Leo C. Hollingsworth v. Atty. General of Florida

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 9, 2009
No. 06-14599
THOMAS K. KAHN
_________________________
CLERK
D.C. Docket No. 05-22510-CV-UUB
LEO C. HOLLINGSWORTH,
Petitioner-Appellant,
versus
ATTORNEY GENERAL OF FLORIDA,
Bill McCollum,
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
Respondents-Appellees.
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Appeal from the United States District Court for the
Southern District of Florida
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Before BLACK, BARKETT and PRYOR, Circuit Judges.
BY THE COURT:
On December 30, 2008, this Court granted Appellees’ motion to stay this
appeal pending the Supreme Court’s disposition of Jimenez v. Quarterman, S.Ct.
Docket No. 07-6984.
On January 13, 2009, the Supreme Court issued its decision in Jimenez. See
Jimenez v. Quarterman, _ U.S. _, 129 S.Ct. 681 (2009). The Court held that,
...[W]here a state court grants a criminal defendant the right to file an
out-of-time direct appeal during state collateral review, but before the
defendant has first sought federal habeas relief, his judgment is not yet “final”
for purposes of [28 U.S.C.] § 2244(d)(1)(A). In such a case, “the date on
which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review” must reflect the conclusion of
the out-of-time direct appeal, or the expiration of the time for seeking review
of that appeal.
Id., 686-687. Direct review of the out-of-time appeal concludes when the Supreme
Court affirms a conviction on the merits on direct review or denies a petition for a
writ of certiorari, or, if the prisoner elects not to pursue certiorari review, when the
time for seeking certiorari expires.1 Id., 685-686.
1
Jimenez v. Quarterman effectively abrogates Coates v. Byrd, 211 F.3d 1225 (11th Cir.
2000), to the extent that Coates held that the one-year filing period was not tolled during the ninety-
day period in which a state prisoner could have but did not file a petition for a writ of certiorari in
the United States Supreme Court. Under the prior panel precedent rule, “...a prior panel’s
holding is binding on all subsequent panels unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or by this court sitting
en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
2
On February 24, 2009, Appellees filed a motion to remand for further
proceedings in light of Jimenez v. Quarterman. Because Appellees concede in their
motion that, under Jimenez v. Quarterman, Appellant’s petition is not time-barred, the
motion is construed as a confession of error.
Appellant objects to Appellees’ motion to the extent that Appellees suggests
that the district court, rather than this Court, should decide whether, in light of
Jimenez v. Quarterman, the petition is time-barred; this objection is construed as a
motion to vacate the district court’s dismissal order before remanding for further
proceedings.
Appellant’s motion to vacate the district court’s dismissal order is GRANTED.
The July 17, 2006, order granting review of the magistrate’s supplemental order to
show cause and dismissing Appellant’s petition as time-barred is hereby VACATED.
Appellees’ motion for remand for further proceedings in light of Jimenez v.
Quarterman is also GRANTED.
Appellant has asked this Court to publish its decision on the instant motions.
Appellant’s motion for publication is GRANTED.
3