John Everett Pettway v. Bernie McCabe , 510 F. App'x 879 ( 2013 )

Case: 11-15655 Date Filed: 02/26/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15655
Non-Argument Calendar
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D.C. Docket No. 8:11-cv-00890-JDW-AEP
JOHN EVERETT PETTWAY,
Plaintiff-Appellant,
versus
BERNIE MCCABE,
State Attorney, Sixth Judicial Circuit,
Pasco County, Florida,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 26, 2013)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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John Pettway, a state prisoner proceeding pro se, appeals the district court’s
sua sponte dismissal of his civil rights complaint filed pursuant to 42 U.S.C. §
1983. Mr. Pettway alleged in his complaint that Bernie McCabe, State Attorney for
Florida’s Sixth Judicial Circuit, violated his constitutional rights by refusing to
conduct DNA testing on certain evidence from the scene of the crime for which he
was convicted. On appeal, Mr. Pettway contends that the district court erred in
concluding that his complaint was time-barred and failed to state a claim. Mr.
Pettway also argues that the district court erred in denying his motion for
reconsideration. We disagree, and affirm.
We review a district court’s interpretation and application of the statute of
limitations de novo. See Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337
(11th Cir. 2008). Dismissal is appropriate if the face of the complaint indicates
beyond a doubt that the action is time-barred. See Hughes v. Lott, 350 F.3d 1157,
1163 (11th Cir. 2003). Mr. Pettway’s § 1983 complaint is subject to Florida’s four-
year statute of limitations for personal injury actions, which begins to run at “the
end of the state litigation in which [Mr. Pettway] unsuccessfully sought access to
the evidence.” Van Poyck v. McCollum, 646 F.3d 865, 867 (11th Cir. 2011).
In 2005, Mr. Pettway filed a state-court motion pursuant to Florida Rule of
Criminal Procedure 3.853 to access DNA evidence. The Florida appellate court
affirmed the denial of that motion, and the U.S. Supreme Court denied certiorari in
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October 2006. See Pettway v. Florida, 926 So. 2d 1283 (Fla. 2d DCA) (mem.),
cert. denied, 549 U.S. 892 (2006) (mem.). Consequently, the statute of limitations
began to run no later than October 2006 (the end of the state court litigation), and
Mr. Pettway had until October 2010 to file his § 1983 claim. Because he did not
file suit until April 2011, the district court did not err in concluding that his claim
was time-barred. In light of this conclusion, we do not address Mr. Pettway’s
substantive arguments.
The district court also did not err in denying Mr. Pettway’s motion to
reconsider. “The only grounds for granting [a Rule 59] motion are newly-
discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d
1335, 1343 (11th Cir. 2007) (alteration in original). On appeal, Mr. Pettway argues
that the statute of limitations did not begin to run until the Supreme Court decided
Skinner v. Switzer, 131 S. Ct. 1289, 1298–99 (2011), which held that DNA-access
cases were cognizable under § 1983. His argument might have merit had we not
allowed these claims prior to Skinner. On the contrary, this circuit was among the
few that allowed DNA-access claims under § 1983 prior to Skinner. See id. at
1293. Skinner merely reaffirmed a right that existed in this circuit since 2002. See
Bradley v. Pryor, 305 F.3d 1287, 1290–91 (11th Cir. 2002). We therefore reject
Mr. Pettway’s argument, and conclude that the statute of limitations bars his claim.
AFFIRMED.
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