          Case: 14-12262   Date Filed: 07/01/2016   Page: 1 of 5


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-12262
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:13-cv-14482-JEM



DAVID LEE MOORE, JR.,

                                                         Petitioner-Appellant,

                                 versus

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

                                                     Respondents-Appellees.

                     ________________________

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


                             (July 1, 2016)
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Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

      David Moore, Jr., through counsel, appeals the district court’s dismissal of

his 28 U.S.C. § 2254 habeas corpus petition as untimely. We vacate and remand

because the State of Florida did not first serve Moore with the exhibits attached to

the appendix it filed with the district court even though the state referenced those

documents in its response.

      Moore was convicted and sentenced to a thirty-year term of imprisonment in

Florida state court. More than fifteen years after his criminal proceedings

concluded, Moore filed a motion seeking post-conviction relief in Florida state

court based on ineffective assistance of counsel. The state trial court concluded

Moore’s motion was untimely and denied relief.

      Moore then filed a petition for a writ of habeas corpus in federal district

court. The magistrate judge ordered the state to show cause why the petition

should not be granted. The order required the state to file a responsive

memorandum along with a comprehensive appendix that included, among other

things, copies of all relevant state court pleadings, transcripts, briefs on direct

appeal, and post-trial motions for collateral relief.

      The state filed a response and an appendix. In the response, the state argued

that Moore was not entitled to relief because his petition was untimely and cited


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documents from the appendix it filed with the court. The certificates of service the

state filed with the district court show that it served copies of its response and a

notice of filing on Moore but never served him with the exhibits in the appendix.

      The magistrate judge issued a report and recommendation that the district

court dismiss the petition as time-barred. Moore objected that because he never

received a copy of the state’s response, he was denied the opportunity to submit

evidence to support his claims or refute the state’s arguments. The district court

overruled Moore’s objections, adopted the report and recommendation, and

dismissed the petition as time-barred. We granted a certificate of appealability on

the issue of “[w]hether the District Court’s order dismissing Mr. Moore’s § 2254

motion should be vacated in light of Rodriguez v. Florida Department of

Corrections, 748 F.3d 1073 (11th Cir. 2014).” We also appointed counsel on

Moore’s behalf. We now consider his appeal.

      The issue before us is whether district court erred by dismissing Moore’s

petition as untimely when the state failed to serve Moore with copies of the

exhibits in the state’s appendix that the state cited in response to the show-cause

order. Because the state was procedurally required to serve Moore with at least the

exhibits cited in its response, we hold that the district court erred in dismissing the

petition.




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       We have held that the state must serve a petitioner with the exhibits included

in the appendix that are cited in its answer responding to a show-cause order.

Rodriguez v. Fla. Dep’t of Corr., 748 F.3d 1073, 1075 (11th Cir. 2014). In

Rodriguez, after a Florida prisoner petitioned for a writ of habeas corpus in federal

court, the magistrate judge ordered the state to show cause why his petition should

not be granted and directed the state to file with its answer to the show-cause order

an appendix that included pleadings, transcripts, briefs, and motions from the state

court proceedings with its response. 1 Although the state answered and filed the

appendix with the district court, the state never served the petitioner with a copy of

any of the exhibits in its appendix, even though the state cited some of the exhibits

in its answer. Id. at 1074. After considering the Rules Governing Section 2254

Cases in the United States District Courts and the Federal Rules of Civil Procedure

(“Civil Rules”), we concluded that because the Civil Rules require a party to serve

“any pleading . . . on every party,” the state was required to serve its response on

the petitioner. Id. at 1076. Although the appendix was a separate document, we

held that it qualified as part of the response because the documents in the appendix

were referred to in the response and filed with the court. “Because the Civil Rules

require service of all pleadings, it follows that the exhibits to the pleading must

       1
         Although in Rodriguez the state’s response to the show-cause order was referred to as
an “answer,” the state makes no argument that the label applied to the responsive memorandum
required by the Southern District of Florida’s form show-cause order is of any consequence, nor
do we think that it is.
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also be served.” Id. Because the district court failed to enforce this procedural

requirement, we vacated and remanded so that the petitioner could have an

opportunity to amend his reply to the state’s response after receiving the missing

exhibits.

      Under Rodriguez, the state was required to serve Moore with a copy of the

exhibits in its appendix that were cited in its response. It is undisputed that the

state failed to do so. Thus, under Rodriguez, the district court erred in dismissing

Moore’s petition as untimely when the state had not served Moore with a copy of

the exhibits referenced in his response. We vacate the district court’s order

dismissing the petition and remand with instructions to the district court to direct

the state to serve Moore with the documents in the appendix to which he is

procedurally entitled and to give Moore an opportunity to reply to the state’s

answer.


      VACATED AND REMANDED.




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