Stites v. Secretary for the Department of Corrections , 278 F. App'x 933 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
May 21, 2008
No. 07-13071
THOMAS K. KAHN
Non-Argument Calendar
CLERK
--------------------------------------------
D.C. Docket No. 05-00021-CV-ORL-22KRS
PETER ALLEN STITES,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS, Florida,
ATTORNEY GENERAL OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
---------------------------------------------
(May 21, 2008)
Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Peter Allen Stites, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal of his habeas petition, 28 U.S.C. § 2254, as barred by the one-
year statute of limitations of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”).1 Reversible error has been shown; we vacate and remand for
additional proceedings.
On 9 September 1999, a state appellate court affirmed Stites’s convictions
for lewd or lascivious assault upon a child. For these convictions, Stites received
consecutive sentences of 15 and 12.89 years’ imprisonment. Shortly after the
affirmance of his convictions, Stites filed a Fla.R.Crim.P. 3.800(c) motion to
reduce a legal sentence. After conducting a hearing on the motion, the trial court,
by way of an amended judgment dated 2 June 2000, reduced Stites’s 12.89-year
sentence to 7.31 years, to run concurrently with the 15-year sentence. On 31
October 2000, Stites filed a Fla.R.Crim.P. 3.850 motion; proceedings on this
motion ended when the appellate court affirmed the denial of relief and issued its
mandate on 18 June 2004. Stites filed his section 2254 petition on 30 December
2004.
The district court calculated the start of the limitations period based on the
date the state appellate court originally affirmed Stites’s convictions. The court
1
The district court previously dismissed Stites’s section 2254 petition as time-barred, and Stites
appealed to this Court. We vacated and remanded for determination of whether Stites’s
Fla.R.Crim.P. 3.800(c) motion tolled the one-year statute of limitations. His case is back on appeal
after remand.
2
concluded that Stites’s Rule 3.800(c) motion did not toll the limitations period,
and dismissed the petition as time-barred. We granted a certificate of appealability
(“COA”) on whether the district court properly dismissed Stites’s petition as
untimely in the light of Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th Cir.
2007), petition for cert. filed (U.S. Jan. 30, 2008) (07-1008).
On appeal, Stites argues that his petition was timely under Ferreira because
his modified sentence became final on 2 June 2000.2 We review de novo a district
court’s determination that a habeas petition is time-barred. Moore v. Crosby, 321
F.3d 1377, 1379 (11th Cir. 2003).3
The AEDPA imposes a one-year limitations period on all habeas corpus
petitions. See 28 U.S.C. § 2244(d)(1)(A) (measuring this one-year period from,
among other things, “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review”).
While a “properly filed application for State post-conviction or other collateral
2
Stites did not raise his Ferreira argument below; and we generally do not consider issues not
raised before the district court. See Nyland v. Moore, 216 F.3d 1264, 1265 (11th Cir. 2000). But
we will address the argument here because it specifically was addressed in the COA and Ferreira was
decided after the district court issued its order dismissing Stites’s petition. See Murray v. United
States, 145 F.3d 1249, 1251 (11th Cir. 1998) (scope of review on appeal from dismissal of a post-
conviction motion is restricted to issue specified in the COA).
3
In addition, we liberally construe pro se pleadings. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
3
review” is pending, however, the limitations period is tolled. 28 U.S.C.
§ 2244(d)(2).
In Ferreira, we concluded that “AEDPA’s statute of limitations begins to
run from the date both the conviction and the sentence the petitioner is serving at
the time he files his application become final because judgment is based on both
the conviction and the sentence.” 494 F.3d at 1293 (emphasis in original) (relying
on Burton v. Stewart, 127 S. Ct. 793 (2007)).4 Following the logic of Ferreira,
Stites was “in custody” pursuant to his 2 June 2000 resentencing judgment --
which was based on his 7 September 1999 conviction -- when he filed his federal
habeas petition. See Ferreira, 494 F.3d at 1292 (“the judgment to which [section
2254(a)] refers is the underlying conviction and most recent sentence that
authorizes the petitioner’s current detention”) (emphasis added). Thus, under
Ferreira, the 2 June 2000 judgment that imprisoned Stites controls the start of
AEDPA’s statute of limitations. When Stites filed his tolling Rule 3.850 motion,
149 days in the limitations period had gone untolled. Between the time his Rule
3.850 proceedings ended and when he filed his section 2254 petition, another 194
days of untolled time passed. So, a total of 343 days of untolled time had passed
4
The petitioner in Ferreira had been resentenced pursuant to a Fla.R.Crim.P. 3.800(a) motion to
correct a sentence.
4
when Stites filed his section 2254 petition; and his petition was timely. The
district court erred in not calculating the limitations period from the date of the
resentencing judgment as mandated by Ferreira. Accordingly, we vacate and
remand for additional proceedings.5
VACATED AND REMANDED.
5
The certificate of appealability also asked whether the district court erred in the light of Delancy
v. Fla. Dep’t of Corr., 246 F.3d 1328 (11th Cir. 2001). In Delancy, we determined that Delancy’s
Rule 3.800(a) motion challenging consecutive sentences properly was filed under section 2244(d)(2)
and tolled the limitations period -- even though the state court had dismissed it as being brought
pursuant to the wrong statutory vehicle -- because the motion, on its face, complied with state
procedural and filing requirements. 246 F.3d at 1330-31. But here, at issue was not whether Stites’s
Rule 3.800(c) motion complied with state procedural and filing requirements, but whether the
motion constituted an “application for State post-conviction or other collateral review.” We have
concluded that a Rule 3.800(c) motion to reduce a legal sentence is not an application for post-
conviction relief or other collateral review within the meaning of section 2244(d)(2): the motion
does not challenge the legality of the sentence. Alexander v. Sec’y, Dep’t of Corr., __ F.3d __ (11th
Cir. April 8, 2008). We, therefore, do not address Stites’s appellate arguments about Delancy and
whether the Rule 3.800(c) motion tolled the limitations period.
5