           Case: 18-10618   Date Filed: 03/04/2020   Page: 1 of 4



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10618
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:17-cv-62407-FAM



CECIL TOLBERT,

                                                        Petitioner - Appellant,

                                 versus

STATE OF FLORIDA,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                     Respondents - Appellees.

                      ________________________

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

                             (March 4, 2020)

Before WILLIAM PRYOR, JILL PRYOR, and GRANT, Circuit Judges.

PER CURIAM:
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      On November 22, 2017, Tolbert filed a pro se § 2254 petition, challenging

his Florida convictions and sentence for: (1) armed kidnapping and (2) armed

sexual battery on a victim over 12 years old. In response, a magistrate judge issued

a report and recommendation suggesting that the district court should sua sponte

dismiss the petition as time-barred. The district court eventually dismissed the

petition as untimely. Tolbert argues that the court improperly calculated the

finality of his conviction by not accounting for his time to seek review in the

Supreme Court of the United States on direct appeal.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), § 2254 petitions are governed by a one-year statute of limitations that

begins to run on the latest of four triggering events, including “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). We have explained

that the phrase “the expiration of the time for seeking such review” means the

expiration of the time period for seeking review in the Supreme Court of the

United States—which is 90 days after an appropriate appellate court’s entry of

judgment. See Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th

Cir. 2006); Sup. Ct. R. 13(1) & (3). The one-year limitations period is tolled

during periods when a properly filed application for state post-conviction relief is

pending. 28 U.S.C. § 2244(d)(2). The tolling period ends when the state’s highest


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court issues its mandate or denies review. Lawrence v. Florida, 549 U.S. 327, 332

(2005).

      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) (citing Steed v. Head, 219 F.3d 1298,

1300 (11th Cir. 2000)). Here, the district court miscalculated the finality of

Tolbert’s conviction by failing to properly account for his time to file for direct

review in the Supreme Court of the United States.

      The record indicates that Tolbert was convicted after a jury verdict on

November 30, 2011, and was sentenced on January 6, 2012. Tolbert filed his

notice of appeal on January 18, 2012. On May 1, 2013, Florida’s Fourth District

Court of Appeal affirmed his conviction and sentence. Tolbert’s motion for

rehearing was denied by that court on June 7, 2013. Tolbert sought review in the

Florida Supreme Court. That court denied review on August 16, 2013. In its order

denying review, the Florida Supreme Court indicated that it would not consider a

motion for rehearing—but Tolbert filed such a motion anyway. That motion was

struck as unauthorized on September 30, 2013.

      Tolbert argues that his conviction was not final until the Florida Supreme

Court struck his motion for rehearing, but that argument does not matter in the end.

His application is timely even when calculated from the Florida Supreme Court’s


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initial order denying review on August 16, 2013. Calculated from that date,

Tolbert’s “expiration of the time for seeking” direct review from the Supreme

Court of the United States was November 14, 2013. Tolbert had one year from

that date to file his application. See 28 U.S.C. § 2244(d)(1)(A). But on September

16, 2014, Tolbert filed a Fla. R. Crim. P. 3.850 motion for state post-conviction

relief, which tolled the one-year period. See id. § 2244(d)(2). As of that date, only

306 days had run from the one-year period. Florida’s Fourth District Court of

Appeal did not issue its mandate affirming the trial court’s denial of Tolbert’s

3.850 motion until October 6, 2017.1 As of that date, Tolbert still had 59 days to

file his § 2254 petition. He filed his petition on November 22, 2017—or 47 days

later. His petition was thus timely.

       Accordingly, we vacate the ruling below and remand Tolbert’s petition to

the district court.

       VACATE AND REMAND.




       1
         Because the Fourth District Court of Appeal made its decision in a per curiam,
unwritten affirmance, the Florida Supreme Court lacked discretionary review jurisdiction. See
Wells v. State, 132 So. 3d 1110, 1113 (Fla. 2014).
                                               4
