                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              March 17, 2006
                               No. 05-13059
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 02-00024-CV-T-27-TGW

THOMAS MARTIN BISMARK,


                                                            Petitioner-Appellant,

                                    versus

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

                                                         Respondents-Appellees,

                         ________________________

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

                               (March 17, 2006)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Florida prisoner Thomas M. Bismark appeals the district court’s denial of
his 28 U.S.C. § 2254 petition for habeas relief. Bismark asserts the district court

erred in determining his habeas petition was time-barred because it was filed more

than 365 days after his direct appeal became final. The district court did not err,

and we affirm.

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

habeas corpus relief is time-barred under 28 U.S.C. § 2244(d). Bond v. Moore, 309

F.3d 770, 772 (11th Cir. 2002). “A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court,” and that period runs from “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)(A). “The 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” § 2244(d)’s one-year limitation period. 28 U.S.C. § 2244(d)(2).

      An application for post-conviction relief “is ‘properly filed’ when its

delivery and acceptance are in compliance with the applicable laws and rules

governing filings,” including “the form of the document, the time limits upon its

delivery, the court and office in which it must be lodged, and the requisite filing

fee.” Artuz v. Bennett, 121 S. Ct. 361, 364 (2000) (emphasis in original). A state



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procedural rule, including a jurisdictional rule, that is “firmly established and

regularly followed” will serve as the basis for a procedural bar in federal habeas

proceedings for purposes of evaluating whether the running of the statute of

limitations period is tolled. Hurth v. Mitchem, 400 F.3d 857, 860 (11th Cir. 2005);

see also Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (2005) (clarifying when

conditions for filing a state post-conviction petition are not met, the state petition is

not “properly filed” for purposes of invoking the tolling provision of the

limitations period under § 2244(d)(2)).

      “Under Florida law, a judgment against a criminal defendant becomes final

upon issuance of the mandate on his direct appeal.” Tinker v. Moore, 255

F.3d 1331, 1333 (11th Cir. 2001). We have held because a habeas petitioner is

entitled to file a petition for a writ of certiorari in the United States Supreme Court

within 90 days after the entry of judgment against him by the state supreme court,

the § 2244(d) limitations period does not begin to run “until this 90-day window

ha[s] expired.” Bond, 309 F.3d at 774. Florida law provides in an appeal from the

state appellate court’s affirmance of a conviction, a mere per curiam affirmance is

not reviewable by the Florida Supreme Court. See Jenkins v. State, 385 So. 2d

1356, 1359 (Fla. 1980); Hobbie v. Unemployment Appeals Comm’n of Florida, 107

S. Ct. 1046, 1048 n.4 (1987) (acknowledging “[u]nder Florida law, a per curiam



                                            3
affirmance issued without opinion cannot be appealed to the State Supreme Court”

such that the petitioner sought review directly in the Supreme Court).

      Computation of time periods under the federal rules excludes “the day of the

act, event, or default from which the designated period of time begins to run.” Fed.

R. Civ. P. 6(a). Additionally, “[t]he last day of the period so computed shall be

included, unless it is a Saturday, a Sunday, or a legal holiday.” Id. December 25,

Christmas day, is a “legal holiday.” Id.

      Here, the record shows that Bismark’s 365-day limitation period to file a

§ 2254 petition began to run on August 26, 1999, 90 days after May 28, 1999, the

date his judgment of conviction became final by the conclusion of direct review.

This first day, August 26, 1999, was not included as an additional day in the

limitation period. Thus, for purposes of computation of time under the federal

rules, 172 days elapsed between August 26, 1999, and February 14, 2000, which is

when Bismark filed his Florida Rule of Criminal Procedure 3.850 motion for

post-conviction relief and tolled the running of the period.

      The limitation period remained tolled until the state appellate court issued its

mandate affirming the denial of the Rule 3.850 motion on June 15, 2001, at which

time the limitations period began to run with 193 days remaining. Bismark,

therefore, had until December 25, 2001, to file a habeas petition. See 28 U.S.C.



                                           4
§ 2244(d)(1)(A). In light of the Christmas holiday falling on the date the petition

was otherwise due, however, his petition became due on December 26, 2001, such

that his December 27, 2001, filing was one day late.

      Though Bismark filed a notice with the Florida Supreme Court on June 12,

2001, seeking review of the denial of the motion, the § 2244(d) limitations period

was not tolled further because his petition with the Florida Supreme Court was not

“properly filed” since the order appealed from was per curiam. Bismark’s

assertions that the time period should be calculated other than as set forth above

lack any legal basis.

      Based upon the foregoing, we conclude the district court did not err in

determining Bismark’s § 2254 petition for habeas relief was time-barred, and,

therefore, affirm.

      AFFIRMED.




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