Tyrone Baker v. Walter McNeil , 439 F. App'x 786 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUG 17, 2011
No. 09-14438
JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00337-CV-5-RH-AK
TYRONE BAKER,
Petitioner-Appellant,
versus
WALTER MCNEIL,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 17, 2011)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before DUBINA, Chief Judge, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:
The Supreme Court granted a petition for writ of certiorari and vacated our
judgment in Baker v. McNeil, 369 F. App’x 997 (11th Cir. 2010), vacated Baker v.
Buss, ___ U. S. ___, 131 S. Ct. 1715 (2011), and remanded the case to us for
further consideration in light of Wall v. Kholi, 562 U.S. ___, 131 S. Ct. 1278
(2011). We directed the parties to file simultaneous briefs discussing the effect, if
any, of the decision in Wall v. Kholi on the outcome of this case. The case is once
again ripe for decision.
I.
Appellant Tyrone Baker (“Baker”), a Florida state prisoner proceeding pro
se, appealed the district court’s order dismissing his habeas corpus petition,
brought under 28 U.S.C. § 2254. The district court found the petition barred by
the one-year statute of limitations of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). The district court issued a certificate of appealability
(“COA”) on the following issue: whether a state-court motion for discretionary
sentence reduction is an application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim within the meaning of 28
U.S.C. § 2244(d)(2). Based on our precedent in Alexander v. Sec’y, Dep’t of
Corr., 523 F.3d 1291, 1297–98 (11th Cir. 2008) (holding that a Florida Rule of
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Criminal Procedure 3.800(c) motion is not a tolling motion under 28 U.S.C. §
2244(d)(2)), we affirmed the district court’s judgment. In Alexander, we noted
that a Rule 3.800(c) motion “assumes that the sentence sought to be modified or
reduced is legal and functions effectively as a procedure for a petitioner to request
leniency from the sentencing court based on mitigating circumstances.” 523 F.3d
at 1295. A tolling motion must contain some form of legal analysis. Id. at 1297.
Therefore, we concluded that a Rule 3.800(c) motion that was only a plea for
leniency, but not an attack on the constitutionality or legal correctness of the
sentence, was not a tolling motion. Id. at 1297-99. We later clarified that a state
court motion is not a tolling motion unless it attacks the legality of the underlying
sentence or conviction. Davis v. Barrow, 540 F.3d 1323, 1324 (11th Cir. 2008).
In Kholi, the Supreme Court reviewed the question of whether a motion to
reduce sentence under Rhode Island law tolled the AEDPA limitations period.
The question involved the definition of the terminology “post-conviction or other
collateral review with respect to the pertinent judgment” as stated in 28 U.S.C. §
2244(d)(2). 131 S. Ct. at 1281-82. The Court held “that the phase ‘collateral
review’ in § 2244(d)(2) means judicial review of a judgment in a proceeding that
is not part of direct review.” Id. at 1282. The Court reasoned that “[b]ecause the
parties agree that a motion to reduce sentence under Rhode Island law is not part
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of the direct review process, we hold that respondent’s motion tolled the AEDPA
limitation period and that his federal habeas was therefore timely.” Id.
II.
Applying the Court’s analysis of collateral review in Kholi to the case
before us, we conclude that it does not alter our prior disposition. The Florida rule
at issue here provides:
A court may reduce or modify. . . . a legal sentence imposed by it
within 60 days after the imposition, or within 60 days after receipt by
the court of a mandate issued by the appellate court on affirmance of
the judgment and/or sentence on an original appeal, or within 60 days
after receipt by the court of a certified copy of an order of the
appellate court dismissing an original appeal from the judgment
and/or sentence, or, if further appellate review is sought in a higher
court or in successively higher courts, within 60 days after the highest
state or federal court to which a timely appeal has been taken under
authority of law, or in which a petition for certiorari has been timely
filed under authority of law, has entered an order of affirmance or an
order dismissing the appeal and/or denying certiorari. This
subdivision shall not be applicable to those cases in which the death
sentence is imposed or those in which the trial judge has imposed the
minimum mandatory sentence or has no sentencing discretion.
Fla. R. Crim. P. 3.800(c). Unlike the Rhode Island rules, Florida permits
sentencing challenges on direct appeal, through a separate rule, Florida Rule of
Criminal Procedure 3.800(a) (stating that a court may correct an illegal sentence at
any time), and through the post-conviction process. Additionally, a Florida Rule
3.800(c) motion, contrary to a Rule 3.800(1) motion under the Federal Rules of
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Criminal Procedure, is not a vehicle for raising legal error in the sentence. It vests
the trial court with absolute discretion to mitigate a sentence.
Moreover, unlike the rules involved in Kholi, Florida law does not permit an
appeal from the court’s disposition of a Rule 3.800(c) motion and provides no
mechanism for appellate review and has no applicable legal standards for the trial
judge to consider in granting or denying the request. See Williams v. State, 907
So. 2d 1224, 1225 (Fla. Dist. Ct. App. 2005) (“The trial court’s denial of a Rule
3.800(c) motion to mitigate is not appealable. . . . Thus, to the extent that Williams
seeks appellate review of the trial court’s disposition of his claim under Rule
3.800(c), we dismiss his appeal.”); Lancaster v. State, 821 So. 2d 416, 417 (Fla.
Dist. Ct. App. 2002) (same); Bateman v. State, 866 So. 2d 211, 211 (Fla. Dist. Ct.
App. 2004) (same). Additionally, the filing of a 3.800(c) motion does not toll the
time for the filing of a notice of appeal under Florida law. See Thomas v. State,
884 So. 2d 309, 311 (Fla. Dist. Ct. App. 2004) (stating that motions to modify
sentences, unlike motions to correct sentencing errors, do not toll the time to file a
notice of appeal)
Furthermore, we think it pertinent that only procedural issues concerning a
3.800(c) motion are reviewable by certiorari, Knafel v. State, 714 So. 2d 1195,
1195 (Fla. Dist. Ct. App. 1998), such as the timeliness of the rule 3.800(c). See
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e.g., Brown v. State, 707 So. 2d 1191, 1192 (Fla. Dist. Ct. App. 1998) (finding that
the state court erroneously denied motion for mitigation on the ground it was
untimely); Seward v. State, 912 So. 2d 389, 390 (Fla. Dist. Ct. App. 2005) (finding
motion timely because Seward filed it within sixty days after issuance of mandate
that concluded direct appeal); State v. Swett, 772 So. 2d 48, 51, n. 3 (Fla. Dist. Ct.
App. 2000) (holding that where trial court is without jurisdiction due to the
untimely consideration of motion for mitigation and erroneously grants mitigation,
appellate court will quash the order by way of certiorari). This limited certiorari
review does not encompass review of the validity of the sentence or any review
related to the discretionary ruling made by the trial court on the Rule 3.800(c)
request.
There is another vital distinction between the rules at issue in Kholi and the
ones in our case. In deciding Kholi, the Court relied heavily upon the fact that its
interpretation would not complicate the work of the federal habeas court because it
would not require federal courts to separate motions for reduced sentence into
different categories. That concern is not present in Florida because Rule 3.800(c)
clearly is only a request for leniency. The Rhode Island rule is not solely a request
for leniency, and it provides guiding legal principles for the trial court in making
its decision. Thus, it is not part of the direct review process and is instead part of
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the collateral review process. The Court rejected the state’s version because it
would “greatly complicate the work of the federal habeas courts” by requiring the
courts “to separate motions for a reduced sentence into two categories: those that
challenge a sentence on legal grounds and those that merely ask for leniency.”
Kholi, 562 U.S. at ___, 131 S. Ct. at 1288. To the contrary, Florida law delineates
clearly its motions in separate rules—Rule 3.800(a) seeks relief directed to the
legality of the sentence and Rule 3.800(c) requests only pleas for mercy. Thus,
under the Florida rules at issue here, there is no collateral review— “judicial
review that occurs in a proceeding outside of the direct review process”—as
described in Kholi, 131 S. Ct. at 1289, that occurs pursuant to Rule 3.800(c). For
the aforementioned reasons, we conclude that the Supreme Court decision in Kholi
does not compel a different result in this case. Accordingly, we reinstate our
previous opinion and affirm the district court’s order denying Baker federal habeas
relief.
AFFIRMED.
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