                                                                     [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT         FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 03-16381                    June 4, 2004
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                  D.C. Docket No. 03-00854-CV-T-23-MAP

HUGH W. BOONE,

                                                       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
                        _________________________

                                (June 4, 2004)

Before ANDERSON, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Hugh W. Boone, proceeding pro se, appeals the district court’s denial of his

Federal Rule of Civil Procedure 60(b) motion for relief from judgment from the

order dismissing his 28 U.S.C. § 2254 petition for writ of habeas corpus. On

appeal, Boone argues that the district court abused its discretion by denying his

Rule 60(b) motion based on its finding that the date of his re-sentencing was

irrelevant for purposes of determining when the Antiterrorism and Effective Death

Penalty Act of 1996’s (“AEDPA”) one-year limitations period for federal writs of

habeas corpus had commenced. For the reasons set forth more fully below, we

affirm the district court’s order.

      Boone is a Florida prisoner who was sentenced to a total of 16.75 years’

imprisonment for sexual battery, possession of cocaine, and multiple child sex

offenses. Boone filed a § 2254 petition on May 5, 2003, challenging the

lawfulness of his arrest and the search of his residence. Boone also argued that his

defense counsel had rendered ineffective assistance by failing to move to suppress

evidence that Boone alleged was unlawfully seized. In his petition, Boone noted

that the “Date of judgment of conviction” was January 9, 1997, but that he had

been re-sentenced on October 10, 2002, subsequent to his filing a Florida Rule of

Criminal Procedure 3.800 motion for post-conviction relief.




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      The district court sua sponte dismissed Boone’s § 2254 petition as time-

barred under the AEDPA’s one-year period of limitations for writs of habeas

corpus. The court found that Boone’s convictions had become final on February

8, 1997, and that the AEDPA’s one-year statute of limitations had expired in

February 1998.

      Boone moved for reconsideration of the court’s order, pursuant to Rule

60(b), arguing that his § 2254 petition should be deemed timely filed because he

had filed it within one year of the date on which he was re-sentenced. In support

of his claim, Boone cited Walker v. Crosby, 341 F.3d 1240, 1246 (11th Cir. 2003),

where we held that the statute of limitations for a § 2254 petition that contained

claims challenging the petitioner’s original judgment of conviction as well as

claims challenging his re-sentencing judgment began to run on the date the re-

sentencing judgment became final.

      The district court denied Boone’s Rule 60(b) motion, finding that

Walker was inapplicable because Boone’s § 2254 petition challenged only the

validity of his underlying conviction. Consequently, the court found that the date

of Boone’s re-sentencing, which did not affect the validity of his convictions, was

irrelevant for purposes of calculating the AEDPA’s one-year limitations period.

Thereafter, the court granted a certificate of appealability as to “whether a

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petitioner is entitled to the benefit of a new statute of limitations period

commencing from the date of re-sentencing pursuant to [Walker] when the petition

for writ of habeas corpus challenges only the original trial proceedings and does

not raise any challenge based on the re-sentencing proceedings.”*

       On appeal, Boone argues that the district court erred by denying his Rule

60(b) motion based on its finding that the date of his re-sentencing was irrelevant

for purposes of determining when the AEDPA’s one-year limitations period had

commenced. Boone maintains that, under Walker, the limitations period should

have begun on the date that his re-sentencing judgment became final, regardless of

whether his § 2254 petition challenged his re-sentencing judgment. Boone

additionally contends that, in finding that his § 2254 petition was not timely, the

district court erroneously employed a “claims approach,” whereby it separately

reviewed each of his claims for timeliness.

       We review for abuse of discretion the denial of a Rule 60(b) motion. Davis

v. Florida Power & Light Co., 205 F.3d 1301, 1304 n.4 (11th Cir. 2000). The

AEDPA imposes a one-year period of limitations for writs of habeas corpus. 28

U.S.C. § 2244(d)(1). The one-year limitations period for petitioners whose


       *
           The scope of the instant appeal is limited to whether the district court abused its
discretion by denying Boone’s Rule 60(b) motion and does not extend to the validity of the
underlying judgment per se.

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convictions became final after the enactment of the AEDPA beings to run 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.

Id.

       We have held that the statute of limitations for a § 2254 petition challenging

a re-sentencing court’s judgment commences on the date that the re-sentencing

judgment became final. Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000)

(stating that “the AEDPA cannot be interpreted to require a prisoner to raise

claims before they arise”). We also have held that, under § 2244(d)(1)(A), the

limitations period for a § 2254 petition challenging both a petitioner’s original

judgment of conviction and his re-sentencing judgment begins to run on the date



                                           5
that the re-sentencing judgment became final. Walker, 341 F.3d at 1246

(concluding that petitioner was entitled to challenge both judgments in his § 2254

petition and that the date on which his re-sentencing judgment became final was

the latest of the several possible triggering dates provided in § 2244(d)(1)).

      As the district court found, this case is distinguishable from Walker

because, unlike in that case, Boone’s § 2254 petition contested only the underlying

validity of his convictions and did not in any way challenge his re-sentencing

judgment. Furthermore, we have never held that the limitations period for a

habeas application that challenges only the petitioner’s original judgment

commences on the date that the re-sentencing judgment became final.

Additionally, the plain language of § 2244(d)(1) mandates a finding that the latest

possible triggering date for an application that challenges only the original

judgment is the date on which that judgment became final. See 28 U.S.C.

§§ 2244(d)(1)(A), (D) (stating that the limitations period begins to run from the

latest of “the date on which the judgment became final” . . . or “the date on which

the factual predicate of the claim or claims presented could have been discovered

through the exercise of due diligence”). Based on the foregoing, the district court

did not apply an incorrect legal standard or make a clear error of judgment by

finding that Boone was not entitled to relief under Walker. See Alexander v.

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Fulton County, Ga., 207 F.3d 1303, 1326 (11th Cir. 2000) (“When employing an

abuse of discretion standard, ‘we must affirm unless we at least determine that the

district court has made a clear error of judgment, or has applied an incorrect legal

standard’”) (civil rights case).

      Finally, Boone’s assertion that the district court applied a “claims approach”

is unsupported by the record. The court’s orders dismissing Boone’s § 2254

petition and denying Boone’s Rule 60(b) motion in no way indicate that the court

separately reviewed each of his claims for timeliness.

      Accordingly, we conclude that the district court’s denial of Boone’s Rule

60(b) motion did not constitute an abuse of discretion. We, therefore, affirm.

      AFFIRMED.




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