           Case: 12-10441   Date Filed: 03/15/2013   Page: 1 of 5

                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-10441
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:10-cv-00517-MCR-MD



MELDON RICH,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                      ________________________

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

                             (March 15, 2013)

Before HULL, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
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       Meldon Rich, a Florida prisoner proceeding pro se, appeals the dismissal of

his 28 U.S.C. § 2254 federal habeas petition as time-barred under the

Antiterrorism and Effective Death Penalty Act (AEDPA). We granted Rich’s

motion for a certificate of appealability (COA) as to the following issue: Whether

the district court erred in finding that Rich’s 28 U.S.C. § 2254 habeas corpus

petition was time-barred based on its finding that Rich’s September 18, 2008,

emergency petition for habeas corpus was not properly filed and did not toll the

one-year time limitation for filing a habeas corpus petition.1

       We review a district court’s dismissal of a state prisoner’s § 2254 petition as

time-barred de novo. Gorby v. McNeil, 530 F.3d 1363, 1366 (11th Cir. 2008). We

review the district court’s factual findings for clear error and “must affirm the

court’s factual findings unless the record lacks substantial evidence to support the

court’s determinations.” Clark v. Crosby, 335 F.3d 1303, 1307 (11th Cir. 2003)

(quotations omitted).

       The AEDPA provides for a one-year statute of limitations for state prisoners

wishing to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The limitation

period begins to run from the last of four different triggering events, the relevant


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          The parties do not dispute that the issue of whether Rich’s § 2254 petition was timely turns
on whether his September 2008 petition was “properly filed” so as to toll the AEDPA’s one-year
statute of limitations.

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one in this case being “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 statute also provides that 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 under this subsection.” Id. § 2244(d)(2).

      In Artuz v. Bennett, 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.” 531 U.S. 4, 8 (2000) (emphasis in

original). The Artuz Court explained that the laws and rules governing filings

“usually prescribe, for example, the form of the document, the time limits upon its

delivery, the court and office in which it must be lodged, and the requisite filing

fee.” Id

      “Under Florida law, an individual convicted of a noncapital crime must,

with limited exceptions, file a collateral post-conviction challenge to his

conviction and sentence via a Rule 3.850 motion rather than a habeas corpus

petition.” Thompson v. Sec’y, Dep’t of Corrs., 595 F.3d 1233, 1236-37; Fla. R.

Crim. P. 3.850(l). Rule 3.850(b) establishes a two-year statute of limitations with

certain exceptions. Fla. R. Crim. P. 3.850(b).

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      Florida’s First District Court of Appeal rejected Rich’s habeas petition,

stating:

      Rich filed an emergency petition for a writ of habeas corpus in the
      circuit court of Escambia County on September 22, 2008. A petition
      for a writ of habeas corpus generally may not be used to collaterally
      attack a conviction or sentence. Instead, a collateral challenge to a
      judgment of conviction and sentence must be raised in a motion filed
      under rule 3.850, Florida Rules of Criminal Procedure, and not in a
      petition for a writ of habeas corpus. See Baker v. State, 878 So. 2d
      1236 (Fla. 2004). Rich has already sought relief pursuant to rule
      3.850, and the merits of this petition were considered by a circuit
      court. Thus, even if the habeas petition were treated as a motion
      under rule 3.850, it would be impermissible as successive, Hutto v.
      State, 981 So. 2d 1236 (Fla. 1st DCA 2008), and as untimely, since
      Rich’s convictions for murder and sexual battery became final in
      2001. Rule 3.850(b) (imposing a two-year window of time to file a
      motion for post-conviction relief in a non-capital case).

Rich v. State, Case No. 1D08-5976 at 2 (Fla. 1st DCA Sept. 10, 2009) (footnote

omitted).

      The district court did not err in determining that Rich’s 2008 petition was

not “properly filed” within the meaning of 28 U.S.C. § 2244(d)(2). The Florida

First District Court of Appeal first concluded that although Rich styled his motion

as an “Emergency Petition for Writ of Habeas Corpus,” it was a collateral

challenge to a judgment of conviction which must be raised in a Florida Rule of

Criminal Procedure 3.850 motion. The First District Court of Appeal then

determined that even if his petition were construed as a Rule 3.850 motion, it was

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successive and untimely. Although Rich argues that the claim raised in his

petition qualified for an exception to Florida’s time requirements under Rule

3.850, “[w]hen a postconviction petition is untimely under state law, that is the

end of the matter for purposes of § 2244(d)(2).” Pace v. DeGuglielmo, 544 U.S.

408, 414 (2005). Thus, Rich’s September 2008 petition did not toll the one-year

statute of limitations under 28 U.S.C. § 2244(d)(1) and the district court did not err

in dismissing the § 2254 petition as time-barred.

      AFFIRMED.




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