                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           AUG 17, 2011
                             No. 09-14438
                                                            JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 08-00337-CV-5-RH-AK

TYRONE BAKER,



                                                         Petitioner-Appellant,

                                  versus

WALTER MCNEIL,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________
                             (August 17, 2011)

             ON REMAND FROM THE SUPREME COURT
                    OF THE UNITED STATES

Before DUBINA, Chief Judge, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:

      The Supreme Court granted a petition for writ of certiorari and vacated our

judgment in Baker v. McNeil, 369 F. App’x 997 (11th Cir. 2010), vacated Baker v.

Buss, ___ U. S. ___, 131 S. Ct. 1715 (2011), and remanded the case to us for

further consideration in light of Wall v. Kholi, 562 U.S. ___, 131 S. Ct. 1278

(2011). We directed the parties to file simultaneous briefs discussing the effect, if

any, of the decision in Wall v. Kholi on the outcome of this case. The case is once

again ripe for decision.

                                          I.

      Appellant Tyrone Baker (“Baker”), a Florida state prisoner proceeding pro

se, appealed the district court’s order dismissing his habeas corpus petition,

brought under 28 U.S.C. § 2254. The district court found the petition barred by

the one-year statute of limitations of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). The district court issued a certificate of appealability

(“COA”) on the following issue: whether a state-court motion for discretionary

sentence reduction is an application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim within the meaning of 28

U.S.C. § 2244(d)(2). Based on our precedent in Alexander v. Sec’y, Dep’t of

Corr., 523 F.3d 1291, 1297–98 (11th Cir. 2008) (holding that a Florida Rule of

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Criminal Procedure 3.800(c) motion is not a tolling motion under 28 U.S.C. §

2244(d)(2)), we affirmed the district court’s judgment. In Alexander, we noted

that a Rule 3.800(c) motion “assumes that the sentence sought to be modified or

reduced is legal and functions effectively as a procedure for a petitioner to request

leniency from the sentencing court based on mitigating circumstances.” 523 F.3d

at 1295. A tolling motion must contain some form of legal analysis. Id. at 1297.

Therefore, we concluded that a Rule 3.800(c) motion that was only a plea for

leniency, but not an attack on the constitutionality or legal correctness of the

sentence, was not a tolling motion. Id. at 1297-99. We later clarified that a state

court motion is not a tolling motion unless it attacks the legality of the underlying

sentence or conviction. Davis v. Barrow, 540 F.3d 1323, 1324 (11th Cir. 2008).

      In Kholi, the Supreme Court reviewed the question of whether a motion to

reduce sentence under Rhode Island law tolled the AEDPA limitations period.

The question involved the definition of the terminology “post-conviction or other

collateral review with respect to the pertinent judgment” as stated in 28 U.S.C. §

2244(d)(2). 131 S. Ct. at 1281-82. The Court held “that the phase ‘collateral

review’ in § 2244(d)(2) means judicial review of a judgment in a proceeding that

is not part of direct review.” Id. at 1282. The Court reasoned that “[b]ecause the

parties agree that a motion to reduce sentence under Rhode Island law is not part

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of the direct review process, we hold that respondent’s motion tolled the AEDPA

limitation period and that his federal habeas was therefore timely.” Id.

                                         II.

      Applying the Court’s analysis of collateral review in Kholi to the case

before us, we conclude that it does not alter our prior disposition. The Florida rule

at issue here provides:

      A court may reduce or modify. . . . a legal sentence imposed by it
      within 60 days after the imposition, or within 60 days after receipt by
      the court of a mandate issued by the appellate court on affirmance of
      the judgment and/or sentence on an original appeal, or within 60 days
      after receipt by the court of a certified copy of an order of the
      appellate court dismissing an original appeal from the judgment
      and/or sentence, or, if further appellate review is sought in a higher
      court or in successively higher courts, within 60 days after the highest
      state or federal court to which a timely appeal has been taken under
      authority of law, or in which a petition for certiorari has been timely
      filed under authority of law, has entered an order of affirmance or an
      order dismissing the appeal and/or denying certiorari. This
      subdivision shall not be applicable to those cases in which the death
      sentence is imposed or those in which the trial judge has imposed the
      minimum mandatory sentence or has no sentencing discretion.

Fla. R. Crim. P. 3.800(c). Unlike the Rhode Island rules, Florida permits

sentencing challenges on direct appeal, through a separate rule, Florida Rule of

Criminal Procedure 3.800(a) (stating that a court may correct an illegal sentence at

any time), and through the post-conviction process. Additionally, a Florida Rule

3.800(c) motion, contrary to a Rule 3.800(1) motion under the Federal Rules of

                                          4
Criminal Procedure, is not a vehicle for raising legal error in the sentence. It vests

the trial court with absolute discretion to mitigate a sentence.

      Moreover, unlike the rules involved in Kholi, Florida law does not permit an

appeal from the court’s disposition of a Rule 3.800(c) motion and provides no

mechanism for appellate review and has no applicable legal standards for the trial

judge to consider in granting or denying the request. See Williams v. State, 907

So. 2d 1224, 1225 (Fla. Dist. Ct. App. 2005) (“The trial court’s denial of a Rule

3.800(c) motion to mitigate is not appealable. . . . Thus, to the extent that Williams

seeks appellate review of the trial court’s disposition of his claim under Rule

3.800(c), we dismiss his appeal.”); Lancaster v. State, 821 So. 2d 416, 417 (Fla.

Dist. Ct. App. 2002) (same); Bateman v. State, 866 So. 2d 211, 211 (Fla. Dist. Ct.

App. 2004) (same). Additionally, the filing of a 3.800(c) motion does not toll the

time for the filing of a notice of appeal under Florida law. See Thomas v. State,

884 So. 2d 309, 311 (Fla. Dist. Ct. App. 2004) (stating that motions to modify

sentences, unlike motions to correct sentencing errors, do not toll the time to file a

notice of appeal)

      Furthermore, we think it pertinent that only procedural issues concerning a

3.800(c) motion are reviewable by certiorari, Knafel v. State, 714 So. 2d 1195,

1195 (Fla. Dist. Ct. App. 1998), such as the timeliness of the rule 3.800(c). See

                                           5
e.g., Brown v. State, 707 So. 2d 1191, 1192 (Fla. Dist. Ct. App. 1998) (finding that

the state court erroneously denied motion for mitigation on the ground it was

untimely); Seward v. State, 912 So. 2d 389, 390 (Fla. Dist. Ct. App. 2005) (finding

motion timely because Seward filed it within sixty days after issuance of mandate

that concluded direct appeal); State v. Swett, 772 So. 2d 48, 51, n. 3 (Fla. Dist. Ct.

App. 2000) (holding that where trial court is without jurisdiction due to the

untimely consideration of motion for mitigation and erroneously grants mitigation,

appellate court will quash the order by way of certiorari). This limited certiorari

review does not encompass review of the validity of the sentence or any review

related to the discretionary ruling made by the trial court on the Rule 3.800(c)

request.

      There is another vital distinction between the rules at issue in Kholi and the

ones in our case. In deciding Kholi, the Court relied heavily upon the fact that its

interpretation would not complicate the work of the federal habeas court because it

would not require federal courts to separate motions for reduced sentence into

different categories. That concern is not present in Florida because Rule 3.800(c)

clearly is only a request for leniency. The Rhode Island rule is not solely a request

for leniency, and it provides guiding legal principles for the trial court in making

its decision. Thus, it is not part of the direct review process and is instead part of

                                           6
the collateral review process. The Court rejected the state’s version because it

would “greatly complicate the work of the federal habeas courts” by requiring the

courts “to separate motions for a reduced sentence into two categories: those that

challenge a sentence on legal grounds and those that merely ask for leniency.”

Kholi, 562 U.S. at ___, 131 S. Ct. at 1288. To the contrary, Florida law delineates

clearly its motions in separate rules—Rule 3.800(a) seeks relief directed to the

legality of the sentence and Rule 3.800(c) requests only pleas for mercy. Thus,

under the Florida rules at issue here, there is no collateral review— “judicial

review that occurs in a proceeding outside of the direct review process”—as

described in Kholi, 131 S. Ct. at 1289, that occurs pursuant to Rule 3.800(c). For

the aforementioned reasons, we conclude that the Supreme Court decision in Kholi

does not compel a different result in this case. Accordingly, we reinstate our

previous opinion and affirm the district court’s order denying Baker federal habeas

relief.

          AFFIRMED.




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