Charles Mogford v. Dept. of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 18, 2008
No. 07-15029 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-60932-CV-WPD
CHARLES MOGFORD,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Walter A. McNeil, Secretary,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Bill McCollum,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 18, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Charles Mogford, a Florida prisoner, appeals the dismissal of his petition for
a writ of habeas corpus as barred by the one year statute of limitation. 28 U.S.C. §
2254; Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214. The district court granted a certificate of appealability to
address “whether [Mogford’s] motion to mitigate under 3.800(c) of the Florida
Rules of Criminal Procedure tolled the one year statute of limitations for his
petition of writ of habeas corpus under 28 U.S.C. § 2254, and if so, whether an oral
order denying the motion was not sufficient to re-start the period of limitations.”
We affirm.
We review de novo the dismissal of a petition as barred by the statute of
limitation. Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). The Act
provides a one year statute of limitation that begins to run after the latest of four
events, which includes “the date on which the judgment became final . . . .”
28 U.S.C. § 2244(d)(1). That period can be tolled for “[t]he time during which a
properly filed application for State post-conviction or other collateral review is
pending.” Id. § 2244(d)(2). To qualify as an “application for State post-conviction
or other collateral review,” a pleading must actually seek “review” by making a
good faith request for legal relief from the court. Sibley v. Culliver, 377 F.3d
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1196, 1200–01 (11th Cir. 2004).
Mogford’s argument that his post-conviction motion tolled the statute of
limitation is foreclosed by our precedent. Mogford moved to reduce his sentence
based on assistance he provided to the government, his lack of a violent criminal
record, and “sentence manipulation” by the prosecutor. See Fla. R. Crim. P.
3.800(c). Mogford’s motion, which was a plea for leniency and was not a
challenge to the legality of his sentence, did not toll the limitation period. See
Alexander v. Sec’y, Dep’t of Corr., 523 F.3d 1291, 1297 (11th Cir. 2008). The
district court correctly concluded that Mogford’s petition is time-barred.
AFFIRMED.
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