                                                                    [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                             March 3, 2008
                              No. 06-12501                 THOMAS K. KAHN
                        ________________________               CLERK


                  D. C. Docket No. 05-00208-CV-T-24-MAP

HOWARD ALEXANDER, SR.,



                                                           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
                      _________________________

                              (March 3, 2008)

Before BLACK, HULL and FAY, Circuit Judges.

HULL, Circuit Judge:
      This Court sua sponte vacates our prior opinion, published at 510 F.3d 1362

(11th Cir. 2007), and enters the following opinion in its place.

      Howard Alexander, Sr., a Florida prisoner with appointed counsel, appeals

the dismissal of his 28 U.S.C. § 2254 petition as barred by the one-year limitations

period in 28 U.S.C. § 2244(d)(1). After review and oral argument, we conclude

that Alexander’s Florida Rule of Criminal Procedure 3.800(c) motion was a request

to reduce a legal sentence based on mercy or leniency and did not constitute an

application for State post-conviction or other collateral review with respect to the

pertinent judgment under § 2244(d)(2) that tolled the limitations period. Thus, we

affirm the district court’s dismissal of Alexander’s § 2254 petition as untimely.

                                I. BACKGROUND

A.    Convictions Final on January 30, 2001

      In Florida state court, Alexander was charged with first-degree murder,

grand theft of a vehicle, and robbery with a deadly weapon. In May 1999, a jury

convicted Alexander of grand theft of a vehicle and the lesser offenses of

manslaughter with a weapon and petit theft. Alexander was sentenced as a habitual

felony offender to 25 years’ imprisonment on the manslaughter conviction, a

concurrent 5-year sentence on the grand theft conviction, and time served on the

petit theft conviction.



                                           2
       On November 1, 2000, the Florida appellate court affirmed his convictions.

Alexander v. State, 774 So. 2d 697 (Fla. Dist. Ct. App. 2000). The parties

stipulated that his judgment of conviction became final on January 30, 2001.1 His

§ 2254 petition thus had to be filed by January 30, 2002 to be timely, absent

tolling. See 28 U.S.C. § 2244(d)(1).

B.     Rule 3.800(c) Motion under Florida Law

       On January 8, 2001, Alexander, pro se, filed a motion to reduce his legal

sentence pursuant to Florida Rule of Criminal Procedure 3.800(c).2 Alexander’s


        1
         This date is 90 days from November 1, 2000, the date on which the Florida District
Court of Appeal affirmed Alexander’s convictions. The parties apparently gave Alexander the
benefit of the 90-day period for seeking certiorari in the U.S. Supreme Court. See Sup. Ct. R.
13.1. However, we note that Alexander did not file a notice to invoke the discretionary
jurisdiction of the Florida Supreme Court and may have been entitled to only 30 days additional
time to file with the Florida Supreme Court. Fla. R. App. P. 9.120(b). In any event, without
statutory tolling of the time that Alexander’s Rule 3.800(c) motion was pending, his § 2254
petition remains time-barred regardless of whether we find that his conviction became final on
January 30, 2001 or December 1, 2000, the date on which the 30-day period to file a notice to
invoke the discretionary jurisdiction of the Florida Supreme Court expired. Id. Thus, we need
not decide whether the correct date of finality was January 30, 2001 or December 1, 2000.
        Further, we acknowledge that Alexander’s failure to seek discretionary review from the
Florida Supreme Court raises questions of whether Alexander fully exhausted state remedies on
direct appeal. See O’Sullivan v. Boerckel, 526 U.S. 838, 847, 119 S. Ct. 1728, 1733 (1999)
(concluding that, in order to satisfy the exhaustion requirement of § 2254(c) and avoid
procedural default, “state prisoners [must] file petitions for discretionary review when that
review is part of the ordinary appellate review procedure in the State”). However, we decline to
address the exhaustion issue because (1) it is outside of the scope of the certificate of
appealability, see Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (holding
that appellate review is limited to the issue or issues presented in the certificate of appealability),
and (2) the State has not argued the exhaustion issue on appeal in any event, see United States v.
Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (discussing long-standing rule in this circuit that
issues not raised in a party’s initial brief on appeal are deemed waived).
       2
            See infra note 7 quoting the text of Florida Rule of Criminal Procedure 3.800(c).

                                                    3
3.800(c) motion stated that (1) he was very remorseful for what he had done, (2) he

prayed for the victim’s family, (3) he had learned valuable lessons about life since

incarceration and had impacted others through sharing the Gospel of Jesus Christ,

and (4) his family and children needed him to return as soon as possible.

Alexander’s 3.800(c) motion asked the state court to review the “uncontroverted

mitigating facts” in the case and have mercy on him by mitigating his sentence.

Alexander’s 3.800(c) was filed in the state court where he was sentenced.

       On January 26, 2001, the clerk of the state trial court sent Alexander a letter

indicating that his 3.800(c) motion was heard in court and denied on January 24,

2001. The clerk attached a copy of the court calendar report that contained an

entry for his 3.800(c) motion with the words “denied” and “no one present” beside

it. In February 2001, Alexander filed a notice of appeal but, in July 2001, the

Florida appellate court dismissed the 3.800(c) appeal for lack of jurisdiction.

Alexander v. State, 793 So. 2d 940 (Fla. Dist. Ct. App. 2001).3

       In February 2001, Alexander also filed a petition for certiorari in the Florida

appellate court. On May 10, 2002, the Florida appellate court held that Alexander



       3
         An order entered on a Rule 3.800(c) motion to reduce or modify a sentence generally is
not appealable, but is subject to review in an extraordinary case under the Florida appellate
court’s certiorari jurisdiction. See Byrd v. State, 920 So. 2d 825, 826 (Fla. Dist. Ct. App. 2006);
see also Mathis v. State, 959 So. 2d 378 (Fla. Dist. Ct. App. 2007) (dismissing appeal of order
denying Rule 3.800(c) motion).

                                                 4
was entitled to a ruling on the merits of his 3.800(c) motion and, if a hearing was

held, to be present for the hearing. Alexander v. State, 816 So. 2d 778, 780 (Fla.

Dist. Ct. App. 2002). Accordingly, the Florida appellate court granted the petition

for certiorari, quashed the trial court’s order denying Alexander’s 3.800(c) motion,

and remanded to the trial court for consideration of his 3.800(c) motion on its

merits. Id. On May 14, 2002, upon remand, the state trial court denied

Alexander’s 3.800(c) motion.

C.    Rule 3.850 Motion under Florida Law

      On February 27, 2002, while Alexander’s 3.800(c) proceedings were still

pending, Alexander, pro se, filed a motion for post-conviction relief pursuant to

Florida Rule of Criminal Procedure 3.850. On November 21, 2002, the state court

denied Alexander’s 3.850 motion. Alexander filed an untimely appeal of the

denial of his 3.850 motion, which the state appellate court sua sponte dismissed.

Alexander v. State, 848 So. 2d 315 (Fla. Dist. Ct. App. 2003).

      On August 12, 2003, Alexander filed a petition for a belated appeal of the

denial of his 3.850 motion. After an evidentiary hearing, the state appellate court

granted the petition for a belated appeal. Alexander v. State, 875 So. 2d 598 (Fla.

Dist. Ct. App. 2003). On June 25, 2004, the state appellate court affirmed the

denial of his 3.850 motion. Alexander v. State, 880 So. 2d 1218 (Fla. Dist. Ct.



                                          5
App. 2004).

D.     Section 2254 Petition

       On January 10, 2005, Alexander filed his § 2254 petition.4 The district court

concluded that the one-year limitations period began to run on January 30, 2001

(when Alexander’s convictions became final) and expired on January 30, 2002.

The district court determined that Alexander’s 3.800(c) motion did not operate as a

vehicle for collateral review of the legality of the pertinent judgment, but only

allowed a state sentencing court to reduce a legal sentence based on a prayer for

mercy or leniency. Thus, the district court concluded that Alexander’s 3.800(c)

motion did not constitute an application for post-conviction or other collateral

review under § 2244(d)(2) and did not toll. Because the one-year limitations

period expired on January 30, 2002, before Alexander filed his tolling 3.850

motion on February 27, 2002, the district court dismissed Alexander’s § 2254

petition as untimely.

       The district court denied Alexander a certificate of appealability (“COA”).5


       4
        Under the “mailbox rule,” Alexander’s § 2254 petition is deemed filed on the date it was
delivered to prison authorities for mailing. See Adams v. United States, 173 F.3d 1339, 1341
(11th Cir. 1999).
       5
        The district court’s COA order also stated that Alexander’s notice of appeal was
untimely. The district court entered its judgment dismissing Alexander’s § 2254 petition on
March 24, 2006. Alexander had 30 days to file a timely notice of appeal. See Fed. R. App. P.
4(a)(1)(A). Because this 30-day period expired on Sunday, April 23, 2006, Alexander had until
the next day – April 24, 2006 – to file a timely notice of appeal. See Fed. R. App. P. 26(a)(3).

                                                6
This Court then granted Alexander a COA on the sole issue of:

       Whether the district court properly dismissed appellant’s 28 U.S.C.
       § 2254 petition as untimely in light of his properly filed Fla.R.Crim.P.
       3.800(c) motion for reduction of sentence[.]6

                                      II. DISCUSSION

       The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), establishes a one-year statute of

limitations for filing § 2254 petitions, which begins to run following, inter alia, the

date on which the petitioner’s judgment becomes final. 28 U.S.C. § 2244(d)(1).

Section 2244(d)(2) provides that “[t]he 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).

       It is not disputed that Alexander’s § 2254 petition was untimely if his

3.800(c) motion is not a tolling motion. The one-year limitations period began to

run when Alexander’s conviction became final on January 30, 2001. Absent

tolling, the one-year limitations period would have expired on January 30, 2002,



Alexander’s notice of appeal was signed and dated April 24, 2006. Accordingly, Alexander’s
notice of appeal was timely, and we have jurisdiction over this appeal.
       6
        This Court reviews de novo the district court’s determination that a petition for habeas
corpus relief was time-barred under 28 U.S.C. § 2244(d). See Steed v. Head, 219 F.3d 1298,
1300 (11th Cir. 2000).

                                                7
which was before Alexander filed his 3.850 motion on February 27, 2002.

      While a 3.850 motion is a tolling motion under § 2244(d)(2), it could not toll

the one-year limitations period if that period already had expired. Webster v.

Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“A state-court petition . . . that is

filed following the expiration of the limitations period cannot toll that period

because there is no period remaining to be tolled.”). Thus, if the one-year

limitations period was not tolled by Alexander’s 3.800(c) motion filed on January

8, 2001, his § 2254 petition was untimely filed on January 10, 2005.

      The parties also do not dispute that Alexander’s 3.800(c) motion was (1) an

“application,” (2) “properly filed” in state court, and (3) “pending” during the

relevant time period for which Alexander seeks tolling. Thus, we need not address

those aspects of § 2244(d)(2). Instead, the sole question is whether Alexander’s

3.800(c) motion was an application “for State post-conviction or other collateral

review with respect to the pertinent judgment” under § 2244(d)(2). We first

examine Rule 3.800(c) and then two of our recent decisions regarding tolling

motions under § 2244(d)(2).

A.    Rule 3.800(c)

      Rule 3.800(c) states that “[a] court may reduce or modify . . . a legal




                                           8
sentence imposed by it . . . .” Fla. R. Crim. P. 3.800(c) (emphasis added).7 While

Rule 3.800(c) does not enumerate any basis for which a petitioner may seek to

reduce or modify his sentence, it presupposes that the sentence the court is being

asked to reduce or modify is “a legal sentence.” See id. In contrast, challenges of

legal error in a sentence are raised under other provisions of the Florida Rules of

Criminal Procedure. Rule 3.800(a) allows a petitioner to request the sentencing

court to “correct an illegal sentence” at any time. Fla. R. Crim. P. 3.800(a).8 Also,

a petitioner may seek relief from judgment or release from custody under Rule


       7
         Rule 3.800(c), entitled “Reduction and Modification,” provides:
        A court may reduce or modify . . . a legal sentence imposed by it within 60 days after
        the imposition, or within 60 days after receipt by the court of a mandate issued by
        the appellate court on affirmance of the judgment and/or sentence on an original
        appeal, or within 60 days after receipt by the court of a certified copy of an order of
        the appellate court dismissing an original appeal from the judgment and/or sentence,
        or, if further appellate review is sought in a higher court or in successively higher
        courts, within 60 days after the highest state or federal court to which a timely appeal
        has been taken under authority of law, or in which a petition for certiorari has been
        timely filed under authority of law, has entered an order of affirmance or an order
        dismissing the appeal and/or denying certiorari. This subdivision shall not be
        applicable to those cases in which the death sentence is imposed or those cases in
        which the trial judge has imposed the minimum mandatory sentence or has no
        sentencing discretion.
Fla. R. Crim. P. 3.800(c). Alexander filed his 3.800(c) motion within 60 days of issuance of the
November 29, 2000 mandate from the Florida District Court of Appeal affirming his convictions
on direct appeal. The parties do not dispute on appeal that Alexander’s 3.800(c) motion was
“properly filed.”
       8
         Rule 3.800(a), entitled “Correction,” provides that:
        A court may at any time correct an illegal sentence imposed by it, or an incorrect
        calculation made by it in a sentencing scoresheet, or a sentence that does not grant
        proper credit for time served when it is affirmatively alleged that the court records
        demonstrate on their face an entitlement to that relief . . . .
Fla. R. Crim. P. 3.800(a).

                                                 9
3.850 because, inter alia, a sentence (1) was imposed in violation of the

Constitution or laws of the United States or Florida, (2) exceeded the maximum

authorized by law, or (3) is otherwise subject to collateral attack. Fla. R. Crim. P.

3.850(a).

      Rules 3.800(a) and 3.850 thus explicitly provide a procedure for raising a

legal challenge to a sentence. On the other hand, Rule 3.800(c) assumes that the

sentence sought to be modified or reduced is legal and functions effectively as a

procedure for a petitioner to request leniency from the sentencing court based on

mitigating circumstances. See Williams v. State, 907 So. 2d 1224, 1225 (Fla. Dist.

Ct. App. 2005); Suggs v. State, 358 So. 2d 897, 897 (Fla. Dist. Ct. App. 1978).

      We now review our precedent about tolling motions under § 2244(d)(2).

B.    Our Precedent in Bridges and Sibley

      In Bridges v. Johnson, 284 F.3d 1201 (11th Cir. 2002), this Court concluded

that an application for sentence review under Georgia’s procedure was not a tolling

motion under § 2244(d)(2).9 284 F.3d at 1204. The Georgia procedure in

O.C.G.A. § 17-10-6, which was separate from the direct appeal and state habeas

procedures, allowed prisoners to seek review of their sentences by a three-judge

panel which would determine whether a sentence was “excessively harsh” in light



      9
          The phrase “post-conviction or other collateral review” is not defined within AEDPA.

                                                10
of the defendant’s crime and prior criminal record.10 Id. at 1203.

       This Court in Bridges emphasized that the goals of AEDPA’s provisions

include “(1) ensuring ‘that the state courts have the opportunity fully to consider

federal-law challenges to a state custodial judgment before the lower federal courts

may entertain a collateral attack upon that judgment,’ and (2) serving ‘the

well-recognized interest in the finality of state court judgments.’” Id. at 1203

(quoting Duncan v. Walker, 533 U.S. 167, 178-79, 121 S. Ct. 2120, 2127-28

(2001)). This Court further noted that “‘[t]he tolling provision of § 2244(d)(2)

balances the interests served by the exhaustion requirement and the limitation

period.’” Id. (quoting Walker, 533 U.S. at 179, 121 S. Ct. at 2128).

       Reading § 17-10-6 in light of AEDPA’s goals, this Court in Bridges

concluded that the Georgia sentence review procedure did not constitute state post-

conviction relief under § 2244(d)(2) “because it does not promote exhaustion by

giving state courts the opportunity to consider federal-law challenges to state court

judgments, and it does not promote finality of state court judgments by reducing


       10
         O.C.G.A. § 17-10-6 provided that, in any case in which a sentence of 12 or more years
was imposed, except death penalty cases and serious violent felonies:
       the defendant shall have the right to have the sentence or sentences reviewed by a
       panel of three superior court judges to determine whether the sentence or sentences
       so imposed are excessively harsh. Consideration shall be given in the review to the
       nature of the crime for which the defendant has been convicted and to the
       defendant’s prior criminal record. . . .
O.C.G.A. § 17-10-6(a). This statute was repealed in 2007. See id. § 17-10-6 (repealed by 2007
Georgia Laws Act 327 (H.B. 197)).

                                              11
the time in which federal review is sought.” Id. The Georgia sentence review

procedure was “merely a means for comparing sentences to ensure accuracy.” Id.

This Court agreed with the district court’s observation that the “sentence review is

not an attack on the constitutionality or legal correctness of a sentence or judgment

in contrast to a direct appeal or habeas action.” Id. at 1204 (quotation marks

omitted). Thus, an application for sentence review in Georgia under § 17-10-6 was

not a tolling motion under § 2244(d)(2). Id.

      This Court further explored the limits of § 2244(d)(2) in Sibley v. Culliver,

377 F.3d 1196 (11th Cir. 2004). The document at issue in Sibley was a “Notice”

sent by the petitioners to the Alabama Supreme Court that informed that court that

the petitioners had sent documents appealing their convictions and sentences to

members of Congress. Id. at 1198-99. In concluding that the “Notice” did not

constitute “an application for State post-conviction or other collateral review,” this

Court explained that § 2244(d)(2) requires that such an application “contain

something vaguely approaching legitimate, relevant, coherent legal analysis.” Id.

at 1200. This Court in Sibley further stated that “where a petitioner fails to include

any meaningful federal or state legal analysis, we need not consider his filing an

application for state post-conviction review.” Id. Because the “Notice” was not an

application for State post-conviction or other collateral review (and, furthermore,



                                          12
was not “properly filed”), this Court concluded that the petitioners’ “Notice” was

not a tolling motion. See id. at 1201-04.

C.    Rule 3.800(c) Motion is not a Tolling Motion

      Based on the language of § 2244(d)(2) and our prior precedent interpreting

§ 2244(d)(2), we conclude that Alexander’s 3.800(c) motion was not an

“application for State post-conviction or other collateral review with respect to the

pertinent judgment” under § 2244(d)(2) and thus did not toll the limitations period.

As we noted in Sibley, a tolling motion under § 2244(d)(2) “must contain

something vaguely approaching legitimate, relevant, coherent legal analysis.”

Sibley, 377 F.3d at 1200. Alexander’s 3.800(c) motion contained no such legal

analysis. In his 3.800(c) motion, Alexander expressed remorse for the victim’s

family, indicated that prison had changed him and that he was sharing the Gospel

of Jesus Christ with others, and noted that his family and children needed him.

Alexander concluded his 3.800(c) motion by asking the court to have mercy on

him and mitigate his sentence. Even liberally read, Alexander’s pro se 3.800(c)

motion was only a plea for leniency, not “an attack on the constitutionality or legal

correctness of a sentence.” See Bridges, 284 F.3d at 1204 (quotation marks

omitted). Like the Georgia sentencing review procedure addressed in Bridges,

Rule 3.800(c) does not advance AEDPA’s interests in allowing state courts a full



                                            13
opportunity to consider federal-law challenges or in the finality of state court

judgments.

       We disagree with Alexander’s contention that our conclusion here is

inconsistent with our decision in Ford v. Moore, 296 F.3d 1035 (11th Cir. 2002),

regarding Rule 3.800(a). As an initial matter, the issue in Ford was whether a

motion must contain a federal-law argument in order to toll, not whether a 3.800(a)

motion is a tolling motion.11 Unlike here, the State conceded in Ford that a Rule

3.800(a) motion, in general, was an “application for State post-conviction or other

collateral review” under § 2244(d)(2), so this Court did not squarely address that

issue. Ford, 296 F.3d at 1037.

       More importantly, Ford addressed only Rule 3.800(a),12 and there is a

significant difference in the text of 3.800(a) and 3.800(c). Rule 3.800(a) explicitly

provides for a court to “correct an illegal sentence,” whereas Rule 3.800(c) only

allows a court to “reduce or modify . . . a legal sentence.” Fla. R. Crim. P.

3.800(a), (c). While Rule 3.800(a) also allows for correction of a sentence based


       11
         In Ford, this Court concluded, based on an interpretation of the phrase “judgment or
claim” in § 2244(d)(2), that an application for state post-conviction or other collateral review
would toll “regardless of whether the basis of the attack is grounded in federal or state law.”
Ford, 296 F.3d at 1038.
       12
          Both parties on appeal here agree that the petitioner’s motion in Ford was filed under
Rule 3.800(a). The description in Ford of the petitioner’s motion as a “motion to correct an
illegal sentence” and the substantive legal challenge raised therein indicates that it was filed
under Rule 3.800(a). See Ford, 296 F.3d at 1036.

                                                 14
on an incorrect calculation in a sentencing scoresheet or the failure to grant proper

credit for time served, see Fla. R. Crim. P. 3.800(a), the petitioner in Ford did not

raise either of those challenges in his 3.800(a) motion. Instead, petitioner’s

3.800(a) motion challenged that his sentence was unconstitutional because it

exceeded statutory limitations. See Ford, 296 F.3d at 1036. To the extent that

Ford adopted the State’s concession that a 3.800(a) motion was a tolling motion,

Ford established only that the 3.800(a) motion at issue, which raised a legal

challenge to a sentence, was a tolling motion, not that all 3.800(a) motions are

tolling motions. Thus, the holding in Ford that a 3.800(a) motion that raised a

legal challenge to a sentence was a tolling motion is consistent with our conclusion

here that Alexander’s 3.800(c) motion – which raised no challenge of legal error

whatsoever – is not a tolling motion.13

D.     Other Circuits

       Both the Third and Fourth Circuits have concluded that motions filed under

state rules similar to Rule 3.800(c) are not tolling motions under § 2244(d)(2).


       13
          In concluding that a state motion can toll the limitations period even if does not raise a
federal claim, the Ford Court also stated that “[a] state collateral proceeding based solely on
state-law issues may avoid the need for federal relief, and a tolling rule permits prisoners to
pursue such theories in state court without jeopardizing their ability to raise the federal
constitutional issues later in federal court, if that proves to be necessary.” Ford, 296 F.3d at
1040. The Ford petitioner challenged his sentence as illegal and unconstitutional under state law
and this language contemplates that a “state-law” challenge could eliminate the need for a future
claim under federal law. In contrast, Rule 3.800(c) does not allow for a petitioner to raise any
legal challenge, state or federal, that could obviate the need for federal relief.

                                                 15
Hartmann v. Carroll, 492 F.3d 478, 481-84 (3rd Cir. 2007), petition for cert. filed,

76 U.S.L.W. 3200 (U.S. Oct. 3, 2007) (No. 07-478); Walkowiak v. Haines, 272

F.3d 234, 237-39 (4th Cir. 2001).14

       In Hartmann, the Third Circuit addressed whether a motion for reduction of

sentence under Delaware Superior Court Criminal Rule 35(b) was a tolling motion.

After contrasting the language of Rule 35(b) with other Delaware rules that

allowed petitioners to raise legal challenges, the Third Circuit concluded that “[a]

Rule 35(b) motion is a plea for leniency, directed toward the sentencing court,

which seeks discretionary relief based on mercy and grace, rather than on the law.”

Hartmann, 492 F.3d at 481. The petitioner’s Rule 35(b) motion, which raised

thirteen “mitigating circumstances,” only sought “a discretionary exercise of

leniency by the sentencing judge.” Id. at 482. After reviewing the principles

sought to be served by AEDPA, the Third Circuit concluded that “tolling for a

leniency petition does not advance those goals.” Id. at 484. The Hartmann Court

explained that “[o]bviously, when a prisoner in state custody opts to file a motion

for discretionary leniency, the state is not being asked to correct errors of legal



       14
         But see Robinson v. Golder, 443 F.3d 718, 720-21 (10th Cir.) (concluding Colorado
Rule of Criminal Procedure 35(b) motion for reduction of sentence was a tolling motion), cert.
denied, ___ U.S. ___, 127 S. Ct. 166 (2006); Howard v. Ulibarri, 457 F.3d 1146, 1148-50 (10th
Cir. 2006) (following Robinson to conclude New Mexico Rule of Criminal Procedure 5-801
motion for modification of sentence was a tolling motion).

                                              16
moment. Whatever interest the state has in deciding the motion, its interest is not

one in correcting errors before the federal courts assume jurisdiction.” Id. at 483.

Thus, the Third Circuit concluded that the petitioner’s Rule 35(b) motion was not a

tolling motion. Id. at 484.

      The Fourth Circuit reached a similar conclusion in addressing whether a

motion for reduction of sentence under West Virginia Rule of Criminal Procedure

35(b) was a tolling motion. In determining that a Rule 35(b) motion does not seek

“collateral” review, the Fourth Circuit noted that “collateral” proceedings

“typically entail a challenge to the legality of the earlier proceeding or judgment.”

Walkowiak, 272 F.3d at 238. However, a Rule 35(b) motion, unlike a motion to

“correct an illegal sentence” under West Virginia Rule 35(a), does not raise any

challenge of error by the sentencing court, much less legal error. Id. “The only

issue before the court on a Rule 35(b) motion is whether the defendant, although

sentenced in conformity with applicable laws, nevertheless presents some

compelling non-legal justification that warrants mercy.” Id. The petitioner’s Rule

35(b) motion was consistent with this reading of the rule in that it only sought

“mercy from the court, on the basis of a variety of asserted mitigating

circumstances.” Id. Thus, because a Rule 35(b) motion “does not entail a legal

challenge to the original sentence,” the Fourth Circuit concluded that it was not a



                                          17
tolling motion.15 Id. at 239.

        The analyses and conclusions by the Third and Fourth Circuits in these two

decisions are consistent with this circuit’s Bridges decision and our conclusion

here.

                                    III. CONCLUSION

        In sum, we conclude that a 3.800(c) motion is not an “application for State

post-conviction or other collateral review with respect to the pertinent judgment”

under § 2244(d)(2) that tolls AEDPA’s one-year limitations period. Alexander’s

one-year limitations period was not tolled while his 3.800(c) motion was pending,

and it expired on January 20, 2002 before Alexander filed a tolling 3.850 motion.

Thus, we affirm the district court’s dismissal of Alexander’s § 2254 petition as

untimely filed.

        AFFIRMED.




        15
          The Fourth Circuit also concluded that a Rule 35(b) proceeding was not “collateral”
because a Rule 35(b) motion is heard by the same judge that sentenced the defendant and
because Rule 35(b) did not contain a provision addressing the preclusive effect to be afforded the
original sentencing proceeding. See Walkowiak, 272 F.3d at 237-38.

                                               18
