                                                                      [DO NOT PUBLISH]




                 IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                            FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                              ________________________   ELEVENTH CIRCUIT
                                                             MAY 29, 2008
                                                          THOMAS K. KAHN
                                    No. 07-10786
                                                               CLERK
                              ________________________

                       D. C. Docket No. 06-01633-CV-T-17-EAJ

MICHAEL R. MURPHY,


                                                            Petitioner-Appellant,

                                           versus

SECRETARY,DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,


                                                            Respondents-Appellees.

                              ________________________

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

                                      (May 29, 2008)

Before CARNES and MARCUS, Circuit Judges, and DuBOSE,* District Judge.

       *
        Honorable Kristi K. DuBose, United States District Judge for the Southern District of
Alabama, sitting by designation.
PER CURIAM:

      In this appeal from the district court’s denial of a 28 U.S.C. § 2254 petition

on statute of limitations grounds, the parties have addressed a number of issues

involving application of § 2244(d). We need address only one of them: whether

petitioner’s second Rule 3.850 motion was “properly filed” in the Florida state

courts within the meaning of § 2244(d)(2).

      A petition dismissed in whole or part because it was untimely is not properly

filed for § 2244(d)(2) purposes. See Carey v. Saffold, 536 U.S. 214, 226, 122 S.

Ct. 2134, 2141 (2002) (if a state court held that a petition was untimely “that would

be the end of the matter, regardless of whether it also addressed the merits of the

claim, or whether its timeliness ruling was ‘entangled’ with the merits”). In

affirming Murphy’s second petition, the Second District Court of Appeals cited

five earlier DCA decisions. See Murphy v. State, 937 So. 2d 132 (Fla. 2d DCA

2006) (unpublished table decision). In one of those decisions that the state

appellate court relied on the denial of relief had been affirmed solely because the

petition was untimely, in one the denial had been affirmed solely because the

petition lacked merit, and in the other three the denial had been affirmed both

because the petition was untimely and lacked merit. See Pope v. State, 702 So. 2d

221, 223–24 (Fla. 1997); Joseph v. State, 835 So. 2d 1221, 1221–22 (Fla. 5th DCA



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2003); Brown v. State, 827 So. 2d 1054, 1055 (Fla. 2d DCA 2002); Green v. State,

765 So. 2d 825, 825 (Fla. 2d DCA 2000); Jackson v. State, 640 So. 2d 1173, 1174

(Fla. 2d DCA 1994). From that fact we conclude that the denial of Murphy’s

second Rule 3.850 motion was affirmed both because it was untimely and because

it lacked merit. That means the motion was not “properly filed” for § 2244(d)(2)

purposes. See Pace v. DiGuglielmo, 544 U.S. 408, 413–17, 125 S. Ct. 1807,

1812–14 (2005); Carey, 536 U.S. at 226–27, 122 S. Ct. at 2141.

      Because Murphy’s second Rule 3.850 motion was not properly filed, it did

not give him the benefit of the § 2244(d)(2) tolling provision. As a result, there is

a period of more than a year before Murphy filed his § 2254 petition in the district

court during which he had no properly filed state collateral petition pending to toll

the running of the limitations period. It follows that Murphy’s § 2254 petition was

due to be denied under § 2244(d)(1) regardless of how his earlier Rule 3.850

motion is treated.

      AFFIRMED.




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