         Case: 14-10532   Date Filed: 03/30/2015   Page: 1 of 25




                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-10532
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 0:13-cv-62472-WPD



ARTHUR THOMPSON,


                                                         Petitioner-Appellant,


                                versus


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


                                                     Respondents-Appellees.

                     ________________________

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

                           (March 30, 2015)
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Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Arthur Thompson, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred.

Thompson’s original 1991 sentence was wholly vacated and he was resentenced on

October 6, 2011. His new sentence was affirmed on direct appeal on May 1, 2013.

On November 1, 2013, Thompson filed this § 2254 petition. After careful review

of the record and briefs, we conclude Thompson’s § 2254 petition was timely filed.

Thus, we vacate and remand for further proceedings consistent with this opinion.

                               I. BACKGROUND

      To resolve this appeal, we first review in detail the lengthy procedural

history of Thompson’s case.

A.    1991-1993, Convictions, Sentences, and Direct Appeal

      On March 22, 1989, during the night, Thompson entered, uninvited, the

home of Solange Boulianne in Pembroke Park, Florida, to steal money for drugs.

According to the trial evidence, including Thompson’s tape-recorded confession,

the victim Boulinanne woke and discovered Thompson in her home. Thompson

then strangled her to death.

      On July 22, 1991, a Florida jury found Thompson guilty of first-degree

murder, burglary with assault or battery, and robbery. On August 29, 1991, the


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state trial court sentenced Thompson, as a habitual felony offender, to consecutive

sentences of life imprisonment for the murder conviction, life imprisonment for the

burglary conviction, and 30 years’ imprisonment for the robbery conviction. For

his murder conviction, Thompson was required to serve a 25-year statutory

mandatory minimum before becoming eligible for parole. Thompson’s prior

criminal history, that qualified him as a habitual felony offender, included felony

convictions of burglaries of a dwelling, possession of cocaine, and grand theft. 1

He also had prior misdemeanor convictions of resisting arrest, trespassing, and

loitering and prowling.

       Relevant here, the Florida sentencing guidelines scoresheet, prepared in

connection with Thompson’s sentencing, indicates that he received an above-

guidelines sentence (life) for his burglary conviction. The “recommended

sentence” for his burglary conviction was 9 to 12 years and the “permitted

sentence” was 7 to 17 years.

       Thompson directly appealed, raising the sole claim that a pre-trial motion to

suppress his tape-recorded statements was wrongfully denied. On March 17, 1993,

the Florida appellate court summarily affirmed Thompson’s convictions and



       1
        In July 1988, Thompson was convicted of burglary of a dwelling and sentenced to two-
and-a-half-years’ imprisonment. On December 16, 1988, he was released to supervised
community release. He was then discharged from supervised release on February 24, 1989. On
March 22, 1989, he committed the instant murder, burglary, and robbery offenses.
                                              3
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sentences on direct appeal. Thompson v. State, 615 So. 2d 170 (Fla. Dist. Ct. App.

1993) (table).

B.     1995-1999, State Collateral Proceedings

       After his direct appeal, between 1995 and 1999, Thompson sought collateral

relief in the state courts through multiple filings, including two state habeas

petitions and a Florida Rule of Criminal Procedure 3.800 motion to correct an

illegal sentence. All of these collateral filings were ultimately denied.

C.     2000-2001, First § 2254 Proceedings

       On June 22, 2000, Thompson filed his initial § 2254 petition, raising these

claims: (1) the state trial court erred by denying a defense challenge to a venire

member; (2) his Confrontation Clause and due process rights were violated when

the trial court granted the State’s request to perpetuate the testimony of the forensic

pathologist who performed the victim’s autopsy; (3) his due process rights were

violated when the trial court made prejudicial comments to the jury; (4) he

received ineffective assistance of appellate counsel when his lawyer failed to raise

a number of properly preserved issues on appeal; 2 (5) the trial court erred in

admitting his confession, and he received ineffective assistance of counsel when

       2
         In particular, Thompson contended that appellate counsel should have raised the claims
included by trial counsel in a motion for a new trial. Thompson’s motion for a new trial raised
several of the claims included in his § 2254 petition, including Claims 1, 2, and 3 listed above,
and claims that the trial court erred by refusing (1) to delete three highly prejudicial passages of
Thompson’s tape-recorded statements, (2) to grant a judgment of acquittal based on insufficient
evidence, (3) to compel the State to grant defense witness Lisa Giallanza immunity, and (4) to
give the jury a special instruction on voluntary intoxication.
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his appellate attorney inadequately argued this issue on direct appeal; (6) his due

process and equal protection rights were violated when the trial court sentenced

him in excess of the statutory maximum; and (7) in his first state habeas

proceeding, the State improperly moved for rehearing following the state habeas

court’s initial opinion and the state habeas court improperly recalled the mandate

and withdrew its initial opinion.

      Following the State’s response, the magistrate judge issued a report

(“R&R”), recommending that Thompson’s § 2254 petition be denied on the merits.

Some of Thompson’s claims failed to allege a constitutional error cognizable on

federal habeas review. As to his remaining claims, Thompson had not shown that

the Florida courts, in denying relief, had reached a result that was contrary to, or an

unreasonable application of, clearly established federal law.

      On May 31, 2001, overruling Thompson’s objections, the district court

adopted the R&R and denied Thompson’s § 2254 petition. Thompson did not

appeal.

D.    2006-2008, First Resentencing and Direct Appeal

      On September 11, 2006, Thompson filed in the state trial court a Rule

3.800(a) motion to correct an illegal sentence, challenging his burglary and robbery

sentences. Thompson v. State, 987 So. 2d 727, 728 (Fla. Dist. Ct. App. 2008).

Thompson sought relief based on Hale v. State, 630 So. 2d 521 (Fla. 1993), which


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held that habitual felony offender sentences cannot run consecutively to each other

when the offenses occur in a single criminal episode. 3

       Based on Thompson’s Rule 3.800(a) motion, “[t]he trial court deleted the

[habitual felony offender] designation from all three sentences and reduced the 30-

year robbery sentence to 15 years, the statutory maximum sentence for a second-

degree felony without enhancement. Otherwise, the sentences were unchanged.”

Thompson, 987 So. 2d at 728. The three sentences still remained consecutive.

       Thompson appealed, arguing for a de novo resentencing hearing on the basis

that his consecutive life sentence on his burglary conviction was still above his

Florida sentencing guidelines range. Id. On June 25, 2008, the Florida appellate

court reversed and remanded. Id. at 729. The appellate court noted that, at

Thompson’s original sentencing, it was only his designation as a habitual felony

offender that permitted the trial court to sentence him above the guidelines on his

burglary conviction. Id. at 728. Thus, “when the trial court deleted the [habitual

felony offender] designation, there was no justification for a sentence above the

guidelines.” Id. at 729. Accordingly, the Florida appellate court remanded for the

state trial court to conduct a de novo resentencing hearing to consider whether a



       3
         In Hale, the Florida Supreme Court distinguished “statutory sentences in which the
legislature ha[s] included a minimum mandatory sentence, such as the sentences for capital
crimes, from sentences in which there is no minimum mandatory penalty although one may be
provided as an enhancement through the habitual violent offender statute.” Hale, 630 So. 2d at
524.
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sentence above the guidelines was justified for the burglary conviction and, if so,

to give reasons for imposing a departure sentence. Id.

E.    2011-2013, Second State Resentencing and Direct Appeal

      Following the remand, on October 6, 2011, the state trial court resentenced

Thompson and entered multiple orders. The first 2011 resentencing order stated

that “[t]he sentence imposed on 8-29-91 is hereby vacated and set aside.”

      The trial court then entered new sentences as to each conviction, in separate

three-page orders titled “Sentence” that specified the sentence of imprisonment and

special provisions (such as prison credit for time already served). Each “Sentence”

order stated that “the Court having previously entered a judgment in this case on

the defendant now resentences the defendant.”

      The 2011 resentencing orders sentenced Thompson to life imprisonment for

the murder conviction, life imprisonment for the burglary conviction, and 15 years’

imprisonment for the robbery conviction—the same terms of imprisonment

imposed following Thompson’s 2006 Rule 3.800(a) motion. This time, however,

the 2011 resentencing orders stated that the sentences on the burglary and robbery

convictions would run concurrently to each other but consecutively to the sentence

on the murder conviction. The state trial court also prepared a new sentencing

guidelines scoresheet, which noted, as the reason for the upward departure on the

burglary conviction, the fact that Thompson was simultaneously convicted of a


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capital murder offense. Finally, the 2011 resentencing orders also included an

order committing Thompson to the custody of the Florida Department of

Corrections.

      Thompson appealed from his October 6, 2011 resentencing. On May 1,

2013, the Florida appellate court summarily affirmed. Thompson v. State, 113 So.

3d 17 (Fla. Dist. Ct. App. 2013) (table).

F.    2012-2013, Rule 3.850 Motion in State Court

      On February 7, 2012, while his direct appeal from his October 2011

resentencing was pending, Thompson filed in the state trial court a Florida Rule of

Criminal Procedure 3.850 motion for postconviction relief based on newly

discovered evidence. Thompson alleged that newly discovered evidence

demonstrated that the State’s two lead investigators lied at trial and during

depositions concerning their employment histories and disciplinary records.

Thompson argued that, had he been aware of the newly discovered evidence at

trial, he would have proceeded under a defense theory that the investigators

coerced a false confession from him.

      The State responded that Thompson’s Rule 3.850 motion should be denied

because Thompson failed to show that he could not have timely discovered the

evidence through due diligence, as he “relie[d] on facts which have been available

in the public record of the relevant police agency for some twenty . . . years.”


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      On June 20, 2012, the state trial court denied Thompson’s Rule 3.850

motion “for the reasons given in the State’s response.” Thompson appealed. On

March 28, 2013, the Florida appellate court summarily affirmed. Thompson v.

State, 110 So. 3d 467 (Fla. Dist. Ct. App. 2013) (table).

G.    2013-2014, Second § 2254 Proceedings

      On November 1, 2013, Thompson filed the present § 2254 petition, raising

multiple challenges to his convictions and a single claim as to his sentences.

Specifically, Thompson asserted these claims: (1) as shown by newly discovered

evidence, the State violated Brady4 and Giglio 5 by failing to disclose the accurate

employment histories of the two lead investigators, which denied him the Sixth

Amendments rights to confrontation, compulsory process of witnesses, and

effective assistance of counsel; (2) he received ineffective assistance of counsel

when trial counsel failed (a) to move for a judgment of acquittal based on

insufficient evidence and (b) to object to a “stealth entry” jury instruction; and

(3) at sentencing, the trial court violated Apprendi 6 when it imposed an upward

departure based on an “unscored capital murder charge,” a fact not found by a jury.

      A magistrate judge issued an R&R, recommending that Thompson’s § 2254

petition be dismissed. The R&R did not acknowledge Thompson’s 2011
      4
          Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
      5
          Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972).
      6
          Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
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resentencing. The R&R concluded that his current § 2254 petition was both

impermissibly successive and untimely.

      On December 9, 2013, overruling Thompson’s objections, the district court

adopted the R&R in part and dismissed Thompson’s § 2254 petition as untimely.

The district court found (1) that Thompson’s resentencing meant that his current

§ 2254 petition was not “second or successive”; but (2) that his § 2254 petition was

time-barred because, based on Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013) (en

banc), “[t]he Eleventh Circuit now follows a claim by claim approach in

determining timeliness.”

      As to Thompson’s convictions claims, the district court determined that his

convictions became final in 1997 and that more than one year of untolled time

elapsed before Thompson filed his current § 2254 petition in 2013. Thompson had

not advanced a basis for equitable tolling, and he had not shown due diligence in

discovering his alleged newly discovered evidence. In any event, the alleged new

evidence was merely impeaching, did not show a Brady violation, and did not

demonstrate prejudice.

      As to Thompson’s sentencing claim, the district court noted that his 2011

resentencing “[a]rguably . . . re-started the one year statute of limitations, but only

as to that sentencing issue.” The district court did not further discuss Thompson’s

sentencing claim.


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       On January 3, 2014, within 28 days of the district court’s dismissal of his

§ 2254 petition, Thompson filed a Federal Rule of Civil Procedure 60(b) motion

for relief from judgment. Thompson argued that the district court had

misunderstood the procedural history of his case and the effect of his 2011

resentencing on the statute of limitations for a § 2254 petition. He contended that

his entire § 2254 petition was timely with respect to the date when the direct

review of his 2011 resentencing concluded. 7

       On January 14, 2014, the district court denied Thompson’s Rule 60(b)

motion. The district court found (1) that Thompson’s 2011 resentencing “only re-

started the statute of limitations on the Apprendi claim”; and (2) that the Apprendi

claim was meritless. The district court observed that “the reason given by [the

state trial court] for an aggravation above the guidelines (an unscored capital

conviction) was found by the jury” and, “even if the nonhomicide counts were

vacated, Thompson still would have to serve the life sentence on the murder

charge.” The district court again stated that Thompson’s convictions claims were

time-barred. The district court denied Thompson a certificate of appealability

(“COA”).


       7
          Although Thompson labeled his post-judgment motion as a Rule 60(b) motion, it is
arguably more properly construed as a Federal Rule of Civil Procedure 59(e) motion to alter or
amend the judgment. See Finch v. City of Vernon, 845 F.2d 256, 258 (11th Cir. 1988). In any
event, whether construed as a Rule 60(b) or Rule 59(e) motion, Thompson’s motion served to
toll the time to appeal the underlying denial of his § 2254 petition. See Fed R. Civ. P. 59(e);
Fed. R. App. P. 4(a)(4)(A)(iv), (vi).
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      Thompson filed a timely notice of appeal. This Court granted him a COA

on this issue: “Whether the district court erred in dismissing Thompson’s instant

28 U.S.C. § 2254 petition as untimely filed.”

                          II. STANDARD OF REVIEW

      We review de novo the dismissal of a habeas petition as untimely.

Spottsville v. Terry, 476 F.3d 1241, 1243 (11th Cir. 2007).

                                III. DISCUSSION

A.    Statute of Limitations for Habeas Petitions

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

imposes a statute of limitations for all prisoners “in custody pursuant to the

judgment of a State court” filing a federal habeas petition. 28 U.S.C. § 2244(d)(1).

According to the statute, a one-year period of limitations runs “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 State action in violation of the Constitution or laws of the United
      States is removed, if the applicant was 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.
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Id. § 2244(d)(1)(A)-(D).

      The Supreme Court has explained that, for purposes of § 2244(d)(1)(A), the

final judgment means the sentence. Burton v. Stewart, 549 U.S. 147, 156, 127 S.

Ct. 793, 798 (2007). Thus, a state prisoner’s AEDPA limitations period does not

begin to run until both his conviction and sentence become final by the conclusion

of direct review or the expiration of the time for seeking such review. Id. at 156-

57, 127 S. Ct. at 799.

      To understand the application of § 2244(d)(1) to Thompson’s current § 2254

petition, it is necessary to discuss our precedents in Walker v. Crosby, 341 F.3d

1240 (11th Cir. 2003), overruled by Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013)

(en banc), and Ferreira v. Secretary, Department of Corrections, 494 F.3d 1286

(11th Cir. 2007), and how they were affected by our en banc decision in Zack v.

Tucker. We also review the relevant precedents in Magwood v. Patterson, 561

U.S. 320, 130 S. Ct. 2788 (2010), and Insignares v. Secretary, Florida Department

of Corrections, 755 F.3d 1273 (11th Cir. 2014).

B.    Walker v. Crosby

      In Walker, the petitioner, a state prisoner, was convicted and sentenced in

state court in 1990. 341 F.3d at 1241. After an unsuccessful direct appeal and

multiple unsuccessful collateral motions, in 1997, the state trial court granted the

petitioner’s post-conviction motion to correct his sentence. Id. In 1998, the
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petitioner was resentenced. Id. The petitioner directly appealed from his

resentencing and filed various applications for state post-conviction or other

collateral review, all of which were denied. Id. at 1241-42. In 2001, the petitioner

filed a § 2254 petition raising claims as to both his corrected state sentence and his

unaltered state conviction. Id. The district court dismissed the § 2254 petition as

time-barred. Id. at 1242.

      This Court granted a COA on whether individual claims within a single

habeas petition may be reviewed separately for timeliness and whether the district

court properly dismissed the § 2254 petition as untimely. Id. at 1241. Reasoning

that “[§] 2244(d)(1) states the limitation period shall apply to ‘an application for a

writ of habeas corpus,’” this Court held that “[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. at 1245. This Court

acknowledged that this interpretation of § 2244(d)(1) “allow[ed] for the

resurrection of what seem to be time-barred claims tagging along on the coattails

of a timely claim” but concluded that the interpretation was compelled by the plain

language of the statute. Id. at 1247.

      As to the timeliness of the state prisoner’s § 2254 petition, this Court in

Walker concluded that the habeas petition was timely filed under § 2244(d)(1)(A)

with respect to the date on which the petitioner’s resentencing judgment became


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final. Id. at 1246. “[U]nder § 2244(d)(1)(A) the statute of limitations for a habeas

application challenging a resentencing court’s judgment begins to run on the date

the resentencing judgment became final and not the date the original judgment

became final.” Id. The state prisoner’s resentencing judgment did not become

final by the conclusion of direct review until June 1998, after which his properly

filed state collateral motions tolled his AEDPA limitations period. Id. This Court

determined that, with the resentencing judgment and the statutory tolling, the state

prisoner’s 2001 § 2254 petition was filed within the one-year limitations period

provided in § 2244(d)(1). Id.

      Because the petitioner in Walker raised claims challenging both his original

judgment of conviction and his resentencing judgment, this Court did not address

the application of § 2244(d)(1)(A) to a § 2254 petition, following a resentencing,

that includes only claims concerning the original conviction and does not include

any claims based on the corrected sentence. We addressed that issue in Ferreira.

C.    Ferreira v. Secretary, Department of Corrections

      In Ferreira, the petitioner, a state prisoner, was convicted and sentenced in

state court in 1997. 494 F.3d at 1288, 1292. Following his direct appeal, the

petitioner filed an unsuccessful state post-conviction motion. Id. at 1288. Then, in

2002, the petitioner filed another state post-conviction motion to correct his

sentence, which the state court granted. Id. In 2003, the state court resentenced


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the petitioner. Id. Also in 2003, less than two months after his new sentence

became final, the petitioner filed a § 2254 petition that included claims challenging

only his original conviction in 1997 and not his subsequent resentencing. Id. The

district court dismissed the § 2254 petition as untimely. Id.

       On appeal, we considered whether AEDPA’s statute of limitations was

triggered by the petitioner’s original conviction in 1997 or his resentencing in

2003, given that his § 2254 petition challenged only his original 1997 conviction.

Id. at 1292. We held, based on the Supreme Court’s decision in Burton, that

“AEDPA’s statute of limitations begins to run when the judgment pursuant to

which the petitioner is in custody, which is based on both the conviction and the

sentence the petitioner is serving, is final.” Id. at 1293. Thus, this Court indicated,

where a resentencing results in a new judgment, the new judgment restarts the

statute of limitations. See id. at 1292-93. 8

       As to the petitioner in Ferreira, this Court concluded that, when he filed his

2003 § 2254 petition, he was in custody pursuant to the 2003 judgment, which was

based on both his 1997 conviction and the 2003 sentence. Id. at 1292. Therefore,

the 2003 judgment that imprisoned the petitioner “control[led] the statute of

       8
         Of course, not all post-judgment changes or corrections to a sentence result in a new
“judgment” for purposes of § 2244(d)(1)(A). Cf., e.g., Murphy v. United States, 634 F.3d 1303,
1309-14 (11th Cir. 2011) (holding, as to the AEDPA statute of limitations for a federal prisoner’s
motion to vacate in 28 U.S.C. § 2255(f), that a Federal Rule of Criminal Procedure 35(b)
sentence reduction did not change the date when the prisoner’s conviction became final because
a Rule 35(b) reduction does not affect the finality of the judgment of conviction and does not
constitute a resentencing in which an old sentence is invalidated and replaced with a new one).
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limitations for [his] petition because the period begins to run when both the

conviction and sentence are final.” Id. at 1292-93. The petitioner’s § 2254 petition

was timely under AEDPA because it was filed within one year of the 2003

judgment becoming final. Id. at 1293.

D.    Zack v. Tucker

      Zack was decided in 2013, and the State contends Zack “cast into doubt” not

only Walker, but also Ferreira. Thus, we review Zack in great detail.

      In Zack, the petitioner was convicted of first-degree murder, sexual battery,

and robbery, and he was sentenced to death. 704 F.3d at 918. His convictions and

sentence became final in October 2000. Over a year later, in December 2001, the

petitioner filed a state post-conviction motion. Id. While the post-conviction

motion was pending, the Supreme Court decided Atkins v. Virginia, 536 U.S. 304,

122 S. Ct. 2242 (2002), holding that the execution of an intellectually disabled

person violated the Eighth Amendment. Zack, 704 F.3d at 918-19. The petitioner

amended his post-conviction motion to include an Atkins claim. Id. at 919. The

state trial court denied the post-conviction motion and the Florida Supreme Court

affirmed. Id.

      The petitioner then filed a § 2254 petition raising multiple claims, including

the Atkins claim. Id. The district court dismissed all of the non-Atkins claims as

untimely and denied the Atkins claim on the merits. Id. The district court found


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that the petitioner’s non-Atkins claims were untimely with respect to the date when

his judgment became final because, as of “the one-year anniversary of [his]

conviction[s] becoming final, [he] had filed no state or federal application for

collateral review.” Zack v. Crosby, 607 F. Supp. 2d 1291, 1293 (N.D. Fla. 2008).

The petitioner’s Atkins claim was timely because, with statutory tolling, less than

one year passed between the Atkins decision and the filing of his § 2254 petition.

Id. at 1295.

      On appeal, sitting en banc, this Court considered whether § 2244(d)(1)

provides a single statute of limitations that applies to the § 2254 petition as a whole

or whether the timeliness of claims must be evaluated on a claim-by-claim basis.

Zack, 704 F.3d at 919. Notably, Zack did not involve a resentencing or a new

judgment. Rather, Zack concerned whether a state prisoner can resurrect § 2254

claims that are untimely with respect to the date when his state judgment became

final (§ 2244(d)(1)(A)) by piggybacking them on a new claim (Atkins) that is

timely with respect to another trigger in § 2244(d)(1), such as a newly recognized,

retroactively applicable constitutional right (§ 2244(d)(1)(C)). See id. at 925.

      In Zack, the en banc Court held that, in “a multiple trigger date case,” the

statute of limitations in AEDPA applies on a claim-by-claim basis. Id. at 926. The

multiple trigger dates in Zack were: (1) for the petitioner’s non-Atkins claims, one

year from when the judgment became final, as provided by § 2244(d)(1)(A); and


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(2) for the petitioner’s new Atkins claim, one year from the date on which the

Supreme Court initially recognized a new constitutional right, as provided by

§ 2244(d)(1)(C). See id. at 919-20. Thus, the en banc Court overruled Walker to

the extent that it held (1) “that § 2244(d)(1) provides a single statute of limitations

that applies to the application as a whole” and (2) “that individual claims within an

application cannot be reviewed separately for timeliness.” Id. at 926. As to the

petitioner in Zack, the en banc Court affirmed the district court’s judgment

dismissing his non-Atkins claims as time-barred. Id.

      The en banc Court reasoned that (1) the text and structure of § 2244(d)(1)

suggest that it should be applied on a claim-by-claim basis; (2) subsequent

Supreme Court cases had cast doubt on the Walker rule; (3) no sister circuit had

agreed with this Court’s reasoning in Walker or adopted the rule this Court

established in that case; and (4) the Walker rule was inconsistent with Congress’s

intent in enacting AEDPA. Id. at 921-26.

      Relevant here, as to Supreme Court case law, the en banc Court noted that

the Supreme Court had stated, albeit in dicta, that § 2244(d)(1) “‘provides one

means of calculating the limitation with regard to the application as a whole,

§ 2244(d)(1)(A) (date of final judgment), but three other[ means] that require

claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference);

§ 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual


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predicate).’” Id. at 923 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6, 125

S. Ct. 1807, 1813 n.6 (2005)) (internal quotation omitted).

      As to Congressional intent, the en banc Court noted that the Walker rule

frustrated AEDPA’s interest in the finality of state court judgments by allowing a

habeas petitioner to revive otherwise untimely claims by filing a § 2254 petition

based on a state-imposed impediment to filing a claim, a new right that applies

retroactively on collateral review, or the discovery of a new factual predicate for a

new claim. Id. at 925 (“[The Walker interpretation] allows for the resuscitation of

otherwise dormant claims and effectively rewards petitioners for waiting years

after their convictions become final to file federal habeas petitions that mix new

and timely claims with stale and untimely claims.”).

      The en banc Court explained that the Walker court had “stated a broader rule

than was necessary to decide that appeal.” Id. at 921. The en banc Court

determined that the “narrow legal question presented in Walker involved the

meaning of the word ‘judgment’ in subsection 2244(d)(1)(A), and whether the

timely assertion of the challenge to the new sentence revived the claims as to the

original conviction.” Id. Consequently, “[a]ll the Walker panel had to do was

construe whether the petitioner’s limitations period under that subsection began

anew when his corrected sentence became final.” Id.




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       The en banc Court in Zack noted that this Court “decided that narrower

question” in Ferreira, holding there that “the statute of limitations under subsection

2244(d)(1)(A) ‘begins to run from the date both the conviction and the sentence the

petitioner is serving at the time he files his application become final because

judgment is based on both the conviction and the sentence.’” Id. (quoting Ferreira,

494 F.3d at 1293). The en banc Court concluded that, “[i]n the light of Ferreira,

the Walker court reached the right result for the wrong reason. In Walker, the

challenges to both the original conviction and the new sentence were timely

because the limitations period on both sets of claims presented ran from the date

that both the conviction and the sentence the petitioner was serving became final.”

Id. (citing 28 U.S.C. § 2244(d)(1)(A)).9

       In discussing why Walker’s result was right for the wrong reason, the en

banc Court in Zack did not disavow Ferreira and certainly did not overrule

Ferreira.




       9
          There is arguably a circuit split as to this issue. See Prendergast v. Clements, 699 F.3d
1182, 1185-88 (10th Cir. 2012) (holding that a state prisoner’s conviction claims, raised in a
§ 2254 petition that was timely with respect to the prisoner’s resentencing, were not
“resuscitate[d]” by his timely sentencing claims and thus were time-barred); Bachman v. Bagley,
487 F.3d 979, 980-81, 982-85 (6th Cir. 2007) (holding, as to a state prisoner’s § 2254 petition
filed following a post-conviction proceeding in which the prisoner was designated a “sexual
predator” based on a change in Ohio’s sex offender registration law, that the sexual-predator
designation started a new statute of limitations period only as to challenges to that designation,
not as to challenges to his convictions).
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E.    Magwood and Insignares

      Two other recent decisions bear note before we analyze Thompson’s § 2254

petition. The Supreme Court in Magwood held that, “where . . . there is a new

judgment intervening between two habeas petitions, an application challenging the

resulting new judgment is not second or successive” for purposes of the restrictions

on second or successive habeas petitions in 28 U.S.C. § 2244(b). 561 U.S. at 341-

42, 130 S. Ct. at 2802 (citation and quotation omitted). In Magwood, the state

prisoner’s second habeas petition challenged only his new sentence, and the

Supreme Court expressly left open the question of whether a subsequent petition

challenging the undisturbed conviction would be second or successive after the

State imposes only a new sentence. Id. at 342, 130 S. Ct. at 2802-03.

      This Court decided that question in Insignares, holding that, “when a habeas

petition is the first to challenge a new judgment, it is not ‘second or successive,’

regardless of whether its claims challenge the sentence or the underlying

conviction.” 755 F.3d at 1281 (emphasis added). This Court noted, however, that

“[w]hile such a petition is not subject to AEDPA’s restrictions on ‘second or

successive’ petitions, AEDPA’s other limitations still apply,” including for

instance procedural-default rules and, as to previously decided claims, the law-of-

the-case doctrine. See id. at 1281 n.9.




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F.    Timeliness of Thompson’s Current § 2254 Petition

      Turning to Thompson’s current § 2254 petition, we conclude that, based on

our binding precedent in Ferreira, the district court erred in dismissing the petition

as untimely under § 2244(d)(1). As an initial matter, we conclude that

Thompson’s 2011 resentencing resulted in a new judgment. The 2011

resentencing orders entered by the state trial court in this case, following a de novo

resentencing hearing, expressly vacated Thompson’s 1991 sentences and imposed

new sentences. Although Thompson’s resentencing did not alter his original

convictions, the 2011 judgment, for the purposes of § 2244(d)(1)(A), comprised

both his convictions and sentences. See Burton, 549 U.S. at 156-57, 127 S. Ct. at

798-99; Ferreira, 494 F.3d at 1292-93.

      Thus, when Thompson filed his 2013 § 2254 petition, he was in state

custody pursuant to the new 2011 judgment entered upon his resentencing. The

new 2011 judgment triggered a new statute of limitations period, which began to

run when the 2011 judgment became final. See Ferreira, 494 F.3d at 1292-93.

Thompson directly appealed from the 2011 judgment, and the Florida appellate

court affirmed on May 1, 2013. Accordingly, Thompson’s § 2254 petition, filed

on November 1, 2013, was filed within one year of the 2011 judgment becoming

final at the conclusion of direct review. See 28 U.S.C. § 2244(d)(1)(A); Burton,

549 U.S. at 156-57, 127 S. Ct. at 799.


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      The district court below, as well as the State on appeal, relied on Zack to

reason that this Court “now follows a claim by claim approach in determining

timeliness” under § 2244(d)(1). Thus, the district court reasoned, Thompson’s

“resentencing would have triggered a new one year statute of limitations, but only

on the sentencing issues involved at that resentencing.” However, Zack is

materially distinguishable from this case. Critically, Zack did not involve a new

judgment entered upon a resentencing. Rather, Zack concerned a petitioner who

attempted to raise claims in a § 2254 petition that were untimely with respect to

when his judgment became final by piggybacking them on a new Atkins claim

based on a newly recognized Supreme Court right under § 2244(d)(1)(C). See

Zack, 704 F.3d at 919. The en banc Court in Zack held that, in a multiple trigger

date case—when separate claims have different trigger dates for the running of the

statute of limitations—the statute of limitations in AEDPA applies on a claim-by-

claim basis. Zack, 704 F.3d at 926.

      Unlike the petitioner in Zack, all of Thompson’s claims relate to a single

judgment—a judgment that is based on both Thompson’s convictions and his

sentences—that became final less than one year before he filed his § 2254 petition.

Thus, the statute of limitations for Thompson’s petition was provided entirely by

§ 2244(d)(1)(A), running from a single trigger date when the 2011 judgment

became final.


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       Notably, Thompson’s § 2254 petition is not a “multiple trigger date case”

within the meaning of Zack. See id. at 926. Although Thompson alleged claims

based on newly discovered factual predicates, his § 2254 petition was timely with

respect to the date when the judgment pursuant to which he was in custody became

final, and thus, his statute of limitations is properly calculated under only

§ 2244(d)(1)(A). See Ferreira, 494 F.3d at 1292-93.10

       For the above reasons, and based on our binding precedent in Ferreira, we

vacate and remand the district court’s dismissal of Thompson’s § 2254 petition as

time-barred for further proceedings consistent with this opinion. 11 Although we

conclude that Thompson’s § 2254 petition is not time-barred, nothing herein

should preclude the district court from evaluating whether there are other

procedural hurdles that Thompson must overcome. See Insignares, 755 F.3d at

1281 n.9.

       VACATED and REMANDED.




       10
         We do not consider the State’s arguments that Thompson’s claims all fail on the merits
and that his § 2254 petition should be dismissed in part as second or successive with respect to
his convictions claims, as these issues are not within the scope of the COA. See Murray v.
United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that, “in an appeal brought by an
unsuccessful habeas petitioner, appellate review is limited to the issues specified in the COA”).
       11
          In its response brief, the State requests that this Court sit en banc to affirm the decision
of the district court and “recede completely from Walker and other prior precedent.” Here we
follow existing Eleventh Circuit precedent in Ferreira as best we can. Of course, nothing herein
precludes the State from subsequently filing a petition for rehearing en banc in accordance with
Federal Rule of Appellate Procedure 35 and Eleventh Circuit Rules 35-1 and 35-5.
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