Alonzo Moore v. James v. Crosby, Jr. ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 30, 2006
No. 05-13596 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00036-CV-1-MP-AK
ALONZO MOORE,
Petitioner-Appellant,
versus
JAMES CROSBY,
CHARLIE CRIST,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 30, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant, Alonzo Moore, a Florida prisoner proceeding pro se, appeals the
district court’s denial of his federal habeas corpus petition, challenging his
conviction for armed robbery, brought pursuant to 28 U.S.C. § 2254. The
certificate of appealability (“COA”) in the present appeal concerns whether Coates
v. Byrd, 211 F.3d 1225 (11th Cir. 2000) (holding that the 90-day period allowed in
§ 2244(d)(1) only applies when calculating the finality of a state court judgment,
not a post-conviction motion), is still the proper method of calculating the statute
of limitations. On appeal, Moore argues that the one-year statute of limitation
contained in 28 U.S.C. § 2244(d)(1) for filing a habeas corpus petition should be
interpreted as being tolled during the ninety-day period wherein a prisoner may
petition the United States Supreme Court for certiorari.
We review a district court’s determination that a petition for federal habeas
corpus relief is time-barred under 28 U.S.C. § 2244(d) de novo. Bond v. Moore,
309 F.3d 770, 772 (11th Cir. 2002). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996),
established a one-year statute of limitations for petitions filed under § 2254.
§ 2244(d). This limitations period begins to run, inter alia, on the date on which
the judgment becomes final by the conclusion of direct review or the expiration of
the time for seeking such review. 28 U.S.C. § 2244(d)(1).
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When a properly filed state post-conviction motion is pending, the statute of
limitations is tolled. 28 U.S.C. § 2244(d)(2). A state post-conviction motion is
“pending” only as long as the case is in the state courts. Coates, 211 F.3d at 1227.
We specifically held that “the time during which a petition for writ of certiorari is
pending, or could have been filed, following the denial of collateral relief in the
state courts, is not to be subtracted from the running of time for 28 U.S.C. §
2244(d)(1) statute of limitations purposes.” Id. This means that the statute of
limitations is not tolled during the ninety-day period in which the petitioner could
have sought Supreme Court review of the denial of his post-conviction motion. Id.In a similar case, where the issue was “whether the statute of limitations is
tolled during the pendency of a petition for writ of certiorari in the United States
Supreme Court challenging the state court's denial of petitioner's earlier motion for
state collateral review,” we held that the district court erred in even granting the
COA. See Lawrence v. Florida, 421 F.3d 1221, 1224-25 (11th Cir. 2005), cert.
granted, 126 S. Ct. 1625 (U.S. Mar. 27, 2006) (No. 05-8820) (stating that,
“[b]ecause of the statutory constraint in issuing a COA, we are puzzled by the
district court's issuance of a COA in this case. The district court should not have
issued a COA on the statute of limitations issue because binding circuit precedent
clearly disposed of the issue.”). We reiterated that Coates disposed of the issue.
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Id. at 1225. We are bound by our own precedent. See United States v. Steele, 147
F.3d 1316, 1317-18 (11th Cir. 1998) (en banc) (holding, “under our prior precedent
rule, a panel cannot overrule a prior one's holding even though convinced it is
wrong”).
Because the ninety-day period for seeking United States Supreme Court
review following the state court denial of post-conviction relief does not toll the
time counted in determining the one-year time limit, we affirm the judgment of
dismissal.
AFFIRMED.
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