Burton, the

judgment reflects the sentence the petitioner is serving and the underlying

conviction. A short discussion of both precedents is necessary to understand the

issue in this case and specifically how Burton affects our analysis.

A. Walker v. Crosby

In Walker, the petitioner’s statute of limitations began to run on AEDPA’s

effective date, April 24, 1996. The district court found, and this Court presumed,

petitioner’s statute of limitations period expired on April 23, 1997.1 Walker, 341

F.3d at 1242. In October 1997, petitioner filed a motion to correct his sentence in

state court, and the state court granted his motion. Id. at 1241.

On February 4, 1998, Walker was resentenced, and he subsequently

appealed his resentencing. Id. On February 24, 1998, while the appeal was

pending, Walker filed a federal habeas petition in the district court, which included

claims only concerning his original conviction. Id. The district court dismissed

the petition without prejudice for failure to exhaust remedies in state court. Id. at

1241-42. Thereafter, the mandate finalizing Walker’s resentencing issued on

June 5, 1998. After filing a host of state court post-conviction remedies tolling

1
The limitations period would have ended on April 24, 1997, the anniversary date of the
triggering event, which was AEDPA’s effective date. Whether the limitations period expired on
April 23 or 24 makes no difference to the disposition of this case.

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AEDPA’s statute of limitations, Walker filed his second habeas petition on

January 16, 2001. See id. at 1242 & n.3. The district court dismissed the petition

as time-barred. Id. at 1242.

This Court granted a COA on “whether individual claims within a single

habeas petition may be reviewed separately for timeliness.” Id. at 1241. This

Court interpreted the word “application” in § 2244(d)(1) to include all claims

within a single application. Id. at 1245; see also 28 U.S.C. § 2244(d)(1) (“A 1-

year period of limitation shall apply to an application for a writ of habeas corpus . .

. .”) (emphasis added). Consequently, when computing the statute of limitations,

we held the district court should determine if the “application” as a whole is

timely, without looking individually at the claims comprising the application.

Walker, 341 F.3d at 1245. In Walker, petitioner’s sentencing claims, along with

his claims regarding his underlying conviction, were a part of the timely

application, therefore we held the entire application was timely. Id. at 1246. We

noted that this interpretation of § 2244(d)(1) “allows for the resurrection of what

seem to be time-barred claims tagging along on the coattails of a timely claim.” Id.

at 1247.

Walker, thus, held that so long as the petitioner challenges his custody by

bringing claims concerning both the underlying conviction and the corrected

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sentence, the petitioner will get the benefit of the statute of limitations starting

anew on the date the corrected sentence becomes final. Id. This is true even

though both Walker’s underlying conviction and original sentence had been final

for more than one year before his sentence was corrected. Walker did not address

what would happen if a petitioner was resentenced but challenged his custody by

bringing claims only concerning his original conviction and did not include any

claims based on his corrected sentence. We addressed that very question in

Rainey.

B. Rainey v. Secretary for the Department of Corrections

In Rainey, the petitioner’s conviction and sentence were affirmed on direct

appeal on September 28, 1999. Rainey, 443 F.3d at 1325. Rainey’s federal statute

of limitations had expired before he filed a state motion for post-conviction relief

on February 13, 2001, asserting a claim of ineffective assistance of counsel and a

right to resentencing. Id. He was subsequently resentenced, and his corrected

sentence became final on December 13, 2002. Id. On March 27, 2003, after

validly tolling AEDPA’s statute of limitations, Rainey timely filed his federal

habeas petition. Id.

Unlike Walker, Rainey did not challenge his custody by bringing claims

concerning his corrected sentence, instead bringing only the claims of ineffective

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assistance of counsel. Id. Nevertheless, Rainey argued that, under Walker, his

application was timely because AEDPA’s statute of limitations began to run on

December 13, 2002, the date his new sentence became final, not February 13,

2001, when his conviction became final. Id. This Court disagreed and held the

petition was untimely. Id.

We reasoned that “[o]ur case law and the plain language of the [habeas]

statute support the conclusion that when a petitioner who has been resentenced

brings an application challenging only his original judgment of conviction, the

one-year statute of limitations under the AEDPA runs from the date the original

judgment of conviction became final and not the date the resentencing judgment

became final.” Id. at 1326. We distinguished Rainey from Walker by noting that

unlike the petitioner in Walker, Rainey’s “petition contested only his original

judgment of conviction and in no way challenged his resentencing judgment. A

challenge to resentencing is essential to . . . obtaining the benefit of a later

limitations period under the AEDPA.” Id. at 1327 (footnote omitted).

We held “[t]his result is consistent with the plain language of the

AEDPA[,]” even though it could require petitioners to file successive habeas

petitions. Id. at 1328-29. We advised petitioners to preserve their rights to

challenge their judgments of convictions by filing “a federal habeas petition

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challenging the original judgment of conviction during the initial one-year

limitations period.” Id. at 1329.

Pursuant to Rainey, a petitioner challenging the original sentence on direct

appeal or in state post-collateral proceedings would have to file a concurrent

federal habeas petition challenging the underlying conviction in order to preserve

the right to do so. If the direct appeal or state post-collateral proceeding is

unsuccessful, and the petitioner is not resentenced, he would then file a second

habeas petition to challenge his sentence in federal court. Both habeas petitions

would be based on the same conviction and sentence; therefore, the petitioner,

would need permission from the Court of Appeals to file the second.2 This is

precisely what occurred in Burton.

C. Burton v. Stewart

In Burton, the Supreme Court held the district court did not have jurisdiction

over Burton’s habeas petition because it constituted an unauthorized successive

petition. Burton, 127 S. Ct. at 796. Burton was convicted and sentenced in 1994

following his Washington jury trial. Id. at 794. After an unrelated prior conviction

was overturned, Burton filed a motion seeking resentencing, which was granted.

Id. at 795. The trial court resentenced Burton in 1996. Id. On direct review, the

2
If the petitioner was successful and resentenced, his petitions would not be successive
because they would be based on separate judgments. See Burton, 127 S. Ct. at 796.

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state courts upheld the 1996 conviction, reciting the 1994 verdict, but remanded for

another resentencing. Id. On March 16, 1998, the trial court entered a second

amended judgment and sentence for the 1994 guilty verdicts. Id. Burton appealed

the 1998 sentence. Id.

On December 28, 1998, while direct review of his 1998 sentence was

pending in state court, Burton filed a habeas petition in the United States District

Court. Id. He sought to attack his custody by bringing claims concerning the 1994

conviction, not the 1998 sentence. The district court and the Ninth Circuit denied

relief. Id. at 795-96. Three years after the 1998 habeas petition, the Washington

courts finally rejected his sentencing claims. Id. at 796. Subsequently, Burton

filed a second federal habeas petition without permission from the Ninth Circuit.

Id. In this petition, Burton attacked his custody by bringing claims concerning the

1998 sentence, not the 1994 conviction. Id. The Supreme Court held it was an

unauthorized successive petition, and the district court lacked jurisdiction. Id.

Integral to the Court’s holding was its interpretation of AEDPA. The Court

emphasized that AEDPA sets out procedures that a prisoner “in custody pursuant

to the judgment of a State court” must follow. Id. at 796; 28 U.S.C. § 2254(a).

The Court interpreted the judgment at issue to be based on both the conviction and

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the sentence the petitioner is serving. In Burton’s case, the 1998 judgment and

sentence together form the basis of his habeas petition:

When Burton filed his first petition, the 1998 petition, he was being
held in custody pursuant to the 1998 judgment, which had been
entered some nine months earlier. When he filed his second petition,
the 2002 petition, he was still being held in custody pursuant to the
same 1998 judgment. In short, Burton twice brought claims
contesting the same custody imposed by the same judgment of a state
court. As a result, under AEDPA, he was required to receive
authorization from the Court of Appeals before filing his second
challenge.

Id. at 796.

Thus, when AEDPA states, “The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Constitution or laws or treaties of

the United States,” the judgment to which AEDPA refers is the underlying

conviction and most recent sentence that authorizes the petitioner’s current

detention. 28 U.S.C. § 2254(a). The Court implies that if, in 1996 while

incarcerated pursuant to the 1996 judgment, Burton had challenged his custody by

only bringing claims concerning his 1994 conviction, his second habeas petition

would not have been successive because it challenged his custody under a different

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judgment, the 1998 judgment, based on the 1994 conviction and 1998 sentence.

See id. at 796, 798.

The Court rejected Burton’s argument that if he had waited to file a federal

petition until the state review of the 1998 sentence was complete, he risked losing

the opportunity to challenge his 1994 conviction in federal court due to AEDPA’s

one-year statute of limitations, an argument Rainey would have supported. Id. at

798-99. The same AEDPA language the Supreme Court interpreted when it

determined Burton filed an unauthorized successive petition, 28 U.S.C. § 2254,

appears in the statute of limitations. 28 U.S.C. §§ 2244(d)(1), 2254(a). AEDPA’s

limitations period is applicable to “a person in custody pursuant to the judgment of

a State court” and runs 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); see also Burton, 127 S. Ct. at 798. At the time Burton

filed both of his petitions, he was imprisoned under the 1998 judgment, which was

based on the 1996 conviction and the 1998 sentence. That judgment triggered

AEDPA’s statute of limitations, even if the habeas petition included claims

concerning the 1994 conviction. The Court stressed that “[f]inal judgment in a

criminal case means sentence. The sentence is the judgment.” Id. (quoting

Berman v. United States, 302 U.S. 211, 212, 58 S. Ct. 164, 166 (1937)). In

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Burton’s case, the “limitations period did not begin until both his conviction and

sentence became final.” Id. at 799 (emphasis in original).

The Supreme Court applied AEDPA and held that the judgment that forms

the basis of the habeas petition is the one that places the petitioner in custody. Id.

at 796. That interpretation was a logical step necessary to the Court’s holding that

Burton’s 2002 petition was successive and unauthorized. The Court’s

interpretation of AEDPA controls this case.

D. Burton’s Application to Ferreira

The main issue in Ferreira is whether the petitioner’s original conviction

triggered the running of AEDPA’s statute of limitations or whether the running of

the statute was triggered by the petitioner’s resentencing, when the habeas petition

only challenges the original 1997 conviction. 183 F. App’x at 886.

Applying the Supreme Court’s statutory interpretation in Burton, the statute

of limitations is triggered by the date the judgment, which is based on Ferreira’s

conviction and the sentence he is serving, becomes final. When Ferreira filed his

petition in the district court on June 10, 2003, he was “in custody pursuant to” the

2003 judgment, which was based on the December 10, 1997 conviction and the

April 14, 2003 sentence. 28 U.S.C. §§ 2254(a), 2244(d). Therefore, the April 14,

2003 judgment that imprisoned Ferreira controls the statute of limitations for this

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petition because the period begins to run when both the conviction and sentence

are final. Ferreira’s petition was timely because he filed it 57 days after the

April 14, 2003 judgment became final, well within the one-year statute of

limitations.

Burton makes clear that the writ and AEDPA, including its limitations

provisions, are specifically focused on the judgment which holds the petitioner in

confinement. What this Court has previously called the judgment of conviction

and the sentencing judgment together form the judgment that imprisons the

petitioner. Therefore, AEDPA’s statute of limitations begins to run from the date

both the conviction and the sentence the petitioner is serving at the time he files his

application become final because judgment is based on both the conviction and the

sentence.

E. Prior Precedent

The Court’s interpretation of AEDPA’s language, “a person in custody

pursuant to the judgment of a State court[,]” was necessary to its holding that

Burton’s second petition was successive. That interpretation effectively overrules

our decisions in Rainey and Ferreira where we defined the “judgment” differently.

Our incorrect interpretation directly led to our holding that their petitions were

time-barred. Therefore, the Supreme Court in Burton overruled our prior

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precedent in Ferreira and Rainey. We now hold that AEDPA’s statute of

limitations begins to run when the judgment pursuant to which the petitioner is in

custody, which is based on both the conviction and the sentence the petitioner is

serving, is final.

IV. CONCLUSION

We REVERSE the district court because we conclude that Ferreira timely

filed his habeas petition. In addition, we overrule our prior precedent in Ferreira

v. Sec’y for the Dep’t of Corr., 183 F. App’x 885 (11th Cir. 2006) and Rainey v.

Sec’y for the Dep’t of Corr., 443 F.3d 1323 (11th Cir. 2006), to the extent they are

inconsistent with the Supreme Court’s holding in Burton v. Stewart, __ U.S. __,

127 S. Ct. 793 (2007).