[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-12491 AUGUST 13, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00053-CV-ORL-31
EXUM WALKER,
Petitioner-Appellant,
versus
JAMES CROSBY,
Secretary, Department of Corrections, and
CHARLIE CRIST,
Attorney General of the State of Florida,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 13, 2003)
Before BIRCH and BLACK, Circuit Judges, and PROPST*, District Judge.
BLACK, Circuit Judge:
*
Honorable Robert B. Propst, United States District Judge for the Northern District of
Alabama, sitting by designation.
Appellant Exum Walker appeals the district court’s dismissal of his
application for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, as
time-barred under the one-year statute of limitations contained in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). We
granted a certificate of appealability as to the following issues: (1) whether
individual claims within a single habeas petition may be reviewed separately for
timeliness in light of Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361 (2000); and
(2) whether, in this case, the district court properly dismissed Walker’s 28 U.S.C.
§ 2254 habeas petition as untimely. 1 The plain language of § 2244(d)(1)
convinces us the answer to both questions is no.
I.
In May 1990, Appellant was convicted in state court of three counts of
committing a lewd act in the presence of a child and one count of committing a
lewd act upon a child.2 In July 1990, Appellant was sentenced on all of these
counts and received a total of 25 years’ incarceration followed by 30 years’
1
In the context of an application for writ of habeas corpus under § 2254, we treat the
terms “application” and “petition” as interchangeable. See Rule 2(a) of the Rules Governing
Section 2254 Cases (“. . . the application shall be in the form of a petition for a writ of habeas
corpus . . . .”).
2
In a separate indictment, Appellant was charged with 28 counts of unlawful possession
of materials depicting sexual performance by a child. Appellant plead guilty to two of the
counts, and the other 26 counts were dropped.
2
probation. Appellant’s conviction and sentence were affirmed on direct appeal,
and the mandate issued on August 7, 1991.
In the course of the next six years, Appellant filed several collateral attacks
in state court, all of which were denied. In October 1997, however, Appellant
filed a motion to correct his sentence under Florida Rule of Criminal Procedure
3.800, and the state court granted this motion with respect to Appellant’s
probationary sentence. On February 4, 1998, Appellant was resentenced to 15
years’ probation as to one of the counts for which he was convicted and 15 years’
probation as to another count, to run consecutively. Appellant appealed the
resentencing judgment.
On February 24, 1998, while the appeal to his resentencing judgment was
still pending, Appellant filed in federal district court a § 2254 application for writ
of habeas corpus (1998 application) challenging aspects of his original conviction.
On May 24, 1998, the district court dismissed Appellant’s 1998 application
without prejudice for failure to exhaust his remedies in state court.
Meanwhile, the state courts affirmed Appellant’s resentencing and the
mandate issued on June 5, 1998. Appellant then filed various applications for
3
state post-conviction or other collateral review, all of which were eventually
denied.3
On January 16, 2001, Appellant filed another § 2254 application for writ of
habeas corpus (2001 application) in federal district court. The 2001 application
contained the same four claims raised in his 1998 application, as well as a fifth
claim in which Appellant alleged he was resentenced to a harsher sentence in
violation of his due process rights. Appellees argued the 2001 application was
untimely under § 2244(d)(1). In response, Appellant argued the filing date of his
2001 application should relate back to his 1998 application. The district court,
however, reasoned that since Appellant’s conviction became final prior to
April 24, 1996, he had until April 23, 1997, absent any tolling, to file a federal
habeas petition regarding such conviction. See Wilcox v. Florida Dep’t. of Corr.,
158 F.3d 1209, 1211 (11th Cir. 1998) (holding petitioners whose convictions
become final before the enactment of AEDPA must be provided a reasonable time
to file their § 2254 petitions, and one year from the effective date is a reasonable
period). Measuring the one-year statute of limitations from April 24, 1996, the
3
Appellant filed a petition to invoke all writs jurisdiction with the Florida Supreme Court
on June 3, 1998, which was denied on November 9, 1998. Appellant filed a motion for a state
writ of habeas corpus on December 1, 1998, which was finally denied on February 3, 1999.
Appellant filed a Rule 3.800(a) motion for post-conviction relief on April 6, 1999, which was
finally denied on September 13, 1999. Appellant filed a Rule 3.850 and 3.800(a) motion for
post-conviction relief on September 28, 1999, which was finally denied on January 8, 2001.
4
district court found Appellant’s 2001 application to be untimely. The district court
also noted that Appellant’s 1998 application, which had previously been dismissed
without prejudice for failure to exhaust state remedies, was also filed after the one-
year time limit had expired.
Appellant filed a motion for reconsideration, arguing the statute of
limitations should be measured from the date of his resentencing, and not from the
effective date of the AEDPA, because under § 2244(d)(1)(D) the date of his
resentencing was the earliest date on which the factual predicate of his fifth claim
could have been discovered. Appellant argued his 2001 application, as a whole,
was timely under the one-year statute of limitations in § 2244(d)(1), measured
from the date of his resentencing and tolled during the pendency of his properly
filed applications for state post-conviction relief. In other words, he argued that,
as long as one claim in his application was timely, the entire application was
timely, even though other individual claims within the application appeared to be
untimely when viewed by themselves. The district court denied Appellant’s
motion to reconsider. This appeal followed.
II.
The first issue upon which we granted a certificate of appealability is
whether individual claims within a single habeas petition may be reviewed
5
separately for timeliness, in light of Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361
(2000). The answer to this question depends upon the interpretation of the statute
of limitations contained in § 2244(d)(1). “We begin our construction of [a statute]
where courts should always begin the process of legislative interpretation, and
where they often should end it as well, which is with the words of the statutory
provision.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000).
Section 2244(d) provides:
(1) 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 shall run from the latest of –
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
6
(2) 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) (emphasis added).
The statute directs the court to look at whether the “application” is timely,
not whether the individual “claims” within the application are timely. The statute
provides a single statute of limitations, with a single filing date, to be applied to
the application as a whole. The statute also provides that this single deadline shall
run from the “latest of” several possible triggering dates contained in
subparagraphs (A) through (D).
Although the Supreme Court has not addressed this particular issue, the
Court’s analysis in Artuz guides our determination. Artuz dealt with whether an
application for state post-conviction relief that contains procedurally barred claims
is nevertheless “properly filed” within the meaning of § 2244(d)(2) so as to toll the
limitation period. In holding that it was, the Court emphasized the distinction
between an “application” and “claims” within an application:
By construing “properly filed application” to mean “application
raising claims that are not mandatorily procedurally barred,”
petitioner elides the difference between an “application” and a
“claim.” Only individual claims, and not the application containing
those claims, can be procedurally defaulted under state law . . . .
Ignoring this distinction would require judges to engage in verbal
7
gymnastics when an application contains some claims that are
procedurally barred and some that are not. Presumably a court would
have to say that the application is “properly filed” as to the nonbarred
claims, and not “properly filed” as to the rest. The statute, however,
refers only to “properly filed” applications and does not contain the
peculiar suggestion that a single application can be both “properly
filed” and not “properly filed.” Ordinary English would refer to
certain claims as having been properly presented or raised,
irrespective of whether the application containing those claims was
properly filed.
Artuz, 531 U.S. at 9-10, 121 S. Ct. at 364-65.
Our interpretation of § 2244(d)(1) is similarly guided by the distinction
between an application and claims within an application, and by the presumption
that Congress understood the difference when drafting AEDPA.
Section 2244(d)(1) refers only to a one-year limitation period that applies to “an
application.” (emphasis added). The statute does not suggest that a single
application can be timely as to some claims and untimely as to other claims. To
hold that, under § 2244(d)(1), a court can dismiss some claims as untimely and
retain jurisdiction over other timely claims would elide the distinction between
applications and claims that exists throughout § 2244. Compare § 2244(b)(1),
(b)(2) & (b)(4) (requiring dismissal of certain claims presented in a second or
successive § 2254 application) with §§ 2244(d)(1) (applying a one-year period of
limitation to an application).
8
One of the leading treatises on habeas corpus law recognizes that the
limitation period applies to applications and not to individual claims:
Because the statutory scheme conditions the commencement of
the limitations period in part on the date on which the petitioner or
movant first gained access to the legal or factual bases for a particular
“claim”–and it also ties its tolling provision for state postconviction
proceedings to proceedings “with respect to the pertinent . . .
claim”–a petition or motion with multiple claims may have different
triggering dates for its various claims. If so, two questions arise:
Does the deadline for the filing of a habeas corpus petition or section
2255 motion vary from claim to claim, or is there a single deadline
that applies to the entire petition or motion? And, if the latter, what is
the single deadline–the earliest or the latest of the various claims’
limitations period, or some other date? Although AEDPA does not
clearly resolve this issue, its language strongly suggests that the
applicant has until the end of the latest of the claims’ limitation
periods to file the application. Thus, AEDPA provides that “[a] 1-
year period of limitation shall apply to an application for a writ of
habeas corpus” and “shall run from the latest of” the various possible
time periods set forth in the statute. This language strongly suggests
Congress’ intention both that a single filing date apply to the entire
“application,” and that the deadline be determined by the “latest” of
the limitation periods for the claims raised in the petition. . . . Given
Congress’ objective of streamlining the habeas corpus process, it
seems highly unlikely that Congress would have opted for a claim-by-
claim approach that could require piecemeal habeas corpus litigation
on a scale never before imagined.
1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
Procedure (4th ed. 2001) § 5.2b at 266-67 & n.70 (footnotes omitted and footnote
text appended to end of quote).
9
The Third Circuit, one of the few courts to have addressed this issue, agrees
that a single limitation period applies to the entire application. See Sweger v.
Chesney, 294 F.3d 506, 514 (3rd Cir. 2002). In Sweger, the Third Circuit
criticized the district court for holding that the limitation period in § 2244(d)(1)
“applies to each and every claim on an independent basis.” 294 F.3d at 515-16.
As the Third Circuit explained, this is “flatly incorrect.” Id. at 516.
[T]he District Court erred in holding under the AEDPA that separate
one-year limitations periods apply to each claim raised in a habeas
petition, and that each limitations period runs from the exhaustion of
state remedies for each claim. . . .
[T]he AEDPA expressly establishes that the limitations period
applies “to an application for a writ of habeas corpus” and runs from
“the date on which the judgment became final . . .” 28 U.S.C.
§ 2244(d)(1) (emphasis added) . . . . This provision makes no
mention of a limitations period for individual claims in a habeas
petition. It clearly applies to the entire habeas petition and runs from
the date on which the judgment that the habeas petition attacks
became final. The District Court's reading is contrary to the plain
language of § 2244(d)(1).
Id. at 515.
We agree. The statute of limitations in § 2244(d)(1) applies to the
application as a whole; individual claims within an application cannot be reviewed
separately for timeliness. We reach this conclusion in light of the text and
structure of AEDPA. Section 2244(d)(1) states the limitation period shall apply to
10
“an application for a writ of habeas corpus.” Contrast the language in § 2244(d)
creating a statute of limitations with the language in § 2244(b) requiring dismissal
of certain claims presented in a second or successive application. The former
speaks only to the timeliness of the “application,” while the latter allows for the
dismissal of “claims” within a second or successive application if they were or
could have been presented in a prior application.4 Our holding is consistent with
4
Appellant’s 2001 application was not a second or successive application under
§ 2244(b) because Appellant’s 1998 application was dismissed without prejudice for failure to
exhaust state remedies. See Slack v. McDaniel, 529 U.S. 473, 486-87, 120 S. Ct. 1595, 1605
(2000) (holding that dismissal of petitioner’s § 2254 application for failure to exhaust state
remedies does not render a subsequent application second or successive). Therefore, we have no
occasion to decide whether and to what extent § 2244(b) allows a petitioner, who filed one
habeas application and is then resentenced, to bring another habeas application that, in part,
challenges his resentencing. Other courts have suggested that in such a case the district court is
allowed to separate the new claims challenging the resentencing from the old claims that were or
should have been presented in the prior application. See In re Taylor, 171 F.3d 185, 188 n.* (4th
Cir. 1999) (stating the district court is “in the best position to separate the ‘new’ issues from any
which existed at the time the applicant filed an earlier § 2255 motion and to limit his
consideration of the motion accordingly”); Walker v. Roth, 133 F.3d 454, 455 n.1 (7th Cir. 1997)
(“Of course, had Walker sought to challenge aspects of his conviction [as opposed to aspects of
his resentencing] the district court would have been correct in dismissing his petition as
successive.”); Galtieri v. United States, 128 F.3d 33, 37-38 (2nd Cir. 1997) (“[W]henever a first
2255 petition succeeds in having a sentence amended, a subsequent 2255 petition will be
regarded as a ‘first’ petition only to the extent that it seeks to vacate the new, amended
component of the sentence, and will be regarded as a ‘second’ petition to the extent that it
challenges the underlying conviction or seeks to vacate any component of the original sentence
that was not amended.”). We mention these cases only to note that our holding that courts cannot
separately consider the timeliness of claims under § 2244(d)(1) is not inconsistent with these
courts of appeals decisions suggesting that courts can separately consider whether claims
presented in a subsequent application should be dismissed under § 2244(b) or § 2255. As we
already noted, the text of the statute authorizing dismissal of claims in a second or successive
application is claim specific, whereas the statute of limitations in § 2244(d)(1) applies only to an
“application.” The difference in the text of the statute is enough to distinguish those cases from
this one.
11
the Supreme Court’s direction in Artuz to distinguish between the term
“application” and “claim” when interpreting § 2244, and is also consistent with
other courts and commentators who have addressed the issue.5
III.
The next question we certified for appeal is whether, in this case, the district
court properly dismissed Appellant’s petition. The district court reasoned that,
since Appellant’s conviction became final before the effective date of AEDPA, the
statute of limitations should be measured from the effective date of AEDPA, April
24, 1996. See Wilcox, 158 F.3d at 1211. Using this date as the starting point, the
district court found the application was not timely. Appellant argues the statute of
limitations should be measured from the date of his resentencing, because under
5
Our holding is also consistent with Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198
(1982). In Rose, the Supreme Court addressed what to do when a petition contains both
unexhausted and exhausted claims under § 2254(b). Section 2254(b)(1)(A) states that “[a]n
application for writ of habeas corpus . . . shall not be granted unless . . . the applicant has
exhausted the remedies available in the courts of the State . . . .” 28 U.S.C. § 2254(b)(1)(A).
The Rose Court decided on a rule of total exhaustion; district courts should dismiss “mixed”
petitions that contain both exhausted and unexhausted claims. Rose, 455 U.S. at 522, 102 S. Ct.
at 1205. Although the Supreme Court did not focus on the statutory text in its opinion, the text
of the § 2254(b)(1)(A) refers to the granting of “an application,” and does not suggest that courts
can separate claims within an application. The Court, moreover, did stress the importance of
consolidating habeas review in a single proceeding. Our holding that courts cannot separately
consider claims within an application for timeliness under § 2244(d)(1) is consistent with the
Supreme Court's interpretation of § 2254(b)(1)(A) as well as the policy considerations behind
Rose.
12
§ 2244(d)(1)(D) the factual predicate of his fifth claim could not have been
discovered before then.
Appellant, however, need not resort to subparagraph (D). His application is
timely because under subparagraph (A) we measure the statute of limitations from
the date on which the resentencing judgment became final. We have previously
held that under § 2244(d)(1)(A) the statute of limitations for a habeas application
challenging a resentencing court’s judgment begins to run on the date the
resentencing judgment became final and not the date the original judgment became
final. Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000); see also Maharaj
v. Sec’y for the Dep’t of Corr., 304 F.3d 1345, 1346 (11th Cir. 2002).
The Hepburn court, however, did not address how to measure the statute of
limitations for a habeas application, like Appellant’s 2001 application, that
contains claims challenging the resentencing judgment as well as claims
challenging the original judgment of conviction. Appellant’s original conviction
became final by the conclusion of direct review on August 7, 1991. Appellant’s
resentencing judgment, however, did not become final by the conclusion of direct
review until June 5, 1998. Appellant was allowed to challenge both of these
judgments in a single habeas petition under Rule 2(d) of the Rules Governing
13
Section 2254 Cases.6 Since the limitations period in § 2244(d)(1) must run from
the “latest” of the several possible triggering dates provided in its subparagraphs,
the limitations period for Appellant’s application runs from June 5, 1998, the date
upon which Appellant’s resentencing judgment became final by the conclusion of
direct review, under subparagraph (A). Furthermore, under § 2244(d)(2), the
limitations period was tolled during the pendency of Appellant’s properly filed
applications for state post-conviction or other collateral review. See n.3, supra.
Using these dates, we conclude Appellant’s 2001 application was filed within the
one-year limitation period provided in § 2244(d)(1).
IV.
We recognize that § 2244(d)(1) as written allows for the resurrection of
what seem to be time-barred claims tagging along on the coattails of a timely
claim. Nevertheless, Congress wrote the statute, and we cannot see how it can be
read any other way without departing from the plain meaning of the words of the
statute. The Supreme Court has advised that “[w]hatever merits . . . policy
6
Rule 2(d) of the Rules Governing Section 2254 Cases states: “A petition shall be limited
to the assertion of a claim for relief against the judgment or judgments of a single state court
(sitting in a county or other political subdivision). If a petitioner desires to attack the validity of
the judgments of two or more state courts under which he is in custody or may be subject to
future custody, as the case may be, he shall do so by separate petitions.” (emphasis added).
14
arguments may have, it is not the province of this Court to rewrite the statute to
accommodate them.” Artuz, 531 U.S. at 10, 121 S. Ct. at 365.
REVERSED and REMANDED.
BIRCH, Circuit Judge, concurs dubitante.
15