                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 June 30, 2006
                               No. 05-14341                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                 D. C. Docket No. 04-00416-CV-3-MCR-EMT

JOSEPH SYKOSKY,



                                                             Petitioner-Appellant,

                                     versus

JAMES V. CROSBY,

                                                            Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                (June 30, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Joseph Sykosky, a state prisoner proceeding pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2254 petition, which attacked the validity of

his state convictions, as untimely. Sykosky argued that he was entitled to statutory

tolling for the time during which a Fla. R. Crim. P. 3.850 motion, which the state

court ultimately dismissed as untimely, was pending. The district court rejected

this contention, citing to Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 161

L. Ed. 2d 669 (2005) for the premise that an untimely state court motion is not

“properly filed” for the purposes of 28 U.S.C. § 2244(d)(2). We granted Sykosky

a certificate of appealability on the following issue:

      Whether the district court erred by finding that the appellant was not
      entitled to statutory tolling for the time during which his September
      18, 2003 Fla.R.Crim.P. 3.850 motion was pending in state court,
      pursuant to Delancy v. Fla. Dep’t of Corrs., 246 F.3d 1328, 1331
      (11th Cir. 2001)?

For the reasons stated below, we answer that question in the negative.

                                 I. BACKGROUND

      In 1996, Sykosky was convicted in Florida state court on two counts of first-

degree murder and two counts of aggravated child abuse, and his convictions and

sentences were affirmed on direct appeal. See Sykosky v. State, 705 So. 2d 903

(Fla. 1st DCA 1998) (per curiam) (table case). Over the next 6 years, he filed a

number of motions in state court for postconviction relief, including a June 19,

2003, motion under Fla. R. Crim. P. 3.800 to correct an illegal sentence. On July



                                           2
31, 2003, the state trial court granted the motion in part, vacating Sykosky’s

convictions and sentences on the aggravated child abuse counts because “a

defendant may not be convicted and sentenced for both felony murder and the

underlying offense of Aggravated Child Abuse.” On September 18, 2003,

Sykosky filed a motion for postconviction relief under Fla. R. Crim. P. 3.850.1 He

argued that, given the recent vacatur of his aggravated child abuse convictions and

sentences, there was “no legal basis” to support his convictions and sentences for

first degree felony murder. Rule 3.850 states in relevant part:

       (b) Time Limitations. A motion to vacate a sentence that exceeds the
       limits provided by law may be filed at any time. No other motion
       shall be filed or considered pursuant to this rule if filed more than 2
       years after the judgment and sentence become final in a noncapital
       case or more than 1 year after the judgment and sentence become final
       in a capital case in which a death sentence has been imposed unless it
       alleges that

               (1) the facts on which the claim is predicated were unknown to
               the movant or the movant’s attorney and could not have been
               ascertained by the exercise of due diligence . . . .

Fla. R. Crim. P. 3.850(b). Sykosky argued that his Rule 3.850 motion, though

made outside the normal time limits, satisfied Rule 3.850(b)(1) because the recent

vacatur of his aggravated child abuse convictions and sentences was “newly


       1
        This was Sykosky’s second Rule 3.850 motion. The denial of his first Rule 3.850 motion
(made on different grounds) was initially reversed, see Sykosky v. State, 770 So. 2d 207 (Fla. 1st
DCA 2000) (per curiam), but the motion was denied again on remand and the state appellate court
affirmed. See Sykosky v. State, 827 So. 2d 984 (Fla. 1st DCA 2002) (per curiam) (table case).

                                                3
discovered evidence.” The state trial court dismissed the Rule 3.850 motion as

untimely, finding that Sykosky’s claim that his felony murder convictions and

sentences were “invalid and/or illegal in that no proof of an underlying felony

exists is not newly discovered evidence pursuant to [Rule 3.850(b)].” The state

appellate court affirmed without opinion in March of 2004, and the Supreme Court

denied certiorari. See Sykosky v. State, 871 So. 2d 215 (Fla. 1st DCA 2004) (per

curiam) (table case), cert. denied, 543 U.S. 846, 125 S. Ct. 291, 160 L. Ed. 2d 75

(2004).

      After Sykosky filed his § 2254 petition in federal district court, the State

moved to dismiss the petition as untimely under 28 U.S.C. § 2244(d). The district

court, following the recommendation of a magistrate judge, agreed. The court held

that, under the Supreme Court’s recent decision in Pace, Sykosky’s Rule 3.850

motion was not “properly filed” for purposes of tolling AEDPA’s statute of

limitations, see 28 U.S.C. § 2244(d)(2), because the motion had been dismissed in

state court as untimely. See Pace, 544 U.S. at 414, 125 S. Ct. at 1812 (“When a

postconviction petition is untimely under state law, ‘that [is] the end of the matter’

for purposes of § 2244(d)(2).”) (quoting Carey v. Saffold, 536 U.S. 214, 226, 122

S. Ct. 2134, 2141, 153 L. Ed. 2d 260 (2002)).




                                           4
                             II. STANDARD OF REVIEW

       A district court’s decision to dismiss a petition for writ of habeas corpus is

reviewed de novo, but “the district court’s determination of the relevant facts will

be reversed only if clearly erroneous.” Drew v. Dep’t of Corr., 297 F.3d 1278,

1283 (11th Cir. 2002).

                                   III. DISCUSSION

       The habeas corpus petitions of state prisoners are subject to a one-year

statute of limitations. 28 U.S.C. § 2244(d)(1).2 This period is tolled at any time

during which a “properly filed application for State post-conviction relief or other

collateral review with respect to the pertinent judgment or claim is pending.” 28

U.S.C. § 2244(d)(2) (emphasis added). On appeal, Sykosky concedes that his

§ 2254 habeas petition is time-barred unless we hold that his Rule 3.850 motion

satisfied the requirements of § 2244(d)(2), and thereby tolled AEDPA’s statute of

limitations.

       A.      “Properly Filed” and Rule 3.850

       Sykosky contends that, even though his Rule 3.850 motion was held to be

untimely in state court, it was nevertheless “properly filed” for purposes of



       2
        The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this case
because Sykosky filed his § 2254 petition after AEDPA’s effective date. See Wade v. Battle, 379
F.3d 1254, 1259 (11th Cir. 2004) (per curiam).

                                              5
§ 2244(d)(2), because its delivery and acceptance were in compliance with the

applicable laws and rules governing filings. See Artuz v. Bennett, 531 U.S. 4, 8,

121 S. Ct. 361, 364, 148 L. Ed. 2d 213 (2000). He points to our decision in

Delancy v. Florida Dep’t of Corr., 246 F.3d 1328 (11th Cir. 2001) (per curiam),

which addressed the meaning of “properly filed” in the context of Rule 3.800 and

3.850 motions. There we noted that, in Artuz, the Supreme Court explained that

the question of whether an application was properly filed was “quite separate”

from the question of whether the claims contained in the application were

“meritorious and free of procedural bar.” Id. at 1330 (quoting Artuz, 531 U.S. at 9,

121 S. Ct. at 364). Thus, we held, the district court erred in looking beyond the

face of prisoner Delancy’s Rule 3.800 motion when determining whether it was

“properly filed” for purposes of tolling AEDPA’s statute of limitations under

§ 2244(d)(2). Id. The motion was “properly filed,” we found, because it met state

procedural and filing requirements on its face. Id. at 1330-31. Under the

circumstances of the case, however, Delancy’s habeas petition was still untimely

unless AEDPA’s statute of limitations was also tolled during the pendency of his

Rule 3.850 motion. See id. at 1331. Delancy filed his Rule 3.850 motion outside

the normal two-year statute of limitations, but alleged that it was based on newly

discovered evidence. See id. We stated:



                                          6
      Delancy argues that his motion did allege that newly discovered
      evidence rendered his conviction unlawful. While the claims raised in
      his Rule 3.850 motion may have no merit, the question for purposes of
      this appeal is whether the motion is, within the meaning of 28 U.S.C.
      § 2244(d)(2), “a properly filed motion for state post-conviction” relief
      under that section. Under Artuz, an application is “properly filed”
      when its delivery and acceptance “are in compliance with the
      applicable laws and rules governing filings.” Because Rule 3.850
      requires only that the motion allege that facts “were unknown to the
      movant or the movant’s attorney and could not have been ascertained
      by the exercise of due diligence” we find that if Delancy’s Rule 3.850
      motion in fact alleges “newly discovered evidence,” it was properly
      filed.

Id. (citations omitted). We held that Delancy met this requirement, and therefore

reversed the district court’s dismissal of his habeas petition as time-barred. See id.

at 1331-32; cf. Drew, 297 F.3d at 1285 (“We addressed the question of exceptions

in Delancy, and held that an untimely Rule 3.850 motion would be deemed

properly filed if it alleged facts that would merit an exception from the timely

filing requirement.”).

      Although Sykosky compares his case to Delancy, the State contends that

Delancy is inapplicable, because Sykosky “did not allege facts to support a newly

discovered evidence claim” in his Rule 3.850 motion. According to the State, the

then-recent vacatur of Sykosky’s aggravated child abuse convictions and sentences

is not a fact that would probably support an acquittal on the charged offenses of

first degree felony murder. See Kight v. State, 784 So. 2d 396, 401 (Fla. 2001) (per



                                           7
curiam). This argument, however, ultimately attacks Sykosky’s motion on the

merits. Delancy indicates that we should focus on what Sykosky alleges, not

whether those allegations ultimately have merit. See Delancy, 264 F.3d at 1331;

Drew, 297 F.3d at 1285 (“Drew’s third 3.850 motion would have been properly

filed despite its untimeliness if it had alleged facts that would trigger any of the

three exceptions set forth in the Florida statute . . . .”) (emphasis added).

Sykosky’s Rule 3.850 motion claims that his convictions and sentences for first

degree felony murder are invalid and/or illegal because there is no proof of an

underlying felony. In support of this claim he alleges, inter alia, facts about the

vacatur of his convictions and sentences for the underlying felony of aggravated

child abuse. We need not resolve whether these allegations satisfy Delancy,

however, because even if they do the Supreme Court’s ruling in Pace v.

DiGuglielmo leads us to conclude that Sykosky’s Rule 3.850 motion was not

“properly filed” under § 2244(d)(2).

      B.     Pace v. DiGuglielmo

      In addition to arguing that Sykosky did not really allege facts implicating

Rule 3.850(b)(1), the State contends–and the district court agreed–that Pace

requires us to consider Sykosky’s Rule 3.850 motion not “properly filed” for

purposes of § 2244(d)(2). Pace, which postdates Delancy and Drew, addresses the



                                            8
question the Supreme Court reserved in Artuz: “whether the existence of certain

exceptions to a timely filing requirement can prevent a late application from being

considered improperly filed.” Pace, 544 U.S. at 413, 125 S. Ct. at 1811 (quoting

Artuz, 531 U.S. at 8 n.2, 121 S. Ct. at 364 n.2).

      In Pace, state prisoner John Pace filed a petition for postconviction relief

under the Pennsylvania Post Conviction Relief Act (“PCRA”), which had been

amended to include a statue of limitations with several exceptions, including one

applicable when “new facts arise that could not have been discovered through due

diligence.” Id. at 410, 125 S. Ct. at 1810. The state courts determined that Pace’s

petition was untimely, because it was filed outside the PCRA statute of limitations

and Pace “had neither alleged nor proven” that he fell within any of the listed

exceptions. Id. at 411, 125 S. Ct. at 1810-11. When the timeliness of Pace’s

subsequent habeas petition in federal district court became an issue, the district

court held that the state courts’ rejection of Pace’s PCRA petition as untimely did

not prevent it from being “properly filed” for purposes of tolling AEDPA’s statute

of limitations under § 2244(d)(2). Id. at 411-12, 125 S. Ct. at 1811. The Third

Circuit reversed, holding that the PCRA time limitations constituted a “condition

to filing,” and that “when a state court deems a petition untimely, it is not ‘properly

filed.’” Id. at 412, 125 S. Ct. at 1811.



                                           9
      The Supreme Court affirmed the Third Circuit’s judgment. Id. at 413, 125

S. Ct. at 1811. Under the common understanding of the phrase “properly filed,”

the Court explained, “a petition filed after a time limit, and which does not fit

within any exceptions to that limit, is no more ‘properly filed’ than a petition filed

after a time limit that permits no exception.” Id. at 413, 125 S. Ct. at 1812.

Otherwise “a state prisoner could toll [AEDPA’s] statute of limitations at will

simply by filing untimely state postconviction petitions,” which would be contrary

to the purpose of AEDPA and “open the door to abusive delay.” Id. “When a

postconviction petition is untimely under state law,” the Court stated, “‘that [is] the

end of the matter’ for purposes of § 2244(d)(2).” Id. at 414, 125 S. Ct. at 1812

(quoting Saffold, 536 U.S. at 226, 122 S. Ct. at 2141). The Court concluded:

“[W]e hold that time limits, no matter their form, are ‘filing’ conditions. Because

the state court rejected [Pace’s] PCRA petition as untimely, it was not ‘properly

filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).” Id. at 417,

125 S. Ct. at 1814.

      Sykosky contends Pace merely clarified that the phrase “properly filed”

denotes compliance with procedural filing requirements “that must be satisfied

before a state court will allow a motion to be filed and accorded some level of

judicial review.” In Pace itself, however, the Supreme Court rejected this kind of



                                           10
characterization as inconsistent with Artuz, where the Court “explained that

jurisdictional matters and fee payments, both of which often necessitate judicial

scrutiny, are ‘condition[s] to filing.’” Id. at 414, 125 S. Ct. at 1812 (citation

omitted). The Court added: “We fail to see how timeliness is any less a ‘filing’

requirement than the mechanical rules that are enforceable by clerks, if such rules

exist.” Id. at 414-15, 125 S. Ct. at 1812.

      Sykosky also contends that Pace is distinguishable, because Pace “neither

alleged nor prove[d]” that he fell within an exception to the state time limits,

whereas Sykosky did allege that he fell within an exception. We find this

distinction unavailing because, like the Supreme Court in Pace, we have been

presented with a state court determination that the prisoner’s postconviction

petition was untimely under state law, and we give deference to such

determinations. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (per

curiam). Indeed, in Pace the Supreme Court stated that Pace’s PCRA petition did

not entitle him to statutory tolling “[b]ecause the state court rejected [the] PCRA

petition as untimely,” not because Pace had failed to make allegations about

timeliness in the petition. Pace, 544 U.S. at 417, 125 S. Ct. at 1814 (emphasis

added). Here, the state trial court rejected Sykosky’s claim of newly discovered

evidence and dismissed his Rule 3.850 motion “for the reason that the Motion is



                                             11
untimely filed pursuant to Rule 3.850(b).” (emphasis added). The state appellate

court affirmed without opinion. In other words, the state courts determined that

Sykosky’s motion was “filed after a time limit” and “[did] not fit within any

exceptions to that limit.” Id. at 413, 125 S. Ct. at 1812. We therefore defer to the

determination of the state courts, and “that [is] the end of the matter” for purposes

of § 2244(d)(2). Id. at 414, 125 S. Ct. at 1812 (internal quotes omitted).3

       To the extent that Delancy and Drew can be read to suggest that time limits

are not filing conditions, or that a Rule 3.850 motion which has been dismissed as

untimely in state court may nevertheless have been “properly filed” for purposes of

§ 2244(d)(2), they conflict with the Supreme Court’s decision in Pace and must be

disregarded. See In re Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000) (per

curiam).

                                    IV. CONCLUSION

       Because Sykosky’s Rule 3.850 motion was untimely under state law, it was

not “properly filed” for purposes of § 2244(d)(2) and did not toll AEDPA’s statute

of limitations. Accordingly, the district court did not err when it determined that



       3
         “[A] rule governing filings must be ‘firmly established and regularly followed’ before
noncompliance will render a petition improperly filed for purposes of AEDPA’s tolling provision.”
See Siebert v. Campbell, 334 F.3d 1018, 1025 (11th Cir. 2003) (per curiam) (citation omitted).
Sykosky makes no claim that Rule 3.850 was not “firmly established and regularly followed” at the
time it was applied to his postconviction proceedings.

                                               12
Sykosky was not entitled to statutory tolling for the time during which his Rule

3.850 motion was pending in state court.

      AFFIRMED.




                                           13
