Case: 19-11676 Date Filed: 08/20/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11676
Non-Argument Calendar
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D.C. Docket No. 8:16-cv-01520-SDM-CPT
KEITH THORNTON,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 20, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and NEWSOM, Circuit
Judges.
PER CURIAM:
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Keith Thornton, a Florida prisoner proceeding pro se, appeals the dismissal
of his 28 U.S.C. § 2254 petition. The district court dismissed his petition as time-
barred, concluding that he was not entitled to tolling of the federal habeas statute of
limitations for a Florida Rule of Criminal Procedure 3.850 motion filed after the
two-year state statute of limitations for filing such a motion expired. After careful
consideration and review, we affirm the district court’s decision.
Thornton was sentenced to 20 years in prison for aggravated battery with a
weapon resulting in great bodily harm, first-degree petty theft, and carrying a
concealed weapon. Thornton’s sentence became final at the conclusion of direct
review of his conviction and sentence on March 17, 2010. Thornton filed several
post-conviction motions and petitions in state courts, including a July 17, 2014
Florida Rule of Criminal Procedure 3.850 motion, which was denied as untimely.
On June 13, 2016, Thornton filed a petition under 28 U.S.C. § 2254 in the
United States District Court for the Middle District of Florida, seeking a writ of
habeas corpus. In its answer, the state asserted that Thornton’s petition was time-
barred. The district court agreed, concluding that because Thornton’s July 17,
2014 Rule 3.850 motion was dismissed as untimely, the motion did not toll the
statute of limitations and thus, Thornton’s federal habeas corpus petition was
untimely. Accordingly, the district court dismissed his petition as time-barred.
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This Court issued a certificate of appealability on the question of whether the
district court erred by dismissing Thornton’s § 2254 petition.1
We review de novo a district court’s determination that a habeas petition is
untimely. Cramer v. Sec’y, Dep’t of Corr.,
461 F.3d 1380, 1383 (11th Cir. 2006).
We review the district court’s factual findings for clear error and “must affirm the
court’s factual findings unless the record lacks ‘substantial evidence’ to support the
court’s determinations.” Clark v. Crosby,
335 F.3d 1303, 1307 (11th Cir. 2003).
The Antiterrorism and Effective Death Penalty Act imposes a one-year
statute of limitations for filing a § 2254 petition, which begins to run from the date
on which the judgment became final by the conclusion of direct review of the
expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1). The
limitations period is statutorily tolled, however, during times in which a “properly
filed” application for state post-conviction relief is pending in state court.
Id.
§ 2244(d)(2). An application for state post-conviction relief that is dismissed as
untimely is not “properly filed” and, thus, does not toll the federal statute of
limitations. Pace v. DiGuglielmo,
544 U.S. 408, 417 (2005).
1
In his notice of appeal, Thornton argues that the district court: (1) erred by calculating
the statute of limitations according to the dates when the state courts received his filings, rather
than when he delivered them to prison authorities; and (2) should have considered his sentence
as becoming final on August 21, 2015, as opposed to March 17, 2010, because the state court
amended his sentence at that time to reflect jail time served, which restarted the statute of
limitations. However, these arguments were never presented to the district court, and we do not
consider arguments that are raised for the first time on appeal. See Nyland v. Moore,
216 F.3d
1264, 1265 (11th Cir. 2000).
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“Under Florida law, an individual convicted of a noncapital crime must, with
limited exceptions, file a collateral post-conviction challenge to his conviction and
sentence via a Rule 3.850 motion rather than a habeas corpus petition.” Thompson
v. Sec’y, Dep’t of Corr.,
595 F.3d 1233, 1236–37 (11th Cir. 2010); Fla. R. Crim. P.
3.850(l). Rule 3.850(b) establishes a two-year statute of limitations with certain
exceptions not at issue in this appeal. Fla. R. Crim. P. 3.850(b).
Here, because Thornton did not file his state habeas petition until more than
two years after his sentence became final, the district court did not err by
dismissing Thornton’s petition as untimely. The state court concluded that the
petition was untimely when construed as a Rule 3.850 motion, and the district
court correctly determined that the motion was not properly filed under the
meaning of 28 U.S.C. § 2244(d)(2). Thus, it did not toll the statute of limitations
under § 2244(d)(1). Without tolling by that motion, more than one year of the
federal statute of limitations passed, and Thornton’s § 2254 petition was untimely.
Accordingly, the district court properly dismissed the petition as time-barred, and
we affirm.
AFFIRMED.
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