                                                                            PUBLISH


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                 FILED
                             FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                                  _________________                      ELEVENTH CIRCUIT
                                                                              02/24/2000
                                                                          THOMAS K. KAHN
                                      No. 98-4218                              CLERK
                                  _________________
                      District Court Docket No. 97-01978-CV-ASG


JEFFREY WEEKLY,

                                                                    Petitioner-Appellant,

       versus

MICHAEL W. MOORE,
DEPARTMENT OF CORRECTIONS, et al.,

                                                                    Respondents-Appellees.

                        ----------------------------------------------
                      Appeal from the United States District Court
                          for the Southern District of Florida
                        ----------------------------------------------
                                  (February 24, 2000)

Before BIRCH and BARKETT, Circuit Judges, and MILLS*, Senior District Judge.

RICHARD MILLS, Senior District Judge:




       *
         Honorable Richard Mills, Senior U. S. District Judge for the Central District of Illinois,
sitting by designation.
      Weekly appeals the district court’s dismissal of his habeas petition on the

grounds that it was not timely filed. We affirm the district court.

                                 BACKGROUND

      On April 28, 1988, Weekly was convicted by a jury of sexual battery,

kidnapping and aggravated battery. After re-sentencing, his conviction became final

in 1991.

      Weekly then began filing serial motions for relief in the state trial court. In

total, Weekly filed three post-conviction motions in the state trial court pursuant to

Florida Rule of Criminal Procedure 3.850.

      In the first motion, filed on December 17, 1991, he alleged ineffective

assistance of counsel and the discovery of new evidence regarding his confession. An

evidentiary hearing was held and the motion was denied. On May 24, 1994, the trial

court’s judgment was affirmed on direct appeal. On October 6, 1994 the Supreme

Court of Florida denied Appellant’s petition for review.

      The second post conviction motion was filed in the state trial court on

November 29, 1995, raising the same claims as the first petition, and adding a third

allegation that the state had used false testimony during a suppression hearing. This

motion was denied as a successive petition and on June 26, 1996, the District Court

of Appeals of Florida affirmed the state trial court’s dismissal of the motion.


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      On March 28, 1996 -- while the appeal of the second motion was still pending --

Weekly filed yet a third post-conviction motion, claiming that his counsel on his first

motion for post-conviction relief was ineffective for failing to raise all the ways in

which Weekly’s trial counsel had allegedly been ineffective. On September 6, 1996,

this motion also was denied as a successive petition. The District Court of Appeals

of Florida affirmed the denial on April 16, 1997.

      On June 25, 1997, Weekly filed a petition pursuant to 28 U.S.C.

§ 2254 in federal district court. The Magistrate Judge recommended that the petition

be dismissed as untimely under the one year limitations period contained in the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)

and (d)(2). The District Judge adopted the Magistrate Judge’s recommendation and

denied the petition on January 29, 1998. The District Judge also denied Weekly’s

motion for a certificate of appealability. This Court allowed the appeal to go forward

on the sole issue of the timeliness of Weekly’s petition.

      Thus, the sole issue here is whether Weekly’s second or third post-conviction

motions were “properly filed” even though they were dismissed as successive motions

by the state court.

                                     ANALYSIS




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      The AEDPA added a one year statute of limitations to federal habeas corpus

actions. It specifically provides that the limitation period for the filing of such

actions begins to run on “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

28 U.S.C. §2244(d)(1). Further, a tolling provision provides that “[t]he time

during which a properly filed 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)(2).

      For prisoners whose convictions became final prior to April 24, 1996, the

effective date of the AEDPA, a one-year grace period extends the deadline for

filing such petitions to April 23, 1997. See Wilcox v. Florida Dep’t of Corrections,

158 F3d 1209, 1211 (7th Cir. 1998)(citing Goodman v. United States, 151 F.3d

1335 (11th Cir.1998)). Thus, unless the time period is tolled, Weekly’s federal

habeas petition would be untimely if filed after April 23, 1997.

      Weekly argues that the time during which his second and third post-

conviction motions were pending should toll the one year limitations period for the

filing of his federal habeas petition. The second petition was pending until the




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appeal was denied on June 26, 1996. Thus, if the second petition was “properly

filed” Weekly had until June 25, 1997 to file his federal habeas petition.

       Weekly’s third petition was pending for more than a year after the effective

date of the AEDPA. If this petition were “properly filed” Weekly would have until

April 15, 1998 to file his federal habeas petition. Thus, since Weekly filed his

federal petition on June 25, 1997, if either the second or third Rule 3.850 motions

was properly filed, his federal habeas petition would be timely.

       The resolution of this appeal thus turns on whether a successive petition

such as Weekly’s is nonetheless a “properly filed application” under 28 U.S.C.

§2244(d)(2). The courts that have addressed the issue have reached differing

results.

       The phrase “properly filed application” is not defined in the AEDPA itself

and the legislative history sheds little light on its meaning. See Villegas v.

Johnson, 184 F.3d 467, 470 (5th Cir.1999) (citing legislative history). Some courts

have construed the phrase narrowly to mean that the state post-conviction motion

or petition complies with the bare minimum of procedural requirements such as

time and place of filing. On this view, if a prisoner managed to file his state

petition within the applicable time limits and in the right court, his petition would

be “properly filed.” Sometimes, despite the lack of a clear (or any) definition of


                                           5
the phrase “properly filed application,” this construction is justified on the grounds

that the plain meaning of the phrase is so unambiguous as to compel only the

narrow interpretation. See Lovasz v. Vaughn, 134 F.3d 146, 148 (3d

Cir.1998)(“[a]fter all, Congress chose the phrase "a properly filed application," one

into which we do not read any requirement that the application be non- frivolous”);

See also Villegas, 184 F.3d at 470 (stating reluctance to go beyond “plain meaning

of the phrase”). Courts favoring the narrow interpretation also rely on principles of

comity and on the exhaustion requirement to support their interpretation. See id at

472; See also Bennett v. Artuz, 199 F.3d 116 (2nd Cir. 1999).

      Other courts, however, have interpreted the phrase “properly filed” more

broadly, in accord with the purposes of the AEDPA limitations period and the

qualification that state courts must be given the first opportunity to decide state

prisoners’ constitutional claims. For example, in Tinker v. Hanks, 172 F.3d 990,

991 (7th Cir. 1998), the Seventh Circuit held that an application for leave to file a

successive state habeas petition was not a “properly filed application” under the

AEDPA. The reasoning of the Seventh Circuit was that Congress could not have

intended to allow prisoners to extend the limitations period indefinitely by filing

repeated applications for leave. Id. The Court also noted that there was little

reason to worry that the state and federal courts might reach differing results on


                                           6
whether a state petition is “properly filed” because the federal court can, in its

discretion, stay the federal case while the state petition is pending. Id.

      Similarly, the Ninth Circuit has held that a state petition is not “properly

filed” if the petition is dismissed as successive under the state’s procedural rules.

See Dictado v. Ducharme, 189 F3d 889, 892 (9th Cir. 1999). The Court reasoned

that the policy of deferring to state courts weighs in favor of requiring prisoners to

comply with the full range of state procedural rules, including the rule regarding

successive petitions. Id.

      Though this precise issue has not been addressed in this Circuit, the Court

has interpreted the phrase “properly filed” in the context of an untimely state

petition. We held recently that a state petition is not “properly filed” when it fails

to comply with state filing deadlines as applied by the state court. See Webster v.

Moore, No. 99-4201, ___ F.3d ___ ( 11th Cir. 2000,). In Webster, we noted that

the AEDPA demonstrates a concern for federal-state comity and deference to state

determinations of constitutional claims. See Webster at *2-3 (concern for federal-

state comity “militates in favor of requiring compliance with state filing deadlines

in the context of § 2244(d)(2)”).

      Because we are persuaded by the reasoning of the courts that have not

deemed successive state court filings to be “properly filed,” we extend Webster to


                                           7
prohibit tolling in the circumstances of this case. This extension is in accord with

the AEDPA’s purpose of encouraging state court exhaustion, while also not

allowing procedurally defective motions, such as Weekly’s successive motions, to

toll the period for filing a federal habeas action.

                                    CONCLUSION

      Weekly’s second and third motions pursuant to Florida Rule of Criminal

Procedure 3.850 were dismissed as successive petitions, and those dismissals were

affirmed on appeal. It is therefore clear that Weekly failed to comply with the

procedural requirement forbidding successive motions. See Fla. R. Crim P.

3.850(f). His state post-conviction motions were not “properly filed” and there

was no tolling of the one year limitations period. It follows that his federal habeas

petition pursuant to 28 U.S.C. §2254, which was filed on June 25, 1997, was filed

outside the limitations period and is time-barred.

      Thus, for the reasons given in this opinion, we AFFIRM the district court’s

dismissal of Weekly’s habeas petition.




                                            8
BARKETT, Circuit Judge, dissenting:

       I respectfully dissent from the majority’s opinion in this case because I find

the decisions in Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), Villegas v.

Johnson, 184 F.3d 467 (5th Cir. 1999), and Lovasz v. Vaughn, 134 F.3d 146 (3d

Cir. 1998), to be more persuasive than those in Dictado v. Ducharme, 189 F.3d 889

(9th Cir. 1999), and Tinker v. Hanks, 172 F.3d 990 (7th Cir. 1999). In Webster v.

Moore, No. 99-4201, ____ F.3d ____ (11th Cir. 2000), there was no question that

the state petition filed in that case was untimely under state law, and that the state

court did not have to make a determination on the merits of the petition to so hold.

When state courts do in fact have to look at the merits of a petition for

post-conviction relief, it seems to me that their merits determination should have

no bearing on whether the petition was “properly filed” under the AEDPA. To

import consideration of the merits of the petition into this determination seems to

me to be in direct conflict with the plain meaning of the phrase “properly filed” as

it is used in the statute.




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