                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           JANUARY 12, 2010
                             No. 09-12100                    JOHN P. LEY
                         Non-Argument Calendar              ACTING CLERK
                       ________________________

               D. C. Docket No. 07-01461-CV-ORL-31-DAB

MICHAEL DEAN,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,


                                                       Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (January 12, 2010)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Michael Dean, a Florida state prisoner proceeding pro se, appeals the district

court’s dismissal with prejudice of his 28 U.S.C. § 2254 petition for a writ of

habeas corpus. The district court found Dean’s petition to be untimely under the

one-year statute of limitations in 28 U.S.C. § 2244(d)(1). After review, we vacate

the district court’s dismissal of Dean’s § 2254 petition and remand for further

proceedings.

                                 I. BACKGROUND

A.    2002 State Convictions

      On November 16, 2001, a Florida jury found Dean guilty of two counts of

robbery with a deadly weapon, one count of attempted robbery with a deadly

weapon, and one count of fleeing or attempting to elude a law enforcement officer

with lights and siren activated. The Florida circuit court sentenced Dean to life

imprisonment. Dean appealed his convictions and sentence to the Florida Fifth

District Court of Appeal, which summarily affirmed on November 19, 2002. The

ninety-day period for Dean to file a petition for a writ of certiorari in the United

States Supreme Court expired February 17, 2003. Without a tolling event, Dean’s

time for filing a § 2254 petition expired on February 17, 2004.

B.    State Collateral Rule 3.800(a) Proceeding

      This appeal concerns only Dean’s Florida Rule of Criminal Procedure



                                           2
3.800(a) “motion to correct illegal sentence” and whether it tolled the statute of

limitations for filing Dean’s § 2254 petition.1 Dean avers he put his Rule 3.800(a)

motion in the hands of prison officials for mailing to the Florida circuit court on

June 24, 2003. Dean has filed a copy of the motion that contains a certificate of

service signed by Dean and dated June 24, 2003, in which Dean declared under

penalty of perjury “that this motion to correct illegal sentence was delivered to jail

officials for mailing on June 24th, 2003.” The Rule 3.800(a) motion does not

contain a prison mail stamp.

       Under Florida’s inmate “mailbox rule,” Florida courts “will presume that a

legal document submitted by an inmate is timely filed if it contains a certificate of

service showing that the pleading was placed in the hands of prison or jail officials

for mailing on a particular date, if . . . the pleading would be timely filed if it had

been received and file-stamped by the Court on that particular date.” Thompson v.

State, 761 So. 2d 324, 326 (Fla. 2000) (emphasis added). Once the inmate meets

his burden, the presumption of timely filing “shift[s] the burden to the State to



       1
         Dean filed two other state post-conviction motions that do not affect the timeliness of
Dean’s § 2254 petition. On December 1, 2004, Dean filed in the Florida circuit court a Rule
3.850 motion. The Florida circuit court denied Dean’s Rule 3.850 motion on March 3, 2006, and
denied Dean’s motion for rehearing on March 22, 2006. Dean appealed, and on August 8, 2006,
the Florida Fifth District Court of Appeal summarily affirmed.
        On December 6, 2004, Dean also filed in the Florida Fifth District Court of Appeal a
habeas corpus petition alleging ineffective assistance of counsel during his direct appeal. On
February 4, 2005, the Florida Fifth District Court of Appeal summarily denied the petition.

                                               3
prove that the document was not timely placed in prison officials’ hands for

mailing.” Id. Pursuant to Florida’s mailbox rule, Dean contends his Rule 3.800(a)

motion should be deemed filed as of June 24, 2003. See Griffin v. Sistuenck, 816

So. 2d 600, 601 (Fla. 2002) (“Under the mailbox rule, a notice is deemed filed

when it is delivered to prison authorities for mailing.”).

       During 2003 to 2006, there was no ruling on Dean’s Rule 3.800(a) motion

that he avers he gave to prison officials on June 24, 2003. Dean has filed copies of

three “letters of inquiry,” dated August 14, 2003; October 5, 2004; and August 28,

2006, that Dean allegedly sent to the Florida circuit court to inquire as to the status

of his Rule 3.800(a) motion.

       Ultimately, on September 29, 2006, Dean filed in the Florida circuit court a

pleading entitled “Express and Specific Demand for Performance.” In this

pleading, Dean requested that the Florida circuit court rule on his pending Rule

3.800(a) motion to correct illegal sentence. Dean alleged that his Rule 3.800(a)

motion was deemed filed on June 24, 2003 pursuant to Florida’s mailbox rule, and

that more than three years had passed without any ruling on the motion. Dean

attached a copy of the Rule 3.800(a) motion, which contained the June 24, 2003

certificate of service, to his pleading.

       On November 1, 2006, the Florida circuit court issued an order striking



                                           4
Dean’s “Express and Specific Demand for Performance” because “neither the case

files nor the Clerk’s computer contains any indication that Defendant ever filed

such a [Rule 3.800(a)] motion” and “there are currently no pending matters before

the Court for which Defendant’s present demand could properly be considered.”

      On November 13, 2006, Dean moved the Florida circuit court to accept his

Rule 3.800(a) motion nunc pro tunc as of June 24, 2003. Dean again argued that

the certificate of service on his Rule 3.800(a) motion established a filing date of

June 24, 2003, pursuant to Florida’s mailbox rule.

      On December 18, 2006, the Florida circuit court – without ordering or

receiving a response from the State – denied Dean’s motion to accept his Rule

3.800(a) motion, which was actually received by the court only on November 22,

2006, as filed with the court nunc pro tunc as of June 24, 2003. The Florida circuit

court concluded that because Rule 3.800(a) motions “are not subject to any time

constraints, and may even be filed many years after the judgment and sentence

becomes final, the Court accepts Defendant’s Motion to Correct Illegal Sentence,

the instant Motion, as properly filed November 22, 2006” with the court. The

Florida circuit court pointed out that there was “no date stamp from any corrections

facility indicating the date it was provided to corrections officials for mailing,” and

that the “only date the motion contains is Defendant’s handwritten date.” The



                                           5
Florida circuit court’s order made no mention of Florida’s mailbox rule, which

focuses on the certificate of service.

       After accepting Dean’s Rule 3.800(a) motion as properly filed on November

22, 2006 with the court, the Florida circuit court then turned to the merits of

Dean’s Rule 3.800(a) motion. The Florida circuit court denied the Rule 3.800(a)

motion on the merits. Dean appealed, and on March 20, 2007, the Florida Fifth

District Court of Appeal summarily affirmed. Dean v. State, 951 So. 2d 853 (Fla.

Dist. Ct. App. 2007) (table). The mandate issued on May 21, 2007.

C.     Federal Habeas Proceedings

       On September 7, 2007, Dean filed in the United States District Court for the

Middle District of Florida a § 2254 petition for a writ of habeas corpus. The State

moved to dismiss Dean’s petition as barred by 28 U.S.C. § 2244(d)’s one-year

statute of limitations.2 Dean’s response asserted, inter alia, that for purposes of

§ 2244(d), his Rule 3.800(a) motion should be deemed “properly filed” on June 24,

2003 under the Florida mailbox rule, and that it therefore tolled the federal one-

year statute of limitations. Dean also filed his three letters to the Florida circuit


       2
         The State argued that the one-year limitations period expired on February 17, 2004, one
year after Dean’s judgment became final by the expiration of the time for seeking certiorari
review; that Dean’s Rule 3.850 motion did not toll the statute of limitations because it was filed
after the limitations period expired; and that Dean’s Rule 3.800(a) motion did not toll the statute
of limitations because the Florida circuit court determined it was filed on November 22, 2006
instead of June 24, 2003.

                                                 6
court inquiring about the status of his Rule 3.800(a) motion.

       The district court concluded that Dean’s § 2254 petition was untimely

because it was filed in 2007 – after the limitations period expired on February 17,

2004 – and Dean’s Rule 3.800(a) motion did not toll the limitations period. As to

the latter finding, the district court relied both on the Florida circuit court’s refusal

to file Dean’s Rule 3.800(a) motion nunc pro tunc as of June 24, 2003, as well as

what it found to be a lack of diligence by Dean in following up on the status of his

Rule 3.800(a) motion:3

       [G]iven the state court’s explicit finding that Petitioner’s Rule
       3.800(a) motion was not filed until November of 2006 and the
       circumstances surrounding Petitioner’s alleged delivery of his Rule
       3.800(a) motion to prison officials, including his lack of diligence in
       following up on the status of the motion, the Court concludes that
       Petitioner’s Rule 3.800(a) motion was not “properly filed” on June 24,
       2003.

The district court dismissed Dean’s § 2254 petition with prejudice. This Court

granted Dean a certificate of appealability as to “[w]hether the district court erred

by finding that Dean’s petition for a writ of habeas corpus was untimely.”4



       3
        The district court acknowledged that the diligence requirement it applied to Dean was
borrowed from a case, Allen v. Culliver, 471 F.3d 1196, 1198 (11th Cir. 2006), that applied the
federal mailbox rule, not Florida’s, and that “it is not clear whether Allen is applicable in
determining whether a legal document was filed in a state court.”
       4
        Our review is de novo. See Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (“We
review de novo the district court’s determination that the petition for federal habeas corpus relief
was time-barred under section 2244(d).”).

                                                 7
                                   II. DISCUSSION

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

established a one-year statute of limitations for filing a federal habeas corpus

petition. 28 U.S.C. § 2244(d)(1); Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.

Ct. 1807, 1810 (2005). This one-year period begins on the latest of four dates. 28

U.S.C. § 2244(d)(1). The one that applies here is “the date on which the judgment

[being challenged] became final by the conclusion of direct review or the

expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). However,

“[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.” Id. §

2244(d)(2). But once the limitations period expires, no state collateral proceedings

filed thereafter will toll the statute of limitations, because there is no longer

anything left to toll. Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004).

      The parties agree that the AEDPA limitations period began to run for Dean

on February 17, 2003. Thus, unless the period was tolled, it expired on February

17, 2004. The parties do not dispute that Dean’s Rule 3.800(a) motion qualifies as

an “application for State post-conviction or other collateral review” under §

2244(d)(2). The issue is whether, for purposes of § 2244(d)(2)’s calculations,



                                            8
Dean’s Rule 3.800(a) motion was “properly filed” on June 24, 2003 or November

22, 2006. See 28 U.S.C. § 2244(d)(2). If the former date applies, then Dean’s §

2254 petition was timely.5 If the latter date applies, Dean’s § 2254 is barred by

AEDPA’s statute of limitations.

       In determining whether – or when – a state court pleading was “properly

filed” for purposes of § 2244(d)(2), we look to state procedural rules. Wade v.

Battle, 379 F.3d 1254, 1259-60 (11th Cir. 2004). In Artuz v. Bennett, 531 U.S. 4,

8, 121 S. Ct. 361, 364 (2000), the Supreme Court stated that “an application is

‘properly filed’ when its delivery and acceptance are in compliance with the

applicable laws and rules governing filings.” (Emphasis in original).

       Under Florida law, there is no time limit for filing Rule 3.800(a) motions.

See Fla. R. Crim. P. 3.800(a) (providing that, once the time for filing a Rule

3.800(b)(1) motion to correct sentencing error has expired, a party may file a Rule

3.800(a) motion to correct an illegal sentence “at any time”). And the Florida


       5
         Dean’s convictions became final on February 17, 2003. If Dean’s Rule 3.800(a) motion
was properly filed as of June 24, 2003, then 127 days of Dean’s AEDPA limitations period had
run until it was tolled, and the tolling continued until May 21, 2007, the date the Florida Fifth
District Court of Appeal issued its mandate following its affirmance of the Florida circuit court’s
denial of Dean’s Rule 3.800(a) motion. See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir.
2000) (concluding that, in Florida, postconviction motions remain pending for purposes of
§ 2244(d)(2) until issuance of mandate by Florida appellate court). From May 21, 2007 until
Dean filed his § 2254 petition on September 7, 2007, another 109 days ran. Thus, if Dean’s Rule
3.800(a) motion was properly filed on June 24, 2003, then only 236 days of Dean’s limitations
period ran between the date his convictions became final and the date he filed his § 2254
petition, which is well within the one-year limit.

                                                 9
courts accepted and ruled on the merits of Dean’s Rule 3.800(a) motion. Thus,

there is no question that Dean’s motion was properly filed under Florida law. In

this case, the question is what date of filing should this Court use for purposes of

applying AEDPA’s statute of limitations. More specifically, should we apply

Florida’s mailbox rule and use the June 24, 2003 date that is on the certificate of

service and on which Dean avers he gave his Rule 3.800(a) motion to prison

officials, or should we use the November 22, 2006 date based on the Florida circuit

court’s refusal to grant Dean nunc pro tunc status and accept his Rule 3.800(a)

motion as received by the court on June 24, 2003.

      Here, according to Florida’s mailbox rule, Dean’s Rule 3.800(a) is presumed

to be timely filed as of June 24, 2003, because Dean’s motion “contain[ed] a

certificate of service showing that the pleading was placed in the hands of prison or

jail officials for mailing on [June 24, 2003], [and] the pleading would be timely

filed if it had been received and file-stamped by the Court on that particular date.”

Thompson, 761 So. 2d at 326.

      The Florida circuit court’s order never mentioned the mailbox rule, nor did it

have to. It was not necessary for the Florida circuit court to address the mailbox

rule or to grant Dean nunc pro tunc acceptance of his Rule 3.800(a) motion

because for purposes of the state court proceeding, Dean’s Rule 3.800(a) motion



                                          10
was timely even if received by the court only on November 22, 2006. But none of

that changes the fact that for purposes of applying § 2244(d)(2) statutory tolling,

where the Florida mailbox rule does come into play, Dean’s Rule 3.800(a) motion

is presumed to have been properly filed as of June 24, 2003.6

       The State argues that the Florida circuit court made a factual finding that

Dean’s Rule 3.800(a) motion was not filed until November 22, 2006, that this

factual finding is presumed correct, and that Dean has not rebutted this finding

with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (stating that “a

determination of a factual issue made by a State court shall be presumed to be

correct” and the petitioner has “the burden of rebutting the presumption of

correctness by clear and convincing evidence”). The State’s characterization of the

Florida circuit court’s order is incorrect. The Florida circuit court made no factual

finding. Instead, it merely reached the legal conclusion that Dean was not entitled

to nunc pro tunc acceptance of his Rule 3.800(a) motion. As the Florida circuit

court stated, “Defendant seeks to have the Court accept his motion to correct illegal

sentence as filed June 24, 2003. This, the Court cannot do.”

       More importantly, this is not a case where the state court refused to consider


       6
        We also find that the district court’s importation of a diligence requirement into the
“properly filed” analysis, under these circumstances, is misplaced. Florida’s mailbox rule does
not contain any diligence requirement and, as noted above, we look to state law in determining
whether a pleading was “properly filed.” Wade, 379 F.3d at 1260.

                                               11
the petitioner’s state collateral petition, either because of untimeliness or any other

reason. The Florida circuit court, after stating that it would not accord Dean’s Rule

3.800(a) motion nunc pro tunc status, considered and denied the Rule 3.800(a)

motion on the merits. Again, whether Dean’s Rule 3.800(a) motion was filed on

June 23, 2004 or November 22, 2006 did not matter, as the Florida circuit court

noted in its order denying Dean’s motion. In sum, while Dean’s Rule 3.800(a)

motion was properly filed as a Rule 3.800(a) motion on November 22, 2006

because no Florida statute of limitations applied, it was also properly filed as of

June 24, 2003 for purposes of § 2244(d) because of Florida’s mailbox rule.

                                 III. CONCLUSION

      For the reasons set forth above, we vacate the district court’s dismissal of

Dean’s 28 U.S.C. § 2254 petition and remand for further proceedings consistent

with this opinion. Upon remand, the State should be given the opportunity, if it

wishes, to try to overcome the presumption that Dean’s Rule 3.800(a) motion was

timely filed as of June 24, 2003 by showing that the motion was not timely placed

into prison officials’ hands for mailing on that date.

      VACATED AND REMANDED.




                                           12
