           Case: 16-16691   Date Filed: 04/26/2018   Page: 1 of 4


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16691
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:16-cv-00043-MW-CJK


STEVEN EUGENE TURNER,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                        Respondent-Appellee.

                      ________________________

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

                             (April 26, 2018)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 16-16691     Date Filed: 04/26/2018    Page: 2 of 4


      Steven Eugene Turner, a Florida prisoner represented by counsel, appeals

the district court’s dismissal with prejudice of his 28 U.S.C. § 2254 petition as

untimely. He argues that, pursuant to Rogers v. Sec’y, Dep’t of Corrs., 855 F.3d

1274 (11th Cir. 2017), the district erred in finding that his Fla. R. Crim. P. 3.800(c)

motion to reduce his sentence did not toll his one-year limitations period under the

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

      We review de novo a district court’s dismissal of a § 2254 petition as time-

barred under the AEDPA. Moore v. Crosby, 321 F.3d 1377, 1379 (11th Cir.

2003). The district court’s interpretation and application of the AEDPA limitations

period is a question of law that we also review de novo. Hepburn v. Moore, 215

F.3d 1208, 1209 (11th Cir. 2000).

      The AEDPA imposes a one-year limitations period on all habeas corpus

petitions that runs from the latest of, among other things, “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). Further, the AEDPA

provides that any time during which the applicant’s properly filed application for

state post-conviction or collateral review is pending shall not be counted toward

any limitations period. § 2244(d)(2).

      Florida law provides that the state appellate court’s per curiam decisions

without opinion are not reviewable by the Florida Supreme Court. Jackson v.


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State, 926 So. 2d 1262, 1265-66 (Fla. 2006). Thus, in such a case, a state

prisoner’s conviction becomes final when the U.S. Supreme Court denies

certiorari or when the 90 day period to file a certiorari petition expires. Chavers

v. Sec’y, Fla. Dep’t of Corrs., 468 F.3d 1273, 1274-75 (11th Cir. 2006). The 90-

day period for seeking certiorari review of a conviction runs from the date of entry

of the judgment sought to be reviewed, not from the issuance of the mandate. Id.

at 1275.

      An application for state post-conviction relief remains pending until the

state’s highest court has issued its mandate or denied review. Lawrence v. Florida,

549 U.S. 327, 332 (2007). In Florida, Rule 3.800(c) permits a state court to reduce

or modify a legal sentence imposed by it, either sua sponte or upon motion. Fla. R.

Crim. P. 3.800(c). A Florida prisoner may also file a motion for post-conviction

relief under Rule 3.850 to vacate, set aside, or correct his sentence. Fla. R. Crim.

P. 3.850.

      In Rogers, we held that a Rule 3.800(c) motion was an application for

collateral review that tolls the limitations period for a federal habeas petition.

Rogers, 855 F.3d at 1277. Specifically, we reasoned that a Rule 3.800(c) motion

allowed a prisoner to move for a reduction or modification of a legal sentence,

which was “outside of the direct review process.” Id. (quotation marks omitted).




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Ultimately, we noted that a Florida court’s resolution of a Rule 3.800(c) motion

may eliminate a prisoner’s need to seek federal habeas relief. Id.

      The parties agree that the dispositive issue in this case is whether a motion

made under Florida Rule of Criminal Procedure 3.800(c) is a tolling motion under

28 U.S.C. § 2244(d)(2). Pursuant to the controlling authority of our recent decision

in Rogers, we hold that is.

      In accordance with our precedent in Rogers, which was decided after the

district court’s decision but before briefing in Turner’s appeal, the district court

erred when it determined that Turner’s Rule 3.800(c) motion to reduce his sentence

was not an application for collateral review that would toll his one-year limitations

period. As the parties concede, Turner’s § 2254 petition was timely after

accounting for the time that the limitations period was tolled while his Rule

3.800(c) motion was pending.

      REVERSED AND REMANDED.




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