                                                                      [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                 No. 99-4201
                          ________________________

                       D. C. Docket No. 97-07216-CV-SH

FREDERICK WEBSTER,

                                                        Petitioner-Appellant,

                                     versus

MICHAEL W. MOORE, Secretary of
Florida Department of Corrections,

                                                        Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                (January 4, 2000)

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*, Senior
District Judge.

PER CURIAM:




      *
            Honorable Robert B. Propst, Senior U.S. District Judge for the
Northern District of Alabama, sitting by designation.
       Frederick Webster appeals the district court’s dismissal of his 28 U.S.C.

§ 2254 petition as time-barred under 28 U.S.C. § 2244(d)’s one-year limitations

period. We address, for the first time in this circuit, whether a petitioner whose

state petition has been dismissed as untimely may avail himself of statutory tolling

for “properly filed” state petitions under § 2244(d)(2). We conclude that he may

not.

                                   I. Background

       During a botched getaway from a burglary, Webster was involved in an

automobile crash, killing both the driver of his car and the innocent driver of

another car. In 1989, a Florida state court convicted Webster of first-degree felony

murder, second-degree felony murder, and burglary of an unoccupied dwelling,

crimes for which he is currently serving concurrent sentences. In 1989, a court of

appeals affirmed the first-degree murder and burglary convictions, but reversed the

conviction for second-degree murder.

       Webster challenged the remaining convictions in three petitions under Fla.

R. Crim. P. 3.850. Of relevance to this appeal, the third of these was filed on July

19, 1995, and denied as procedurally barred; the denial was affirmed by a mandate

issued September 27, 1996. On May 3, 1997, Webster filed his last state court

petition, a request for habeas corpus relief under Florida’s newly amended Fla. R.


                                          2
App. P. 9.140(j).1 The Florida appeals court denied this petition on July 8, 1997,

and Webster filed the instant federal petition on October 30, 1997. The district

court adopted the recommendation of the magistrate judge that Webster’s petition

be dismissed as time-barred.2

                                   II. Discussion

      It is undisputed that Webster did not file his § 2254 petition within the one-

year time period allowed by the Antiterrorism and Effective Death Penalty Act of

1996 § 101, 28 U.S.C. § 2244(d) (Supp. II 1997) (AEDPA).3 Webster’s contention

      1
              In 1996, the Florida Supreme Court adopted Fla. R. App. P.
9.140(j)(3)(B)-(C), which permitted filing ineffective-assistance-of-appellate-
counsel claims within two years following January 1, 1997. See Amendments to
the Fla. Rules of App. P., 696 So.2d 1103, 1107 (Fla. 1996).
      2
              A motions judge of this court granted Webster a Certificate of
Appealability (COA) that is consistent with the standard articulated in Henry v.
Dep’t of Corrections, 11th Cir., 1999, ___ F.3d ___ (No. 98-5089, December 15,
1999), for issuing COAs where the district court has dismissed the petition on
purely procedural grounds.
      3
              Under § 2244(d), state prisoners must file § 2244 petitions within one
year of the latest among four determining dates. See 28 U.S.C. § 2244(d)(1). Of
these, only the date specified in § 2244(d)(1)(A) applies directly to this case: “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Here, that date is April 14, 1989,
making the habeas filing deadline April 13, 1990. For situations in which a
defendant’s conviction became final before the April 24, 1996 effective date of
AEDPA, however, this court has ruled that the limitations period begins running
on the statute’s effective date, rather than on the final conviction date indicated by
applying § 2244(d)(1)(A). See Wilcox v. Florida Dep’t of Corrections, 158 F.3d
1209, 1211 n.4 (11th Cir. 1998) (citing Goodman v. United States, 151 F.3d 1335,
                                          3
on appeal, however, is that his petition is saved by the tolling provision of §

2244(d)(2). It is not. The subsection does require tolling the limitations period

during the pendency of certain state-court proceedings:

      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 any period
      of limitation under this subsection.

28 U.S.C. § 2244(d)(2). Thus, if Webster could show that his motions for post-

conviction relief in the Florida court system were, either individually or in

combination, (1) “properly filed” within the meaning of the tolling provision and

(2) “pending” for a period of time sufficient to toll the limitations period past

October 30, 1997, his federal petition would be timely. Webster offers two

arguments attempting to do so.

      To undergird the first of his arguments, Webster asserts that both his third

3.850 petition and his state habeas corpus petition were “properly filed” within the

meaning of § 2244(d)(2). In that event, the third 3.850 petition, filed before the

effective date of AEDPA, would toll the AEDPA limitations period until it was

finally decided on September 27, 1996, making the federal deadline September 26,

1997. The state habeas petition, in turn, would toll the statute an additional 65


1337 (11th Cir. 1998)). Applying this rule extends Webster’s deadline to April 23,
1997, but still does not save his October 30 petition.
                                           4
days, extending his deadline from September 26 to December 1, 1997, making his

October 30 federal petition timely.

      This argument fails because Webster’s third 3.850 petition, which the state

trial court dismissed as procedurally barred by the two-year statute of limitations

attached to Rule 3.850, see Fla. R. Crim. P. 3.850(b) (West Supp. 1999), was not

“properly filed” within the meaning of § 2244(d)(2). Federal courts have begun to

struggle with the meaning of the term “properly filed” as contemplated by the

statute, and have developed different interpretive approaches. One court concluded

that “properly filed” entails not only some notion of procedural propriety but also a

threshold inquiry into substantive merit, see Valentine v. Senkowski, 966 F. Supp.

239, 240-41 (S.D.N.Y. 1997), but that decision has been recently overruled, see

Bennett v. Artuz, 2d Cir., 1999, ___ F.3d ___ (No. 98-2452, Oct. 25, 1999) .

Others have ruled that a “properly filed” state-court petition must comply only with

the procedural requirements for filing, such as place, fee payment, and notice.

Some opinions have clarified that these procedural formalities include state filing

deadlines. See Hoggro v. Boone, 150 F.3d 1223, 1226 & n.4 (10th Cir. 1998);

Lovasz v. Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998). Conversely, other cases

hold that they do not include more complex state procedural doctrines relating to

timeliness or repetitiveness. See, e.g., Bennett, ___ F.3d at ___ (ruling a state


                                          5
petition “properly filed” even though the state court found it procedurally barred

under a rule barring collateral claims that could have been raised on direct appeal);

Villegas v. Johnson, 184 F.3d 467, 467-73 (5th Cir. 1999) (holding a state petition,

dismissed as successive or as an abuse of the writ, “properly filed”); Lucas v.

Carter, 46 F. Supp. 2d 709, 711-12 (N.D. Ohio 1999) (concluding that a petition

dismissed by the state court on res judicata grounds was “properly filed”); Souch v.

Harkins, 21 F. Supp. 2d 1083, 1084-88 (D. Ariz. 1998) (observing that a seventh

state postconviction petition “complied with all filing requirements” and therefore

was “properly filed” despite the state court’s conclusion that the argument raised in

the petition had been waived). The legislative history of the provision offers no

help in evaluating these interpretations. See Galindo v. Johnson, 19 F. Supp. 2d

697, 705-06 (W.D. Tex. 1998) (noting the absence of any clarifying history on the

question).

      We perceive two questions that must be resolved to apply the “properly

filed” requirement to this case. Neither has been reached in a published opinion

from this circuit. The first question is whether the state petition must meet state

filing deadlines in order to toll the AEDPA statute of limitation, and here we agree

with the holdings of the Third and Tenth Circuits in Lovasz and Hoggro that it

must. See Hoggro, 150 F.3d. at 1226; Lovasz, 134 F.3d at 148-49. The plain


                                          6
language of § 2244(d)(2) comports with this interpretation. Moreover, we can

identify in the structure of AEDPA a guiding principle for this interpretation. That

structure–including AEDPA’s more robust codification of the exhaustion

requirement, see 28 U.S.C. § 2254(b), and the high degree of respect it affords

state adjudications of constitutional claims, see 28 U.S.C. §§ 2254(d)-(e)–evinces a

concern for federal-state comity closely analogous to that underlying the

procedural default principles applied in federal habeas law. See Coleman v.

Thompson, 501 U.S. 722, 729-32 (1991); Villegas, 184 F.3d at 470-71; Lovasz,

134 F.3d at 148. This concern further militates in favor of requiring compliance

with state filing deadlines in the context of § 2244(d)(2). See Lovasz, 134 F.3d at

148-49.

      The second question is whether a federal court should defer to a state court’s

application of state filing deadlines. Again, we find the close analogy between

procedural default principles and § 2244(d)(2) compelling, and we see no

principled reason to apply a lesser measure of deference to the state court in the

context of § 2244(d)(2) than we apply in the context of procedural default

questions. We therefore conclude that the state court’s holding that Webster’s




                                          7
Rule 3.850 petition was time-barred is due deference.4 Thus, Webster’s first

argument fails.

      Webster’s alternative argument avoids the problems of his first by dropping

the requirement that his third–untimely–3.850 petition be “properly filed.”

Nevertheless, it too fails. Webster relies on a new rule of appellate procedure

made effective by the Florida Supreme Court on January 1, 1997. Under Fla. R.

App. P. 9.140(j)(3)(B) and (C), as then amended, Florida habeas petitioners finally

convicted before 1997 had until January 1, 1999 to file state habeas corpus

petitions alleging ineffective assistance of appellate counsel. Webster argues that

the creation of this new avenue of relief tolls the AEDPA limitations period until

after a Florida prisoner has taken advantage of it. For Webster, this would mean

that the AEDPA period was tolled from the January 1, 1997 effective date of the

new rule through the denial of his 9.140 petition on July 8, 1997, a period

sufficient to make his October 30 federal petition timely.

      We cannot accept this argument as consistent with any reasonable

construction of § 2244(d)(2). Under § 2244(d)(2), even “properly filed” state-


      4
             There is no contention in this case that the state court’s rule is not
“firmly established and regularly followed.” James v. Kentucky, 466 U.S. 341, 348
(1984). Thus, we have no occasion to consider whether the state court would be
due deference if the rule applied was not “firmly established and regularly
followed.”
                                         8
court petitions must be “pending” in order to toll the limitations period. A state-

court petition like Webster’s that is filed following the expiration of the limitations

period cannot toll that period because there is no period remaining to be tolled. In

effect, Webster argues not merely for the tolling of the period, but for its

reinitiation. Section 2244(d) makes no such provision where the reason for

reinitiation is creation of a new remedy under state law. Thus, Webster’s second

argument also fails.5

                                   III. Conclusion

      For the foregoing reasons, the dismissal of Webster’s petition is

AFFIRMED.




      5
         Because we find Webster’s second argument inadequate even on his
statement of Florida law, we need not address the State’s contention that Webster’s
state habeas petition may have been barred by the doctrine of laches. See McCray
v. State, 699 So.2d 1366 (Fla. 1997).
                                           9
