Michael Duane Zack, III v. Kenneth S. Tucker

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF
________________________ APPEALS
ELEVENTH CIRCUIT
JANUARY 9, 2012
No. 09-12717
JOHN LEY
________________________
D. C. Docket No. 05-00369-CV-RH
MICHAEL DUANE ZACK, III,
Petitioner-Appellant,
versus
KENNETH S. TUCKER,
PAM BONDI,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 9, 2012)
Before DUBINA, Chief Judge, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
This appeal raises questions of statutory construction and of the doctrine of
precedent.
Petitioner was convicted in Florida state court and was sentenced to death.
The Florida Supreme Court affirmed Petitioner’s conviction and sentence and later
denied post-conviction relief. The District Court denied habeas relief but granted a
certificate of appealability on the question of the habeas petition’s timeliness. We
vacate the District Court’s decision and remand the case.
BACKGROUND
Petitioner Michael Duane Zack, III was convicted in 1997 in Florida state
court for murder, sexual battery, and robbery. The Florida Supreme Court
affirmed Petitioner’s conviction and sentence on direct review. Zack v. State, 753
So. 2d 9 (Fla. 2000). On 2 October 2000, Petitioner’s conviction and sentence
became final when the United States Supreme Court denied his petition for
certiorari. See Zack v. Florida, 121 S. Ct. 143 (2000).
On 26 December 2001, Petitioner filed his first state post-conviction
motion, asking for an extension of time for filing a motion for collateral review.
On 10 May 2002, Petitioner then filed a motion in state court to vacate his
conviction and sentence. Both the December and May motions came more than
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one year after the conviction became final. When Petitioner’s collateral review
process was going on in state court, the United States Supreme Court decided
Atkins v. Virginia, 122 S. Ct. 2242 (2002); and Petitioner amended his post-
conviction filings to include claims newly made available under Atkins. In 2005,
the Florida Supreme Court denied Petitioner all post-conviction relief. Zack v.
State, 911 So. 2d 1190 (Fla. 2005).
Petitioner next turned to the federal courts for post-conviction relief, filing
this habeas petition and raising multiple claims for relief, including a claim under
Atkins. The District Court dismissed all of Petitioner’s non-Atkins claims as
untimely and denied the Atkins claim on the merits. The District Court then
granted a certificate of appealability on the timeliness issue.
STANDARD OF REVIEW
Petitioner’s habeas petition is subject to the provisions of the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214(1996) (codified in scattered sections of Title 28 of the U.S. Code) (“the AEDPA”).
The AEDPA imposes a one-year statute of limitations for the filing of section 2254
petitions. 28 U.S.C. § 2244(d)(1). We review de novo a district court’s
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determination that a habeas petition is time barred. Hepburn v. Moore. 215 F.3d
1208 (11th Cir. 2000).
DISCUSSION
The AEDPA statute of limitation is expressed in section 2244(d):
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitations period shall run from the latest of -
(A) the date on which the judgment became final
by the conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by a State action in violation of the
Constitution or laws of the United States is removed, if
the applicant is prevented from filing by such State
action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed
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application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of
limitation under this subsection.
28 U.S.C. § 2244(d) (emphasis added).
The District Court analyzed each of Petitioner’s habeas claims separately for
timeliness. The District Court found that more than one year had run from the time
Petitioner’s conviction became final until he filed his federal habeas petition but
that less than one year (taking tolling into account) had run from the Supreme
Court’s Atkins decision until he filed the petition. Zack v. Crosby, 607 F. Supp. 2d
1291, 1295 (N.D. Fla. 2008). Based on these findings, the District Court
concluded that the non-Atkins claims were time barred; but the District Court
concluded that the Atkins claim was timely under section 2244(d)(1)(C) because
Atkins recognized a new right and was retroactively applicable to cases on
collateral review.
Petitioner does not contend that he filed a motion sufficient to toll the
running of the statute of limitations on his non-Atkins claims within one year of his
conviction’s becoming final on 2 October 2000. Petitioner just contends that the
timeliness of his habeas petition must be analyzed by looking at the petition as a
whole and not by analyzing his petition claim by claim. He asserts that his timely
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Atkins claim revived his other time-barred claims, making the entire petition, in
effect, timely.
In Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003), this Court laid down
the rule for analyzing timeliness of a petition. The Walker court addressed a
habeas petition that included one claim that was timely and some other claims that
-- viewed in isolation -- were untimely. The Walker court said this question was
then before the court for decision: “whether individual claims within a single
habeas petition may be reviewed separately for timeliness, in light of Artuz v.
Bennett, 531 U.S. 4, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000).” Walker, 341 F.3d
at 1242.
The petition in Walker involved a resentencing and was determined to be
timely under section 2244(d)(1)(A). But the decision of Walker, interpreting
section 2244(d), reaches beyond the circumstance of a resentencing. Given the
arguments made to the Walker court and the process of reasoning set out in its
opinion, the Walker court decided -- as a principle of law -- that a single limitation
period applies to a whole petition and that the limitation period for the whole
petition runs one year from the latest of the triggering events established in section
2244(d)(1)(A)-(D). Id. at 1245. The rule from the Walker decision was stated in
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the opinion this way:1 “[t]he statute of limitations in § 2244(d)(1) applies to the
application as a whole; individual claims within an application cannot be reviewed
separately for timeliness.” Id.
In the light of this rule, the entire petition in Walker qualified, in fact, as
timely because the resentencing activated a one-year-limitation period under
section 2244(d)(1)(A), given that the Walker petition included a challenge to the
resentencing; but, in law, the existence of any of the other triggering events in
section 2244(d)(1)(B)-(D) would have equally made the entire Walker petition
timely as long as the petition included a timely claim under one of those other
triggering provisions.
Given the approach taken by the Walker court, the existence of a
resentencing was not, in itself, viewed as the material fact. To the Walker court,
the evident material fact -- that is, the legally relevant thing -- was the existence of
any one of the kind of triggering events listed in the pertinent limitations statute.
Walker binds us in the present case. Section 2244(d)(1) has in no way been
amended since Walker was decided. No Supreme Court holding or en banc
holding from this Court has superseded the Walker decision on the manner to
1
We understand that not every professed rule set out in an appellate opinion is binding
precedent.
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analyze timeliness in a habeas petition.2 In this Circuit, the timely Atkins claim in
Petitioner’s petition makes timely all the other claims in the petition: reviving
claims that were determined to be individually untimely by the District Court. The
Walker court explicitly recognized that its decision would allow the “resurrection
of what seem to be time-barred claims tagging along on the coattails of a timely
claim.” Walker, 341 F.3d at 1247. That “resurrection” has happened in the present
petition.
The District Court, as a matter of law, erred in applying the statute of
limitation separately to each claim in the petition and in dismissing any claim in
the petition in this case on the grounds of untimeliness.
VACATED and REMANDED. 3
2
The footnote in Pace v. DiGuglielmo, 125 S. Ct. 1807, 1813 n.6 (2005), cited by the
District Court and Appellees does not constitute a holding. We know that our Circuit’s law on
this limitations question is not the law everywhere.
The precise bounds of most decisional rules are uncertain. But we feel obliged to follow
the Walker rule. Given the way the case was argued to the Walker court, and the manner in
which the Walker case was decided, we cannot accept the contention that the Walker decision
here is only persuasive authority: that is, not binding authority -- except for habeas applications
in which one claim, at least, is tied to the circumstance of a resentencing.
3
Petitioner/Appellant’s Motion for Expansion of Certificate of Appealability, filed 5
December 2011, is DENIED.
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