[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15948 AUG 28, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-01518-CV-ORL-22DAB
THOMAS LYNN CRAMER,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 28, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Thomas Lynn Cramer, a Florida prisoner proceeding pro se, appeals the
district court’s dismissal of his § 2254 petition as time-barred. Cramer filed his
petition after the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and,
therefore, the provisions of that act govern this appeal. At issue in this appeal is
whether the time during which Cramer could have sought an appeal of the denial of
his Fla. R. Crim. P. 3.800 motion tolled the limitations period. We conclude that
the time tolled even if Cramer did not seek appellate review, as the claim remained
pending under 28 U.S.C. § 2244(d) until the time to file an appeal expired.
Accordingly, we reverse and remand with instructions to reinstate the petition.
I. Background
Cramer was convicted of multiple counts of robbery on August 31, 1999.
His conviction was affirmed on March 14, 2000. On July 16, 2000,1 Cramer filed a
motion to correct sentence under Fla. R. Crim. P. (“Rule”) 3.800(a). The motion
was denied on November 30, 2000. Cramer did not file an appeal. Cramer then
filed a motion for post-conviction relief under Rule 3.850 on April 12, 2001. The
motion was granted in part and denied in part on May 14, 2003. Cramer appealed
the denial, and the state appeals court affirmed the decision on January 27, 2004.
1
For purposes of calculating time, we apply the mailbox rule and refer to the dates Cramer
signed his motions or petitions and submitted them to prison authorities. Adams v. United States,
173 F.3d 1339, 1341 (11th Cir. 1999).
2
Cramer filed a petition for discretionary review with the state supreme court on
February 25, 2004, which was dismissed for lack of jurisdiction on March 16,
2004. On October 8, 2005, Cramer filed the instant § 2254 petition.
The state moved to dismiss on the ground that the petition was untimely
under the AEDPA’s one-year limitations period because a total of 373 days had
elapsed between the time in which the limitations period began to run and the time
Cramer filed the instant petition.2
Cramer replied that the state failed to toll the time during which he could
have appealed the denial of his Rule 3.800 motion, even though he had not filed an
appeal, making the time elapsed a total of 343 days.3
The district court dismissed the petition as time-barred. Calculating the
days, the court found that 34 days elapsed between the time the conviction became
final on June 12, 2000, and when Cramer filed his Rule 3.800 motion. The time
2
The state’s calculations are as follows: Cramer’s convictions became final on March 14,
2000. See Close v. United States, 336 F.3d 770, 773-74 (11th Cir. 2002) (explaining that the 90 day
period runs from the date of the entry of judgment and not from the date the mandate issued). The
time began to run 90 days later on June 12, 2000, after the expiration of the time in which Cramer
could have sought review from the U.S. Supreme Court. See 28 U.S.C. § 2244(d)(1); Wade v.
Battle, 379 F.3d 1254, 1256 (11th Cir. 2004)). From June 12, 2000 until Cramer filed the Rule
3.800 motion, 34 days expired. The time then tolled until the motion was denied on November 30.
Cramer then used 133 days until he filed his Rule 3.850 motion, and the time tolled until that motion
was denied. Another 206 days elapsed between the time the state supreme court denied
discretionary review of the denial of the Rule 3.850 motion and the time Cramer filed his federal
habeas petition.
3
Cramer had thirty days in which to file an appeal from the denial of his motion for post-
conviction relief under Rule 3.800(a). Fla. Stat. Ann. § 924.066(2); Fla. R. App. P. 9.140(3).
3
tolled until the motion was denied on November 30, 2000, and then 133 days
elapsed until Cramer filed his Rule 3.850 motion. The time then tolled until the
motion was denied on March 16, 2004. Thus, a total of 167 days had expired, and
Cramer had 198 days - or until September 30, 2004 - to file a timely federal habeas
petition. Cramer’s petition, filed in October, was therefore untimely under the
district court’s calculations.
We granted a certificate of appealability (“COA”) on the following issue:
Whether the district court erred by finding that appellant’s 28 U.S.C. §
2254 petition was time-barred where the court failed to toll the one-
year limitations period for the time during which appellant could have
appealed the trial court’s order denying his Fla.R.Crim.P. 3.800(a)
motion, see Jones v. Nagle, 349 F.3d 1305, 1307-08 (11th Cir. 2003)?
II. Statute of Limitations
We review de novo a district court’s determination that a habeas petition is
time-barred. Nix v. Sec’y, Dep’t of Corr., 393 F.3d 1235, 1236 (11th Cir. 2004).
The AEDPA requires a state prisoner seeking a federal habeas corpus
remedy to file his federal petition within one year of the “conclusion of direct
review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). However, under the AEDPA, “[t]he 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
4
any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2); Carey v.
Saffold, 536 U.S. 214, 217, 122 S.Ct. 2134, 2136, 153 L.Ed.2d 260 (2002); Jones,
349 F.3d at 1307.
We have yet to address whether the time in which a petitioner could file an
appeal from the denial of a motion for post-conviction relief would toll the
limitations period if the petitioner does not, in fact, file an appeal.4 The resolution
of this issue depends on whether the claim is pending if no appeal is filed.
The Supreme Court has interpreted the word “pending” to “cover the time
between a lower state court’s decision and the filing of a notice of appeal to a
higher state court.” Carey, 536 U.S. at 217; Jones, 349 F.3d at 1307-08. “[U]ntil
the application has achieved final resolution through the State’s post-conviction
procedures, by definition it remains ‘pending.’” Carey, 536 U.S. at 220. As the
Supreme Court has explained, a claim is “pending” during “the period between
(1) the lower court’s adverse determination, and (2) the prisoner’s filing of a notice
of appeal, provided that the filing of the notice of appeal is timely under state law.”
Evans v. Chavis, 126 S.Ct. 846, 849 (2006) (emphasis and citation omitted).
4
In Jones, 349 F.3d at 1308, the state conceded that the time during which Jones could have
filed an appeal from the denial of his Rule 32 motion should have tolled the limitations period.
Because the state conceded the issue, this court did not address the tolling issue. The Tenth Circuit
has held that the limitations period would toll for the time in which the prisoner could have sought
an appeal under state law. Serrano v. Williams, 383 F.3d 1181, 1185 (10th Cir. 2004) (emphasis
added).
5
Nothing in the caselaw dictates that the appeal must be taken for the claim to
remain pending. Moreover, logic dictates that the claim is pending regardless of
whether the inmate actually files the notice of appeal. “Pending” refers to the
continuation of the process, or the time until the process is completed. Carey, 536
U.S. at 219-20; Wade, 379 F.3d 1254,1262 (11th Cir. 2004). The process is not
complete until there is no other avenue the prisoner could pursue. Thus, the claim
remains pending until the time to seek review expires.5 See id.
III. Conclusion
Therefore, because an appeal is part of the state collateral review process,
and a claim remains pending until the completion of the process, the district court
erred by concluding that the time in which Cramer could have filed an appeal from
the denial of his motion to correct sentence did not toll the statute of limitations.
Accordingly, we REVERSE and REMAND with instructions to reinstate the
petition.
5
In other contexts, whether the inmate files for review does not dictate tolling provisions.
For example, the AEDPA limitations period does not begin to run until the time in which an inmate
could seek certiorari review has expired, regardless of whether the inmate seeks such review. Wade,
379 F.3d at 1262. Moreover, this court has held that the time would toll where an inmate has filed
an appeal from the denial of a motion for rehearing of the denial of a motion to correct sentence
because the motion for rehearing fell within the “category of ‘State post-conviction or collateral
review.’” Nix, 393 F.3d at 1237. To refuse to apply the tolling provision simply because the inmate
did not file an appeal would be inconsistent.
6