              Case: 14-10581     Date Filed: 10/23/2015    Page: 1 of 11


                                                                           [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-10581
                            ________________________

                        D.C. Docket No. 2:13-cv-14192-JEM


MOISES ESPINOSA,

                                                                 Petitioner-Appellant,

                                        versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                                Respondent-Appellee.

                            ________________________

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

                                 (October 23, 2015)

Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

      The issue in this appeal is whether Moises Espinosa’s state petition for

belated appeal tolled the one-year limitation period for filing a federal petition for a

writ of habeas corpus. A jury convicted Espinosa of two counts of sexual battery
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on a child and the state intermediate appellate court affirmed. Espinosa moved for

state postconviction relief, and the state trial court dismissed his motion for failure

to state a claim. When Espinosa appealed that dismissal several months later, the

state appellate court ruled that his appeal was untimely, treated his filing as a

petition for belated appeal, Fla. R. App. P. 9.141(c), and denied it. Espinosa then

filed a federal petition for a writ of habeas corpus, which the district court

dismissed as untimely. Because Espinosa’s petition for belated appeal did not

involve “collateral review” of his conviction, it did not toll the one-year limitation

period of the Antiterrorism and Effective Death Penalty Act. 28 U.S.C. § 2244(d).

We affirm.

                                I. BACKGROUND

      A Florida jury convicted Espinosa of two counts of sexual battery on a child

under the age of 12 by a person 18 years of age or older, Fla. Stat. § 794.011(2)(a).

A judge sentenced him to consecutive life sentences. Espinosa appealed and

argued that the trial court erred when it did not allow Espinosa to impeach a

witness’s credibility with a prior inconsistent statement. The intermediate appellate

court affirmed. See Espinoza v. State, 37 So. 3d 387 (Fla. Dist. Ct. App. 2010). On

October 21, 2010, the Florida Supreme Court denied his petition for review.

Espinoza v. State, 47 So. 3d 1288 (Fla. 2010) (unpublished table decision).




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      On March 11, 2011, Espinosa filed a motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850 on the ground of newly discovered

evidence. Espinosa asserted that the victim recanted her testimony after his

conviction. On June 29, 2011, the trial court dismissed his motion without

prejudice because the motion was unsworn and failed to state valid claims.

Espinosa then filed an amended motion with an affidavit. On February 17, 2012,

the trial court dismissed the amended motion as well. The trial court granted

Espinosa a final opportunity to file a sufficient motion by May 1, 2012.

      On March 2, 2012, Espinosa filed a notice of supplemental information to

address one defect in his amended motion. The trial court dismissed the notice on

March 15, 2012, and stated that Espinosa must file a single, comprehensive motion

that was both facially and legally sufficient. On April 10, 2012, Espinosa filed a

motion to quash the order that dismissed his notice of supplemental information.

The trial court denied the motion on April 30, 2012. Espinosa did not file a second

amended motion.

      On September 13, 2012, Espinosa filed a notice of appeal from the order

denying his Rule 3.850 motion. On October 26, 2012, the appellate court

determined that Espinosa’s notice of appeal appeared to be untimely and ordered

him to file within 20 days a petition for belated appeal or a copy of a more recent

order that could be timely appealed. On November 8, 2012, Espinosa filed a

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petition for belated appeal, and on November 30, 2012, the appellate court

redesignated his earlier notice of appeal as a petition for belated appeal. On

February 6, 2013, the appellate court denied Espinosa’s petition for belated appeal.

      On May 2, 2013, Espinosa filed a federal petition for a writ of habeas

corpus, 28 U.S.C. § 2254. The district court denied Espinosa’s petition. The district

court ruled that Espinosa’s petition was untimely because 387 untolled days passed

between the date Espinosa’s conviction became final and the date he filed his

federal petition for a writ of habeas corpus. The district court ruled that Espinosa’s

petition for belated appeal did not toll the limitation period because the Florida

appellate court denied the petition. The district court issued a certificate of

appealability on the issue whether a petition for belated appeal, under Florida Rule

of Appellate Procedure 9.141(c), tolls the limitation period when the petition for

belated appeal is denied.

                            II. STANDARD OF REVIEW

      We review de novo a dismissal of a petition for a writ of habeas corpus as

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

                                 III. DISCUSSION

      The Antiterrorism and Effective Death Penalty Act provides a “1-year

period of limitation . . . [for] an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The

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period runs from the latest of four dates, including, as applies here, “the date on

which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). “The 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 . . . .” Id. § 2244(d)(2).

      There is no dispute that at least 241 days of untolled time passed between

the date Espinosa’s conviction became final and the date he filed his federal

petition. Espinosa’s conviction became final on January 19, 2011, 90 days after the

judgment of the Florida Supreme Court, when his time for filing a certiorari

petition in the United States Supreme Court expired. See Sup. Ct. R. 13.1. On

March 11, 2011, 51 untolled days later, Espinosa moved for postconviction relief

in the state trial court. The order dismissing Espinosa’s motion became final on

May 1, 2012, when Espinosa failed to file a second amended motion. Espinosa had

until May 31, 2012, to file a timely appeal. See Fla. R. App. P. 9.140(b)(3). When

he failed to do so, 105 more days of untolled time passed before Espinosa filed a

petition for belated appeal on September 13, 2012. The state appellate court denied

that petition on February 6, 2013. Then, an additional 85 days of untolled time

passed before Espinosa filed his federal habeas petition on May 2, 2013.




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      The parties dispute whether Espinosa’s petition for a belated appeal tolled

the one-year limitation period for the 146 days while it was pending. If it did, his

petition was timely. If it did not, then a total of 387 untolled days passed and

Espinosa’s federal petition came 22 days too late.

      To toll the one-year limitation period under section 2244(d)(2), a proceeding

must be a “properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2).

An application is filed “when it is delivered to, and accepted by, the appropriate

court officer for placement into the official record,” and it is properly filed “when

its delivery and acceptance are in compliance with the applicable laws and rules

governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct. 361, 363–64 (2000).

      “Collateral review” is “a judicial reexamination of a judgment or claim in a

proceeding outside of the direct review process.” Wall v. Kholi, __ U.S. __, 131 S.

Ct. 1278, 1285 (2011). In Wall v. Kholi, the Supreme Court ruled that a motion to

reduce sentence under Rhode Island law is an application for collateral review that

triggers the tolling provision of the Act. Id. at 1287. The Supreme Court reasoned

that the phrase “collateral review” does not refer only to proceedings that challenge

the “lawfulness” of a prior judgment. Id. Kholi’s motion to reduce sentence

triggered a proceeding that was both “collateral” and a “review” of the sentence,

id. at 1286–87, because it was “not part of the direct review process,” id. at 1286,

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required a judge “to determine whether a more lenient sentence is proper,” id., and

allowed that judge to “disturb the trial justice’s decision,” id. at 1285. The Court

distinguished a motion to reduce sentence from “a motion for post-conviction

discovery or a motion for appointment of counsel, which generally are not direct

requests for judicial review of a judgment and do not provide a state court with

authority to order relief from a judgment.” Id. at 1286 n.4; see also Brown v. Sec’y

for the Dep’t of Corrs., 530 F.3d 1335, 1337 (11th Cir. 2008) (holding that a post-

conviction motion for DNA testing was not an “application for post-conviction or

other collateral review” (citing 28 U.S.C. § 2244(d)(2))).

      Espinosa’s petition for belated appeal is not an “application for State post-

conviction or other collateral review with respect to the pertinent judgment,” 28

U.S.C. § 2244(d)(2). “[R]eview of a petition for belated appeal does not reach the

merits of the anticipated appeal or the validity of the order to be appealed, but

instead reviews the grounds for relieving the petitioner of his or her failure to

timely seek such an appeal.” Jones v. State, 922 So. 2d 1088, 1090 (Fla. Dist. Ct.

App. 2006). “[I]t challenges events that occur after the final order is rendered.” Id.

An appellate court decides that a petitioner is entitled to belated appeal by

considering whether his lawyer failed to file a timely appeal upon request, his

lawyer misadvised him as to the availability of review, or there were

“circumstances unrelated to [his] counsel[] . . . that were beyond the petitioner’s

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control and otherwise interfered with the petitioner’s ability to file a timely

appeal.” Fla. R. App. P. 9.141(c)(4)(F). A petitioner seeking belated appeal does

not need “to allege that the issues that would be presented on appeal are potentially

meritorious.” State v. Trowell, 739 So. 2d 77, 80 (Fla. 1999). The appellate court

considering the petition does not reexamine the underlying judgment or claim, and

a ruling on the petition cannot make “amendment[s] or improvement[s]” to the

terms of custody. Kholi, 131 S. Ct. at 1285 (quoting Kholi v. Wall, 582 F.3d 147,

153 (1st Cir. 2009)) (internal quotation mark omitted). Accordingly, a petition for

belated appeal is not an application for collateral review within the meaning of

section 2244(d).

      Our reasoning mirrors how a Florida court would treat a petition for a

belated direct appeal in determining the timeliness of a state motion for collateral

review. That is, an unsuccessful petition for belated appeal of a criminal

conviction, under Florida law, does not toll the limitation period for state collateral

review. See Jones, 922 So. 2d at 1089–90. Unlike motions for a new trial, for

rehearing, or to correct a sentence, which do toll the rendition of a final order, a

petition for belated appeal “does not challenge directly any specific ruling” in the

criminal case. Id. at 1090. In the same way, filing a petition for belated appeal of

an order denying state collateral relief does not toll the federal limitation period for

a petition for a writ of habeas corpus.

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      We reject Espinosa’s argument that if we were to hold that a petition for

belated appeal does not toll the limitation period, our ruling would conflict with the

need to exhaust state remedies. He argues that some petitioners would file federal

petitions before obtaining permission to pursue a belated appeal under state law.

But the Supreme Court has instructed courts to balance the interest in “exhaustion

of state remedies” with “the interest in the finality of state court judgments.”

Duncan v. Walker, 533 U.S. 167, 178, 121 S. Ct. 2120, 2127 (2001); see also

Bridges v. Johnson, 284 F.3d 1201, 1203 (11th Cir. 2002). “Congress’s overriding

purpose in enacting AEDPA . . . [was] ‘to achieve finality in criminal cases, both

federal and state.’” Murphy v. United States, 634 F.3d 1303, 1309 (11th Cir. 2011)

(quoting Jones v. United States, 304 F.3d 1035, 1039 (11th Cir. 2002)). Espinosa’s

proffered interpretation of the Act would allow a state prisoner to “toll the statute

of limitations at will simply by filing [petitions to file] untimely state

postconviction petitions.” Pace v. DiGuglielmo, 544 U.S. 408, 413, 125 S. Ct.

1807, 1812 (2005). “This would turn § 2244(d)(2) into a de facto extension

mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive

delay.” Id.

      Our opinion in Moore v. Crosby, 321 F.3d 1377 (11th Cir. 2003), also does

not support Espinosa’s argument. In Moore, we considered a different issue:

whether a petition for belated appeal, which was filed after the one-year limitation

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period had already expired and was later granted by the state appellate court, could

retroactively toll the one-year limitation period. Id. at 1379–80. We held that “an

out-of-time appeal does not revive the time during which no state collateral

petition was pending.” Id. at 1380. We discussed a decision of the Fifth Circuit that

had reached a similar holding, and we stated that “the Fifth Circuit concluded

that after the appeal period lapsed, an application ceased to be pending, but that a

subsequently properly filed application entitled the petitioner to additional tolling

beginning at the time of the proper filing.” Id. (citing Melancon v. Kaylo, 259 F.3d

401, 407 (5th Cir. 2001)). But the Fifth Circuit described a procedural posture

materially different from Espinosa’s appeal: the state court had granted an

untimely application and then considered the merits of the underlying claim for

collateral relief. See Melancon, 259 F.3d at 403, 407.

      In other jurisdictions, motions to appeal out of time have tolled the one-year

limitation period when, unlike here, the state courts permitted the untimely

applications. See, e.g., Gibson v. Klinger, 232 F.3d 799, 802–03 (10th Cir. 2000);

Fernandez v. Sternes, 227 F.3d 977 (7th Cir. 2000). In Fernandez v. Sternes, the

Seventh Circuit addressed the tolling effect of a “motion for permission to file a

late petition for leave to appeal” that was granted and “treated as a petition for

leave to appeal.” 227 F.3d at 979. The Seventh Circuit concluded that the motion




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tolled the federal limitation period because the state court “excused the

untimeliness as a matter of state law and ruled on the merits.” Id. at 981.

      When the state appellate court denied Espinosa’s petition for belated appeal,

it never considered the merits of his underlying claims. Espinosa’s petition for

belated appeal never triggered a reexamination of his conviction or sentence and,

as a result, failed to toll the federal limitation period. Espinosa’s federal habeas

petition was untimely.

                                IV. CONCLUSION

      We AFFIRM the dismissal of Espinosa’s petition.




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