[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 99-4201
________________________
D. C. Docket No. 97-07216-CV-SH
FREDERICK WEBSTER,
Petitioner-Appellant,
versus
MICHAEL W. MOORE, Secretary of
Florida Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 4, 2000)
Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*, Senior
District Judge.
PER CURIAM:
*
Honorable Robert B. Propst, Senior U.S. District Judge for the
Northern District of Alabama, sitting by designation.
Frederick Webster appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 petition as time-barred under 28 U.S.C. § 2244(d)’s one-year limitations
period. We address, for the first time in this circuit, whether a petitioner whose
state petition has been dismissed as untimely may avail himself of statutory tolling
for “properly filed” state petitions under § 2244(d)(2). We conclude that he may
not.
I. Background
During a botched getaway from a burglary, Webster was involved in an
automobile crash, killing both the driver of his car and the innocent driver of
another car. In 1989, a Florida state court convicted Webster of first-degree felony
murder, second-degree felony murder, and burglary of an unoccupied dwelling,
crimes for which he is currently serving concurrent sentences. In 1989, a court of
appeals affirmed the first-degree murder and burglary convictions, but reversed the
conviction for second-degree murder.
Webster challenged the remaining convictions in three petitions under Fla.
R. Crim. P. 3.850. Of relevance to this appeal, the third of these was filed on July
19, 1995, and denied as procedurally barred; the denial was affirmed by a mandate
issued September 27, 1996. On May 3, 1997, Webster filed his last state court
petition, a request for habeas corpus relief under Florida’s newly amended Fla. R.
2
App. P. 9.140(j).1 The Florida appeals court denied this petition on July 8, 1997,
and Webster filed the instant federal petition on October 30, 1997. The district
court adopted the recommendation of the magistrate judge that Webster’s petition
be dismissed as time-barred.2
II. Discussion
It is undisputed that Webster did not file his § 2254 petition within the one-
year time period allowed by the Antiterrorism and Effective Death Penalty Act of
1996 § 101, 28 U.S.C. § 2244(d) (Supp. II 1997) (AEDPA).3 Webster’s contention
1
In 1996, the Florida Supreme Court adopted Fla. R. App. P.
9.140(j)(3)(B)-(C), which permitted filing ineffective-assistance-of-appellate-
counsel claims within two years following January 1, 1997. See Amendments to
the Fla. Rules of App. P., 696 So.2d 1103, 1107 (Fla. 1996).
2
A motions judge of this court granted Webster a Certificate of
Appealability (COA) that is consistent with the standard articulated in Henry v.
Dep’t of Corrections, 11th Cir., 1999, ___ F.3d ___ (No. 98-5089, December 15,
1999), for issuing COAs where the district court has dismissed the petition on
purely procedural grounds.
3
Under § 2244(d), state prisoners must file § 2244 petitions within one
year of the latest among four determining dates. See 28 U.S.C. § 2244(d)(1). Of
these, only the date specified in § 2244(d)(1)(A) applies directly to this case: “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Here, that date is April 14, 1989,
making the habeas filing deadline April 13, 1990. For situations in which a
defendant’s conviction became final before the April 24, 1996 effective date of
AEDPA, however, this court has ruled that the limitations period begins running
on the statute’s effective date, rather than on the final conviction date indicated by
applying § 2244(d)(1)(A). See Wilcox v. Florida Dep’t of Corrections, 158 F.3d
1209, 1211 n.4 (11th Cir. 1998) (citing Goodman v. United States, 151 F.3d 1335,
3
on appeal, however, is that his petition is saved by the tolling provision of §
2244(d)(2). It is not. The subsection does require tolling the limitations period
during the pendency of certain state-court proceedings:
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). Thus, if Webster could show that his motions for post-
conviction relief in the Florida court system were, either individually or in
combination, (1) “properly filed” within the meaning of the tolling provision and
(2) “pending” for a period of time sufficient to toll the limitations period past
October 30, 1997, his federal petition would be timely. Webster offers two
arguments attempting to do so.
To undergird the first of his arguments, Webster asserts that both his third
3.850 petition and his state habeas corpus petition were “properly filed” within the
meaning of § 2244(d)(2). In that event, the third 3.850 petition, filed before the
effective date of AEDPA, would toll the AEDPA limitations period until it was
finally decided on September 27, 1996, making the federal deadline September 26,
1997. The state habeas petition, in turn, would toll the statute an additional 65
1337 (11th Cir. 1998)). Applying this rule extends Webster’s deadline to April 23,
1997, but still does not save his October 30 petition.
4
days, extending his deadline from September 26 to December 1, 1997, making his
October 30 federal petition timely.
This argument fails because Webster’s third 3.850 petition, which the state
trial court dismissed as procedurally barred by the two-year statute of limitations
attached to Rule 3.850, see Fla. R. Crim. P. 3.850(b) (West Supp. 1999), was not
“properly filed” within the meaning of § 2244(d)(2). Federal courts have begun to
struggle with the meaning of the term “properly filed” as contemplated by the
statute, and have developed different interpretive approaches. One court concluded
that “properly filed” entails not only some notion of procedural propriety but also a
threshold inquiry into substantive merit, see Valentine v. Senkowski, 966 F. Supp.
239, 240-41 (S.D.N.Y. 1997), but that decision has been recently overruled, see
Bennett v. Artuz, 2d Cir., 1999, ___ F.3d ___ (No. 98-2452, Oct. 25, 1999) .
Others have ruled that a “properly filed” state-court petition must comply only with
the procedural requirements for filing, such as place, fee payment, and notice.
Some opinions have clarified that these procedural formalities include state filing
deadlines. See Hoggro v. Boone, 150 F.3d 1223, 1226 & n.4 (10th Cir. 1998);
Lovasz v. Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998). Conversely, other cases
hold that they do not include more complex state procedural doctrines relating to
timeliness or repetitiveness. See, e.g., Bennett, ___ F.3d at ___ (ruling a state
5
petition “properly filed” even though the state court found it procedurally barred
under a rule barring collateral claims that could have been raised on direct appeal);
Villegas v. Johnson, 184 F.3d 467, 467-73 (5th Cir. 1999) (holding a state petition,
dismissed as successive or as an abuse of the writ, “properly filed”); Lucas v.
Carter, 46 F. Supp. 2d 709, 711-12 (N.D. Ohio 1999) (concluding that a petition
dismissed by the state court on res judicata grounds was “properly filed”); Souch v.
Harkins, 21 F. Supp. 2d 1083, 1084-88 (D. Ariz. 1998) (observing that a seventh
state postconviction petition “complied with all filing requirements” and therefore
was “properly filed” despite the state court’s conclusion that the argument raised in
the petition had been waived). The legislative history of the provision offers no
help in evaluating these interpretations. See Galindo v. Johnson, 19 F. Supp. 2d
697, 705-06 (W.D. Tex. 1998) (noting the absence of any clarifying history on the
question).
We perceive two questions that must be resolved to apply the “properly
filed” requirement to this case. Neither has been reached in a published opinion
from this circuit. The first question is whether the state petition must meet state
filing deadlines in order to toll the AEDPA statute of limitation, and here we agree
with the holdings of the Third and Tenth Circuits in Lovasz and Hoggro that it
must. See Hoggro, 150 F.3d. at 1226; Lovasz, 134 F.3d at 148-49. The plain
6
language of § 2244(d)(2) comports with this interpretation. Moreover, we can
identify in the structure of AEDPA a guiding principle for this interpretation. That
structure–including AEDPA’s more robust codification of the exhaustion
requirement, see 28 U.S.C. § 2254(b), and the high degree of respect it affords
state adjudications of constitutional claims, see 28 U.S.C. §§ 2254(d)-(e)–evinces a
concern for federal-state comity closely analogous to that underlying the
procedural default principles applied in federal habeas law. See Coleman v.
Thompson, 501 U.S. 722, 729-32 (1991); Villegas, 184 F.3d at 470-71; Lovasz,
134 F.3d at 148. This concern further militates in favor of requiring compliance
with state filing deadlines in the context of § 2244(d)(2). See Lovasz, 134 F.3d at
148-49.
The second question is whether a federal court should defer to a state court’s
application of state filing deadlines. Again, we find the close analogy between
procedural default principles and § 2244(d)(2) compelling, and we see no
principled reason to apply a lesser measure of deference to the state court in the
context of § 2244(d)(2) than we apply in the context of procedural default
questions. We therefore conclude that the state court’s holding that Webster’s
7
Rule 3.850 petition was time-barred is due deference.4 Thus, Webster’s first
argument fails.
Webster’s alternative argument avoids the problems of his first by dropping
the requirement that his third–untimely–3.850 petition be “properly filed.”
Nevertheless, it too fails. Webster relies on a new rule of appellate procedure
made effective by the Florida Supreme Court on January 1, 1997. Under Fla. R.
App. P. 9.140(j)(3)(B) and (C), as then amended, Florida habeas petitioners finally
convicted before 1997 had until January 1, 1999 to file state habeas corpus
petitions alleging ineffective assistance of appellate counsel. Webster argues that
the creation of this new avenue of relief tolls the AEDPA limitations period until
after a Florida prisoner has taken advantage of it. For Webster, this would mean
that the AEDPA period was tolled from the January 1, 1997 effective date of the
new rule through the denial of his 9.140 petition on July 8, 1997, a period
sufficient to make his October 30 federal petition timely.
We cannot accept this argument as consistent with any reasonable
construction of § 2244(d)(2). Under § 2244(d)(2), even “properly filed” state-
4
There is no contention in this case that the state court’s rule is not
“firmly established and regularly followed.” James v. Kentucky, 466 U.S. 341, 348
(1984). Thus, we have no occasion to consider whether the state court would be
due deference if the rule applied was not “firmly established and regularly
followed.”
8
court petitions must be “pending” in order to toll the limitations period. A state-
court petition like Webster’s that is filed following the expiration of the limitations
period cannot toll that period because there is no period remaining to be tolled. In
effect, Webster argues not merely for the tolling of the period, but for its
reinitiation. Section 2244(d) makes no such provision where the reason for
reinitiation is creation of a new remedy under state law. Thus, Webster’s second
argument also fails.5
III. Conclusion
For the foregoing reasons, the dismissal of Webster’s petition is
AFFIRMED.
5
Because we find Webster’s second argument inadequate even on his
statement of Florida law, we need not address the State’s contention that Webster’s
state habeas petition may have been barred by the doctrine of laches. See McCray
v. State, 699 So.2d 1366 (Fla. 1997).
9