                                                                              [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                   NOVEMBER 3, 2011
                                            No. 11-12267
                                                                       JOHN LEY
                                      ________________________           CLERK

                                D.C. Docket No. 2:09-cv-14240-WJZ

BILLY LEON KEARSE,

llllllllllllllllllllllllllllllllllllllll                         Petitioner - Appellant,

    versus

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

llllllllllllllllllllllllllllllllllllllll                         Respondents - Appellees.

                                     ________________________

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

                                           (November 3, 2011)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

         Petitioner Billy Leon Kearse, an inmate on Florida’s death row, appeals the

district court’s dismissal of his federal habeas petition as untimely. We find that
the district court applied the incorrect standard to evaluate the timeliness of his

petition, resulting in the failure to consider compelling evidence that the petition

was “properly filed” within the meaning of 28 U.S.C. § 2244(d)(2). Instead of

applying the “clear and convincing” standard of 28 U.S.C. § 2254(e)(1), the

district court applied § 2254(d) to evaluate the reasonableness of the state court’s

original dismissal. We therefore vacate the district court’s order and remand for

consideration of the petition’s timeliness in light of the appropriate evidence.

      The crux of this appeal concerns whether a standard, one-page verification

document accompanied Kearse’s initial motion for postconviction relief, which the

state court docketed on October 3, 2001. The state circuit court dismissed without

prejudice the initial motion as noncompliant with Florida Rule of Criminal

Procedure 3.851. The state circuit court later clarified this dismissal when it

denied Kearse’s motion for rehearing and explained that Kearse’s initial motion

“did not have attached, incorporated, or appended to it, an oath which conforms

with the requirements of [Rule 3.851].”

      On June 20, 2002, Kearse filed a motion to vacate his conviction and

sentence, which the state court considered on the merits. The Florida Supreme

Court ultimately denied relief on Kearse’s postconviction motion, Kearse v. State,

969 So. 2d 976 (Fla. 2007), and on his successive motion, Kearse v. State, 11 So.

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3d 355 (Fla. 2009). On July 16, 2009, Kearse filed in federal district court the

petition that is the subject of this appeal. On November 22, 2010, the district court

dismissed Kearse’s petition as untimely, and this appeal followed. We review de

novo the district court’s dismissal of a habeas petition on timeliness grounds.

Cramer v. Sec’y, Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006) (per

curiam).

      The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)

imposes a one-year statute of limitations for filing a federal habeas petition. 28

U.S.C. § 2244(d)(1). This one-year limitations period is tolled while a “properly

filed” application for state postconviction relief is pending in state court. Id.

§ 2244(d)(2). AEDPA further requires federal courts to defer to a state court’s

determination of a factual issue, though it permits a petitioner to rebut those

determinations by clear and convincing evidence. Id. § 2254(e)(1). This is not the

same as § 2254(d), which prohibits a federal court from granting habeas relief

unless the state court’s adjudication of a claim resulted in a decision that was

“contrary to, or involved an unreasonable application of, clearly established

Federal law” or was “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” Id. § 2254(d)(1)–(2).




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       The district court’s order dismissing Kearse’s petition conflated § 2254(d)

with § 2254(e)(1) such that the court did not consider key evidence of the

petition’s timeliness: the time-stamped copies of the initial motion and verification

showing that the state court received both on October 3, 2001, at 9:53 a.m.

Kearse’s failure to present these documents to the state court is irrelevant,1 as

AEDPA does not require presentation to the state court in this instance. Compare

28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State

court shall be presumed to be correct. The [petitioner] shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”), with

28 U.S.C. § 2254(d)(2) (prohibiting federal courts from granting habeas relief

unless “adjudication of the claim . . . resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding”) (emphases added). The district court’s § 2254(d)

evaluation has no place in determining the timeliness of Kearse’s petition, as the


       1
         See District Court Order at 19 (“While Mr. Kearse may now present a compelling case
for the fact that his Verification was filed along with his motion on October 3, 2001, it is not the
same case he presented to the state court. Because, under the AEDPA, a federal habeas court
reviews the state court’s adjudication and determines that it ‘resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States,’ or ‘resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.’” (citing 28 U.S.C. § 2254(d)(1)–(2))). As stated above, this § 2254(d) analysis is
inapplicable when the federal court is not reviewing the state court’s adjudication of a claim for
relief. Instead, § 2254(e)(1) provides the appropriate standard here.

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state court’s conclusion that it was improperly filed in the first instance is a

finding of fact—not “adjudication of [a] claim” under § 2254(d). See Fahy v.

Horn, 516 F.3d 169, 180 (3d Cir. 2008); see also Gonzalez v. Crosby, 545 U.S.

524, 530, 125 S. Ct. 2641, 2647 (2005) (explaining that “claim” in another

AEDPA provision means “an asserted federal basis for relief from a state court’s

judgment of conviction”).

      Here, the state courts found as a matter of fact that Kearse’s initial motion

“did not have attached, incorporated, or appended to it, an oath which conforms

with the requirements of [Rule 3.851].” AEDPA permits Kearse the opportunity

to rebut this fact with clear and convincing evidence that the verification was in

fact so appended, without regard to the reasonableness of the state court’s

decision. See 28 U.S.C. § 2254(e)(1). The district court did not fully evaluate the

“compelling case” that Kearse presented, and we are in no position to make this

finding in the first instance. We therefore vacate the order of the district court and

remand for consideration of whether Kearse can present clear and convincing

evidence to rebut the state court’s factual finding that the verification page was not

attached to Kearse’s initial motion.

      VACATED AND REMANDED.




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