           Case: 16-11239    Date Filed: 11/16/2017   Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11239
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:13-cv-00837-MSS-TGW



DAVID LEE GREEN,

                                                           Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (November 16, 2017)

Before MARCUS, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Petitioner David Green, a Florida prisoner, appeals the district court’s

dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254. The district court dismissed Petitioner’s § 2254 petition as untimely after

concluding that his motion for reduction of sentence under Florida Rule of

Criminal Procedure 3.800(c) did not toll the Antiterrorism and Effective Death

Penalty Act’s (“AEDPA”) one-year statute of limitations. While Petitioner’s

appeal was pending in our Court, we issued Rogers v. Secretary, Department of

Corrections, 855 F.3d 1274, 1278–79 (11th Cir. 2017), in which we held that a

Rule 3.800(c) motion tolls the AEDPA’s one-year statute of limitations. In light of

our decision in Rogers, we conclude that the district court erred by determining

that Petitioner’s § 2254 petition was time-barred. We reverse the district court’s

dismissal of Petitioner’s federal habeas petition and remand for further

proceedings.

I.    BACKGROUND

      In 2002, a jury found Petitioner guilty of solicitation to commit murder in

the first degree. Petitioner was sentenced to 30 years’ imprisonment. His

conviction and sentence were affirmed on June 6, 2003.




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       On August 18, 2003, Petitioner filed a Rule 3.800(c) motion to reduce or

modify his sentence. 1 The Florida trial court denied Petitioner’s motion on

October 26, 2004. Petitioner filed a petition for certiorari with the Florida

appellate court, which was dismissed on July 8, 2005.

       In the meantime, on June 9, 2005, Petitioner filed a motion for state post-

conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, in which

he raised several claims related to ineffective assistance of counsel. After the

Florida trial court denied Petitioner’s motion, the Florida appellate court reversed

and remanded one claim back to the trial court. The Florida trial court denied that

claim on April 1, 2011. The Florida appellate court affirmed, and the mandate

issued on November 16, 2012.

       On April 2, 2013, Petitioner filed his § 2254 petition in federal district court.

The State responded that Petitioner’s habeas petition was untimely, as it was filed

outside of the one-year statute of limitations. Specifically, the State argued that

Petitioner’s Rule 3.800(c) motion did not toll the statute of limitations.

       Finding the State’s argument persuasive, the district court dismissed

Petitioner’s § 2254 petition as time-barred. The district court explained that


1
   In its response, the State asserted that it did not have access to a copy of Petitioner’s 3.800(c)
motion. However, the State did not challenge the assertion that the Rule 3.800(c) motion was
filed on August 18, 2003, and, in fact, appears to concede that the motion was filed on that date.
Indeed, the State asserts in its brief on appeal that it accepts the description of the course of
proceedings as stated in Petitioner’s initial brief—which provides in relevant part that
Petitioner’s Rule 3.800(c) motion was filed on August 18, 2003.
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because Petitioner’s conviction became final on September 4, 2003, without any

tolling motions, the one-year statute of limitations under § 2244(d)(1)(A) expired

on September 7, 2004. 2 In particular, the district court concluded that Petitioner’s

Rule 3.800(c) motion did not toll the limitations period. Accordingly, the district

court dismissed the habeas petition.

       A member of this Court issued Petitioner a certificate of appealability on the

following issue:

       Whether [Petitioner’s] Fla. R. Crim. P. 3.800(c) motion to reduce his
       sentence tolled the statute of limitations, such that the District Court
       erred when it dismissed his 28 U.S.C. § 2254 petition for a writ of
       habeas corpus as untimely.

II.    DISCUSSION

       We review de novo the district court’s determination that a petition for

federal habeas corpus relief is time-barred under 28 U.S.C. § 2244(d). Steed v.

Head, 219 F.3d 1298, 1300 (11th Cir. 2000).

       The AEDPA imposes a one-year period of limitation on applications for a

writ of habeas corpus by state prisoners. 28 U.S.C. § 2244(d)(1). The one-year

period begins to run from the latest of four triggering events, including “the date on

which the judgment became final by the conclusion of direct review or the

2
  Because September 4, 2004, fell on a Saturday and September 6, 2004, was a federal holiday,
the expiration of the one-year statute of limitations was the following Tuesday: September 7,
2004. See Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day [of the period] is a Saturday, Sunday, or
legal holiday, the period continues to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.”).
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expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). However,

section 2244(d)(2) 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.” Id. § 2244(d)(2).

      Petitioner’s conviction became final on September 4, 2003, the date on

which the 90-day period for filing a petition for certiorari with the United States

Supreme Court expired. See Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235, 1236–

37 (11th Cir. 2004) (concluding that a state prisoner’s conviction became “final”

for purposes of § 2244(d)(1)(A) on the date the 90-day period for filing a certiorari

petition in the U.S. Supreme Court expired); Bond v. Moore, 309 F.3d 770, 773–74

(11th Cir. 2002) (same). Without tolling, Petitioner’s one-year limitations period

expired on September 7, 2004. See 28 U.S.C. 2244(d)(1)(A). Petitioner filed his

Rule 3.800(c) motion on August 18, 2003, before his conviction became final and

prior to the expiration of the one-year limitation period. It is undisputed that if

Petitioner’s Rule 3.800(c) motion tolled the statute of limitations, his § 2254

petition was timely filed. Indeed, the district court stated that Petitioner’s “2254

petition was filed within the one-year limitation if both the Rule 3.800(c) and the

Rule 3.850 proceedings tolled the limitation.”




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        Relying on our decision in Alexander v. Secretary, Department of

Corrections, 523 F.3d 1291 (11th Cir. 2008), however, the district court

determined that Petitioner’s Rule 3.800(c) motion did not toll the one-year statute

of limitations. Our decision in Alexander held that a Rule 3.800(c) motion is not

“an application for State post-conviction or other collateral review with respect to

the pertinent judgment” because it does not attack the legality of a sentence.

Alexander, 523 F.3d at 1297–98. Because such a motion was not an application

for state post-conviction or other collateral review, we concluded that a Rule

3.800(c) motion does not toll the AEDPA’s one-year statute of limitations. Id. at

1298.

        Following our decision in Alexander, the Supreme Court issued Wall v.

Kholi, 562 U.S. 545 (2011), in which it held that a motion to reduce a sentence

under Rhode Island Rule of Criminal Procedure 35(a) is an application for

collateral review that tolls the AEDPA’s limitations period. Kholi, 562 U.S. at

553–54, 556. In so holding, the Supreme Court explained that the term collateral

review refers to a “judicial reexamination of a judgment or claim in a proceeding

outside of the direct review process.” Id. at 553.

        After the filing of Petitioner’s initial brief, we issued our decision in Rogers,

where we considered whether the Supreme Court’s decision in Kholi abrogated

Alexander. See Rogers, 855 F.3d at 1277–78. We concluded that it did because


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Kholi made clear that an application for collateral review “need not challenge the

legality of a sentence.” Id. at 1277–78. We determined that a Rule 3.800(c)

motion fell within the Supreme Court’s definition of an application for collateral

review because it is a “judicial reexamination of a judgment or claim in a

proceeding outside of the direct review process.” Id. at 1275, 1277–79. We thus

held that a Rule 3.800(c) motion tolls the limitation period under § 2244(d)(1). Id.

at 1278–79.

      In light of our decision in Rogers, the district court erred by

determining that Petitioner’s Rule 3.800(c) motion did not toll the AEDPA’s

one-year statute of limitations. See Rogers, 855 F.3d at 1277–79; see also

Wright v. Sec’y for Dept. of Corr., 278 F.3d 1245, 1259 (11th Cir. 2002)

(explaining that we are bound to follow our prior panel precedent).

Petitioner’s 3.800(c) motion was filed on August 18, 2003, before his

conviction became final, and his Rule 3.850 motion was filed while his Rule

3.800(c) motion was still pending. Because both motions tolled the statute

of limitations, the one-year limitations period did not begin to run until the

conclusion of Petitioner’s Rule 3.850 proceedings on November 16, 2012.

See Rogers, 853 F.3d at 1277–79; Cadet v. Fla. Dep’t of Corr., 853 F.3d

1216, 1219 (11th Cir. 2017) (indicating that a Rule 3.850 motion sufficiently

tolls the AEDPA’s statute of limitations). Because the limitations period did


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not expire until November 18, 2013, 3 Petitioner’s § 2254 petition filed on

April 2, 2013, was timely. Accordingly, we reverse the district court’s

dismissal of Petitioner’s § 2254 petition as time-barred and remand for

further proceedings.

       REVERSED AND REMANDED.




3
  This date accounts for the fact that November 16, 2013, fell on a Saturday. See Fed. R. Civ. P.
6(a)(1)(A), (C).
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