Phillip Van Zant v. FL Parole Commission , 308 F. App'x 332 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12464 JANUARY 21, 2009
____________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 05-00208-CV-5-RS-EMT
PHILLIP VAN ZANT,
Petitioner-Appellant,
versus
FLORIDA PAROLE COMMISSION,
CHARLIE J. CRIST, JR.,
Respondents-Appellees.
____________________________
Appeal from the United States District Court
for the Northern District of Florida
_____________________________
(January 21, 2009)
Before WILSON and COX, Circuit Judges, and ALBRITTON,* District Judge.
*
Honorable W. Harold Albritton, United States District Judge for the Middle District of
Alabama, sitting by designation.
PER CURIAM:
Appellant Phillip Van Zant appeals from the dismissal of his 28 U.S.C. §
2254 petition for a writ of habeas corpus. The district court dismissed Van Zant’s
petition on the ground that it was untimely under the one year statute of limitations
established by the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2244(d)(1). Van Zant argued below that the
one-year statute of limitations was tolled pursuant to 28 U.S.C. § 2244(d)(2).
This court granted a certificate of appealability (“COA”) as to the issue of
whether the district court erred in determining that Van Zant’s 28 U.S.C. § 2254petition challenging the revocation of his parole was time-barred under 28 U.S.C.
§ 2244(d)(1)(A). This court also appointed counsel for Van Zant, and heard oral
argument.
After review of the record, briefs and oral argument, we vacate and remand
for further proceedings.
I. BACKGROUND
In 1979, Van Zant was sentenced in the Circuit Court of Leon County,
Florida to life in prison. Van Zant was released on parole on January 19, 1999. In
July 2000, Van Zant was charged with four counts of violating the conditions of
his parole. Two counts were dismissed at the preliminary hearing, and the
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preliminary hearing officer found probable cause for two of the counts, one of
which charged Van Zant with making harassing phone calls to Virginia Johnston
and the other charging that he repeatedly and maliciously followed or harassed
Ms. Johnston. Van Zant’s final parole revocation hearing began before the Florida
Parole Commission on January 24, 2001, and was continued to June 28, 2001.
Van Zant was found guilty of one count, the harassing phone calls charge, and the
Florida Parole Commission revoked his parole on August 8, 2001.
Van Zant filed his first state habeas petition in the Circuit Court for
Lafayette County, Florida, challenging his parole revocation, on September 5,
2001. It was denied on October 1, 2001, and a motion for rehearing was denied on
November 2, 2001. Van Zant appealed the denial of his petition by filing a
petition for writ of certiorari with Florida’s First District Court of Appeal (“First
DCA”) on December 29, 2001. It was denied on October 3, 2002.
On March 6, 2002, while his petition for writ of certiorari was pending
before the First DCA, Van Zant filed a petition for writ of mandamus in the state
circuit court. This petition was dismissed on October 16, 2002, and Van Zant’s
motion for rehearing was denied on November 5, 2002. Van Zant appealed the
dismissal of his petition for mandamus by filing a second petition for writ of
certiorari with the First DCA on December 4, 2002. On July 8, 2003, the First
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DCA denied that petition, and mandate issued on September 12, 2003.
Van Zant filed a second state petition for writ of habeas corpus on July 8,
2003. The state circuit court dismissed this petition as successive on January 8,
2004. Van Zant filed a motion for rehearing on January 27, 2004, which was
denied on May 11, 2004. On June 10, 2004, Van Zant filed a third petition for
writ of certiorari with the First DCA as an appeal of the dismissal of the second
petition for habeas corpus relief. The First DCA dismissed the petition without
explanation on July 30, 2004. Van Zant filed a motion for rehearing on August
16, 2004, and filed an amended motion for rehearing on September 29, 2004. The
motion for rehearing was denied on November 5, 2004. The mandate issued for
that decision on November 23, 2004.
Van Zant filed this § 2254 petition in the United States District Court for the
Northern District of Florida on October 7, 2005. On April 20, 2007, the district
court adopted a Report and Recommendation of the magistrate judge and
dismissed the petition on the ground that it was untimely.
II. STANDARD OF REVIEW
This court reviews de novo a district court’s denial of a habeas corpus
petition as untimely. Chavers v. Sec’y, Fla. Dep’t. of Corr., 468 F.3d 1273, 1274
(11th Cir. 2006) (per curiam).
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III. DISCUSSION
Although the revocation of Van Zant’s parole is an administrative action, it
is considered to be pursuant to a judgment of a state court, properly governed by
28 U.S.C. § 2241 and 28 U.S.C. §2254, subject to the one year statute of
limitations found in 28 U.S.C. § 2244(d). See Peoples v. Chatman, 393 F.3d 1352,
1353 (11th Cir. 2004) (per curiam). Van Zant’s federal petition was filed more
than a year after the conclusion of the administrative action. Van Zant argues that
tolling applies in this case so that his federal petition is timely.
AEDPA provides that the time in which a properly filed application for
State post-conviction relief is pending is not counted toward any period of
limitation. 28 U.S.C. § 2244(d)(2). An untimely motion for post-conviction
relief, however, is not “properly filed” and does not toll the one-year limitations
period. Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1316 (11th Cir. 2006).
Van Zant unquestionably had properly filed state filings which tolled the
running of the AEDPA statute of limitation up until the time to appeal the
dismissal of his second state court petition expired. The issue before this court,
therefore, is whether Van Zant’s third petition was properly filed so as to further
toll the statute of limitations. The district court concluded that it was not.
The third petition was filed on June 10, 2004, more than 30 days after the
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January 8, 2004 dismissal of the second petition. However, there was an
intervening motion for rehearing of the dismissal of the second petition, filed on
January 27, 2004, which Van Zant claims tolled the time limit for the filing of the
third petition. Florida Rule of Appellate Procedure 9.330(a) requires such a
motion for rehearing to be filed within “15 days of an order or within such time as
set by the court.” The state circuit court denied the motion for rehearing on May
11, 2004. Van Zant acknowledges that the motion for rehearing of the dismissal
of the second petition was filed 19 days after the second petition was dismissed,
which is outside of the 15 days allowed under Rule 9.330(a). Therefore, if this 15
day deadline is regularly followed, the motion for rehearing was not “properly
filed,” and did not toll the time limit for purposes of AEDPA, and that is what the
district court found. Van Zant contends, however, that that timing rule is not
firmly established and regularly followed, and so cannot render his untimely filing
improperly filed.
A rule governing filings in state court must be firmly established and
regularly followed before non-compliance with the rule will render a petition not
properly filed for purposes of AEDPA’s tolling provision. Siebert v. Campbell,
334 F.3d 1018, 1025 (11th Cir. 2003) (per curiam).
In Pinecrest Lakes, Inc. v. Shidel, 802 So. 2d 486, 488 n.3 (Fla. 4th Dist. Ct.
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App. 2001), the Florida court explained the operation of Florida Rule of Appellate
Procedure 9.330(a), as being that while the court is “empowered by rule 9.330(a)
to set a different period for filing motions for rehearing, we almost always require
parties to seek an enlargement of the rule’s 15-day period before it has fully
elapsed.” (emphasis added).
The Florida Parole Commission urges this court to conclude, as did the
district court, that an untimely motion for rehearing filed without having requested
an extension of time before the 15-day period elapsed does not postpone rendition
of the final order under Florida law; therefore, Van Zant’s filing of the third
petition after an untimely filing of the motion for rehearing is itself untimely. The
Pinecrest Lakes, Inc. court’s description of the timing requirement under Rule
9.330(a), however, indicates that a motion for rehearing which is untimely can be
considered as timely at the discretion of the court. Cf. Thompson v. Singletary,
659 So. 2d 435, 437 (Fla. 4th Dist. Ct. App. 1995) (holding that because Rule
9.330(a) is not jurisdictional, court could consider an untimely motion for
rehearing).
According to the Pinecrest Lakes, Inc. court, Florida courts may extend the
time for motions for rehearing at their discretion, rather than applying the rule.
Therefore, the district court’s finding that the motion for rehearing was untimely,
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and, therefore, not properly filed, was based on a rule that is not regularly
followed. Accordingly, the failure to file the motion for rehearing within the time
limit does not render Van Zant’s motion improperly filed for purposes of the
AEDPA. The statutory tolling ended when the third petition was finally denied by
issuance of mandate on November 23, 2004. Thus, Van Zant’s October 7, 2005
federal habeas petition was timely filed. See Siebert, 334 F.3d at 1025.
Van Zant also contends that he is actually innocent of the charge which was
the basis for the revocation of his parole. Our review in habeas cases is generally
limited to the issues specified in the COA, see Murray v. United States, 145 F.3d
1249, 1251 (11th Cir. 1998) (per curiam), and the COA issued in this case does
not refer to any claim of actual innocence by Van Zant. Therefore, we do not
address the issue of actual innocence. See Diaz v. Sec’y for Dep’t of Corr., 362
F.3d 698, 702 (11th Cir. 2004) (per curiam).
IV. CONCLUSION
For the foregoing reasons, we VACATE the district court’s order dismissing
Van Zant’s petition as untimely and REMAND for further proceedings consistent
with this opinion.
VACATED AND REMANDED.
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