[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 29, 2006
No. 04-13282 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00394-CV-ORL-28KRS
JOHN O'NEAL RAINEY,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 29, 2006)
Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.
BLACK, Circuit Judge:
Appellant John O’Neal Rainey, Jr. appeals the district court’s dismissal of
his application for a 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 two
issues:
(1) Whether the district court properly found that a habeas corpus
petitioner who was resentenced and who only challenged the original
trial proceedings without raising any challenge based on resentencing
procedures is not entitled to the benefit of a new statute of limitations
period commencing from the date the resentencing judgment became
final.
(2) If appellant is not entitled to the benefit of a new statute of
limitations period commencing from the date his resentencing
judgment became final, whether equitable tolling should have been
applied when the statute of limitations expired while his post-
conviction motion, filed pursuant to Florida Rule of Criminal
Procedure 3.850, was pending and it was dismissed without prejudice
approximately seven months after filing for failure to comply with
Florida’s oath requirement.
We hold the Appellant’s habeas petition was untimely and, for the reasons set forth
more fully below, affirm the district court’s order.
2
I.
On April 10, 1996, Appellant was indicted for first degree murder and
attempted robbery with a firearm. A jury found him guilty of both counts on
July 14, 1998, and he was sentenced to life in prison for the murder conviction
with a concurrent term of 217 months’ imprisonment for the attempted robbery
conviction. Appellant’s convictions and sentence were affirmed on direct appeal
on September 28, 1999.
Appellant filed a motion for post-conviction relief pursuant to Florida Rule
of Criminal Procedure 3.850 on June 19, 2000. This motion, however, was
unsigned and thus not properly sworn as required by the Florida Rules of Criminal
Procedure. See Fla. R. Crim. P. 3.850(c). The state court dismissed Appellant’s
post-conviction motion without prejudice because the unsigned motion was not
under oath.
On February 13, 2001, Appellant filed a signed motion for post-conviction
relief, in which he asserted ten claims regarding ineffective assistance of trial
counsel and one claim arguing he was entitled to resentencing. The state court
denied Appellant’s ineffective assistance claims, but agreed, under Heggs v. State,
759 So. 2d 620 (Fla. 2000), Appellant was entitled to resentencing for his
attempted robbery conviction. On February 6, 2002, Appellant was resentenced,
3
and his concurrent sentence for attempted robbery was reduced from 217 to 142
months’ imprisonment. Appellant then appealed the state court’s denial of his
ineffective assistance claims. By opinion dated November 26, 2002, the Florida
Fifth District Court of Appeal affirmed, and the mandate issued on December 13,
2002.
On March 27, 2003, Appellant petitioned the district court for a writ of
habeas corpus under 28 U.S.C. § 2254. In his petition,1 Appellant challenged only
the original judgment of conviction; he did not raise any challenge to the
resentencing judgment. Appellant argued, under Walker v. Crosby, 341 F.3d 1240
(11th Cir. 2003), his application was timely because the one-year limitations period
under the AEDPA did not begin until December 13, 2002.2 The district court
disagreed, reasoning the petitioner in Walker was entitled to the benefit of a
limitations period beginning after resentencing because his petition contained a
1
In the context of an application for writ of habeas corpus under § 2254, we treat the
terms “application” and “petition” as interchangeable. Section 2254(b)(1) refers to “[a]n
application for a writ of habeas corpus.” 28 U.S.C. § 2254(b)(1). The Rules Governing Section
2254 Cases in the United States District Courts, however, refer to a “petition.” See Rule 2(a),
Rules Governing Section 2254 Cases in the United States District Courts. Unless otherwise
noted, all references are to the 2003 version of the Rules Governing Section 2254 Cases in the
United States District Courts, the version in effect at the time Appellant filed his petition.
2
Appellant assumes the date the mandate issued on the appellate court’s affirmance is the
date his resentencing judgment became final for purposes of the AEDPA. We express no
opinion as to whether Appellant is correct in this assumption and need not address the issue, as
we hold the limitations period on his petition ran from the date his original judgment of
conviction became final on December 27, 1999.
4
claim challenging his resentencing judgment. As Appellant’s application
challenged only his original judgment of conviction, the limitations period on his
petition began when that judgment–not the resentencing judgment–became final.
Measuring the one-year statute of limitations from December 27, 1999, the district
court found Appellant’s petition of March 27, 2003, untimely.3 The district court
also noted neither of Appellant’s motions for post-conviction relief tolled the one-
year limitations period. This appeal followed.
II.
The first issue upon which we granted a certificate of appealability is
whether a habeas corpus petitioner who was resentenced, but whose application
only challenges the original trial proceedings without raising any challenge based
on the resentencing judgment, is entitled to the benefit of a new statute of
limitations period commencing from the date the resentencing judgment became
final. Our case law and the plain language of the 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
3
The district court noted the state appellate court affirmed Appellant’s conviction on
September 28, 1999. Appellant then had 90 days, or through December 27, 1999, to petition the
United States Supreme Court for writ of certiorari. See Sup. Ct. R. 13. Thus, for purposes of the
one-year statute of limitations under § 2244(d)(1)(A), Appellant’s original judgment of
conviction became final on December 27, 1999. Absent any tolling, then, Appellant had one
year, or through December 27, 2000, in which to file an application for writ of habeas corpus.
See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002).
5
the AEDPA runs from the date the original judgment of conviction became final
and not the date the resentencing judgment became final.
We review de novo the district court’s determination that a petition for
federal habeas corpus relief was time-barred under the AEDPA. Moore v. Crosby,
321 F.3d 1377, 1379 (11th Cir. 2003).
The AEDPA imposes a one-year statute of limitations for writs of habeas
corpus. 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).
In a series of three decisions, Hepburn v. Moore, 215 F.3d 1208 (11th Cir.
2000), Maharaj v. Sec’y for the Dep’t of Corr., 304 F.3d 1345 (11th Cir. 2002),
and Walker v. Crosby, we applied § 2244 and held, under the circumstances, the
one-year limitations period began after each petitioner’s resentencing judgment
became final. Appellant argues his case is analogous to those decisions and,
therefore, his application was timely because the limitations period on his petition
began on December 13, 2002, the date he asserts his resentencing judgment
became final.
We find Appellant’s case distinguishable from Hepburn, Maharaj, and
Walker because, unlike in those cases, Appellant’s petition contested only his
original judgment of conviction and in no way challenged his resentencing
judgment.4 A challenge to resentencing is essential to a petitioner’s obtaining the
benefit of a later limitations period under the AEDPA. A petitioner is permitted to
challenge multiple judgments in a single petition under Rule 2(d) of the Rules
4
Despite Appellant’s argument to the contrary, the petitions in Hepburn, Maharaj, and
Walker each contained a claim challenging the resentencing judgment. See Hepburn, 215 F.3d
at 1208; Maharaj, 304 F.3d at 1346–47; Walker, 341 F.3d at 1242.
7
Governing Section 2254 Cases in the United States District Courts.5 Thus, a
petitioner may bring a single application challenging his conviction and
resentencing, as long as those judgments issued from the same state court. While a
petitioner may challenge several judgments in a single petition, the AEDPA, as we
noted in Walker, provides a single limitations period for the application as a whole,
not for each individual claim. See Walker, 341 F.3d at 1245 (opining “[t]he 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”).
Section 2244(d)(1) thus establishes one limitations period for the petition as a
whole running from the latest of several possible triggering dates, including “the
date on which the judgment became final.” 28 U.S.C. § 2244(d)(1)(A). The latest
5
Rule 2(d) of the Rules Governing Section 2254 Cases in the United States District
Courts 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
appropriate 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.
Rule 2(d), Rules Governing Section 2254 Cases in the United States District Courts (emphasis
added). By implication, the 2005 version of the Rules contains a similar provision in Rule 2(e),
which states:
Separate Petitions for Judgments of Separate Courts. A petitioner who seeks
relief from judgments of more than one state court must file a separate petition
covering the judgment or judgments of each court.
The amendment to the rule is purely semantic, as the change was “intended to be stylistic and no
substantive change [was] intended, except [changes not affecting this provision].” Rules
Governing Section 2254 Cases in the United States District Courts, Rule 2, Rule 2 advisory
committee’s notes on 2004 Amendments.
8
triggering date in petitions challenging both an original judgment of conviction and
a resentencing judgment is the date the resentencing judgment became final, as that
is the latest date a judgment challenged in the petition became final. See Walker,
341 F.3d at 1246. Thus, when a petitioner brings a single petition challenging his
original judgment of conviction and his resentencing judgment, the statute of
limitations under § 2244(d)(1)(A) runs from the date the resentencing judgment
became final.6
As each of the petitioners in Hepburn, Maharaj, and Walker challenged their
resentencing judgments, we measured the limitations period for those applications
from the latest date a judgment challenged in the petition–the resentencing
judgment–became final. In those cases, the one-year statute of limitations
commenced after the resentencing judgment became final precisely because the
petitions in those cases included a claim disputing the resentencing judgment. The
resentencing judgment was the last challenged judgment to become final and,
therefore, the limitations period ran from that date.
6
Our holding is consistent with the principle, well-recognized as a matter of both federal
and state jurisprudence, that resentencing does not affect the finality of the original judgment of
conviction. See, e.g., United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001) (holding
“resentencing does not affect the date on which the judgment . . . of conviction became final”).
The same rule obtains as a matter of Florida law. See, e.g., Smith v. State, 886 So. 2d 336, 338
(Fla. 5th DCA 2004) (concluding “the resentencing did not affect the finality of [the appellant’s]
judgment [of conviction]”). While the interpretation of § 2244 is a matter of federal law, we
remain sensitive to state law where appropriate. See Roberts v. Cockrell, 319 F.3d 690, 693 (5th
Cir. 2003).
9
Appellant, unlike the petitioners in Hepburn, Maharaj, and Walker, does not
challenge the resentencing judgment; rather, his petition disputes only his original
judgment of conviction. As the limitations period for an application runs from the
latest of the dates on which a judgment challenged in the application became final,
the limitations period for Appellant’s petition began to run, absent any tolling,
when his original judgment of conviction became final on December 27, 1999.
Appellant’s petition of March 27, 2003, is, therefore, untimely under the one-year
limitations period of the AEDPA.
This result is consistent with the plain language of the AEDPA. In this case,
§ 2244(d)(1)(A) statutorily prescribes the limitations period to run from the latest
of “the date[s] on which the judgment became final.” 28 U.S.C.
§ 2244(d)(1)(A). This language compels a conclusion that the latest possible
triggering date for a petition challenging only the original judgment of conviction
is the date on which that judgment became final. Thus, under a plain reading of the
AEDPA, the limitations period on Appellant’s petition began when the original
judgment of conviction became final on December 27, 1999.
Appellant asserts our conclusion has the undesirable consequence of creating
a classic Catch-22 for petitioners like himself. To get the benefit of a later
limitations period under the AEDPA, he argues, our decision places him in the
10
position of having to either raise claims challenging resentencing before they arise
or wait until resentencing becomes final to file his petition. If he challenges
resentencing before that judgment becomes final, Appellant contends, Maharaj
makes it clear his petition will be unripe and unreviewable. Appellant argues he is
then forced to jeopardize his claims challenging his original judgment of
conviction by waiting until resentencing becomes final to file his application. If no
claims arise during resentencing, however, his petition challenging the original
judgment of conviction is deemed time-barred by our decision. Thus, Appellant
argues petitioners like himself have no way of preserving claims challenging their
judgments of conviction because their petitions are always unripe or untimely.
We are not convinced our decision creates such a quandary. Maharaj
simply demonstrates when a petitioner files an application challenging, in part, a
judgment which is not final, the petition is not ripe for review until that judgment
becomes final.7 Maharaj and our decision are consistent, however, in noting such
premature petitions will be timely if filed after the disputed judgment becomes
final, as the limitations period commences on the latest date a judgment challenged
in the petition becomes final. Similarly, petitioners like Appellant are not forced to
7
It is unclear whether, under Maharaj, Appellant’s petition would have actually been
unripe had he filed it prior to resentencing, as his application challenged only a final
judgment–his original judgment of conviction.
11
jeopardize their claims challenging the original judgment of conviction by waiting
until the resentencing judgment becomes final to file their applications. During the
initial one-year limitations period, a petitioner need only properly file a motion for
post-conviction relief in the state court or file a federal habeas petition challenging
the original judgment of conviction to preserve such claims.8 Thus, our decision
does not place petitioners like Appellant between the proverbial rock and a hard
place. If a petition is dismissed as premature under Maharaj, the petitioner is
entitled to timely file his application once all judgments challenged therein have
become final, as the limitations period on that application commences from the
latest date any judgment challenged in the application becomes final. Petitioners
may also preserve challenges to their original judgments of conviction if, within
the initial one-year statute of limitations, they properly file either a motion for
post-conviction relief, thereby tolling the limitations period, or a federal habeas
8
Indeed, while we have no occasion to decide the issue here, we noted in Hepburn that
other circuits have uniformly held a petitioner is permitted to file one petition challenging his
conviction and sentencing, and, upon being granted post-conviction relief, bring another petition
challenging resentencing without the subsequent petition being dismissed as second or
successive. See Hepburn, 215 F.3d at 1209; see also Walker v. Roth, 133 F.3d 454, 455 n.1 (7th
Cir. 1997) (noting “[o]f 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 (2d Cir. 1997)
(concluding “[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”).
12
petition encompassing such claims.
For the foregoing reasons, the district court did not err in finding the
limitations period on Appellant’s petition began when his original judgment of
conviction became final on December 27, 1999.
III.
The second issue upon which we granted a certificate of appealability is
whether equitable tolling should have been applied when the statute of limitations
expired while Appellant’s post-conviction motion, filed pursuant to Florida Rule of
Criminal Procedure 3.850, was pending and dismissed without prejudice
approximately seven months after filing for failure to comply with Florida’s oath
requirement.9 We find the district court did not err in holding Appellant’s
defective motion for post-conviction relief failed to equitably toll the limitations
period under the AEDPA.
We review de novo the district court’s decision to deny equitable tolling.
9
It is clear, on these facts, Appellant was not entitled to statutory tolling. Section
2244(d)(2) provides “[t]he time during which a properly filed application for State post-
conviction . . . review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation . . . .” 28 U.S.C. § 2244(d)(2) (emphasis added).
Appellant concedes his motion for post-conviction relief under Florida Rule of Criminal
Procedure 3.850 was unsigned and, therefore, not properly filed. Thus, this motion did not toll
the limitations period on his petition as a statutory matter. See Hurley v. Moore, 233 F.3d 1295,
1297–98 (11th Cir. 2000) (holding when a motion for post-conviction relief is not properly filed,
§ 2244’s statute of limitations is not statutorily tolled).
13
Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002).
The AEDPA’s one-year limitations period can be equitably tolled where a
petitioner “untimely files because of extraordinary circumstances that are both
beyond his control and unavoidable even with diligence.” Steed v. Head, 219 F.3d
1298, 1300 (11th Cir. 2000) (quotation omitted). Equitable tolling is, however,
“limited to rare and exceptional circumstances, such as when the State’s conduct
prevents the petitioner from timely filing.” Lawrence v. Florida, 421 F.3d 1221,
1226 (11th Cir. 2005). The petitioner bears the burden of showing equitable
tolling is warranted. Drew, 297 F.3d at 1286. Here, Appellant shoulders the
burden of showing his March 27, 2003, petition was untimely because of
extraordinary circumstances that were both beyond his control and unavoidable
even with his own exercise of diligence.
Appellant cannot carry his burden of establishing the propriety of equitable
tolling in this case. Appellant’s first motion for post-conviction relief was
defective because he failed to sign it. He has not, moreover, offered any evidence
suggesting he attempted to ascertain the status of that motion during the seven
months it sat on the state court’s docket before being dismissed. In short,
Appellant failed to act diligently, and the untimeliness of his petition was due to
circumstances within his control. As a result, the district court did not err in
14
finding Appellant’s defective motion for post-conviction relief did not equitably
toll the limitations period on his petition. See Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96, 111 S. Ct. 453, 458 (1990) (holding “the principles of equitable
tolling . . . do not extend to what is at best a garden variety claim of excusable
neglect”).
IV.
Because Appellant’s petition challenged only his original judgment of
conviction, the statute of limitations on his application ran from the date that
judgment, not his resentencing judgment, became final. Appellant’s defective
motion for post-conviction relief, moreover, neither statutorily nor equitably tolled
the limitations period on his petition. Accordingly, the district court did not err in
finding Appellant’s petition was untimely under the AEDPA.
AFFIRMED.
15