PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
-------------- FILED
No. 98-4218 U.S. COURT OF APPEALS
-------------- ELEVENTH CIRCUIT
MAR 15 2001
D.C. Docket No. 97-01978-CV-ASG
THOMAS K. KAHN
CLERK
JEFFREY WEEKLY,
Petitioner-Appellant,
versus
MICHAEL W. MOORE,
DEPARTMENT OF CORRECTIONS, et al.,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 15, 2001)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BIRCH and BARKETT, Circuit Judges, and MILLS*, District Judge.
RICHARD MILLS, District Judge:
*
Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting
by designation.
In our previous Opinion in this case, we noted that “[t]he resolution of this
appeal . . . turns on whether a successive petition such as Weekley’s [sic] is
nonetheless a ‘properly filed application’ under 28 U.S.C. § 2244(d)(2).” Weekly
v. Moore, 204 F.3d 1083, 1085 (11th Cir. 2000). The majority of this Court was
persuaded by the reasoning of the United States Courts of Appeals for the Seventh
and Ninth Circuits1 and concluded that successive state court filings do not
constitute properly filed applications for purposes of tolling 28 U.S.C. §
2244(d)(2)’s statute of limitations period.2 Weekly, 204 F.3d at 1086.
Accordingly, we affirmed the district court’s dismissal of Weekly’s habeas corpus
petition as being untimely filed. Id.
However, on January 8, 2001, the United State Supreme Court reversed this
Court pursuant to that Court’s holding in Artuz v. Bennett, 121 S. Ct. 361 (2000).
In Bennett, the Supreme Court decided the circuit split and held that
an application is “properly filed” when its delivery and acceptance are
in compliance with the applicable laws and rules governing filings. . .
. “[T]he question whether an application has been “properly filed” is
1
See Tinker v. Hanks, 172 F.3d 990 (7th Cir. 1999) and Dictado v. Ducharme, 189 F.3d
889 (9th Cir. 1999).
2
Judge Barkett explained in her dissent that she was more persuaded by the reasoning of
the opinions from the United States Courts of Appeals for the Second, Fifth, and Third Circuits
(see Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999); Villegas v. Johnson, 184 F.3d 467 (5th Cir.
1999); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998)), noting that “[t]o import consideration of
the merits of the petition into this determination seems to me to be in direct conflict with the
plain meaning of the phrase ‘properly filed’ as it is used in the statute.” Weekly, 204 F.3d at 186.
2
quite separate from the question whether the claims contained in the
application are meritorious and free of procedural bar.
Id. at 364.
In light of Bennett, we must reverse the district court’s decision and remand
for further proceedings. As we previously noted, “since Weekley [sic] filed his
federal petition on June 25, 1997, if either the second or third Rule 3.850 motions
w[ere] properly filed, his federal habeas petition would be timely.” Weekly, 204
F.3d at 1085. Bennett teaches that Weekly’s habeas corpus petition was timely
filed because his second and third Rule 3.850 motions were properly filed, thereby
tolling 28 U.S.C. § 2244(d)(2)’s statute of limitations period.
Accordingly, we REVERSE the district court’s Order holding that Weekly’s
habeas corpus petition was untimely filed and REMAND with directions to the
district court that it allow Weekly to file and proceed on his habeas corpus petition.
3