            Case: 14-13202   Date Filed: 11/06/2015   Page: 1 of 3


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13202
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:14-cv-80763-DMM



JOSE PEREZ ORTIZ,

                                                           Petitioner-Appellant,

                                 versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                        Respondents-Appellees.

                       ________________________

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

                             (November 6, 2015)

Before TJOFLAT, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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      Jose Perez Ortiz, a Florida state prisoner proceeding pro se, appeals the

dismissal of his 28 U.S.C. § 2254 habeas corpus petition. This court granted a

certificate of appealability on one issue: whether the District Court erred in

dismissing Ortiz’s petition as time-barred based on an incorrect calculation of the

date his convictions became final under 28 U.S.C. § 2244(d)(1)(A).

      Under 28 U.S.C. § 2244, a one-year limitation period shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to a

judgment of a state court. 28 U.S.C. § 2244(d)(1). The limitation period shall run

from the latest of, among other dates, “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 Supreme Court, in Clay v. United States,

stated that when a petitioner challenges his conviction on the merits on direct

review, “[f]inality attaches when this Court . . . denies a petition for a writ of

certiorari.” Clay v. United States, 537 U.S. 522, 527, 123 S. Ct. 1072, 1076, 155

L. Ed. 2d 88 (2003); see also Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235, 1237

(11th Cir. 2004).

      As Ortiz argues and the State concedes on appeal, the District Court erred in

its calculation of the date Ortiz’s convictions became final. The court calculated

finality from the date the time for filing a certiorari petition expired, but Ortiz in

fact filed a certiorari petition, which the United States Supreme Court denied on


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January 8, 2007, six days after the time for filing a certiorari petition would have

expired. Clay, 537 U.S. at 527, 123 S. Ct. at 1076; Ortiz v. Florida, 549 U.S.

1129, 127 S. Ct. 965, 166 L. Ed. 2d 733 (2007). Based on a conviction finality

date of January 8, 2007, the limitations period ran for a total of 363 untolled days

as of August 29, 2013, the date Ortiz alleged he filed his § 2254 petition by

delivering it to prison officials for mailing.

      However, there is uncertainty in the record as to when exactly Ortiz filed his

§ 2254 petition, which was not docketed in the District Court until May 2014, was

filed in incomplete form, and contained only a handwritten notation about delivery

to prison officials rather than an official stamp. Further, the court made no finding

as to whether the petition was filed, as it merely assumed, without deciding, that it

was filed on the date Ortiz alleged. Accordingly, we vacate the dismissal of

Ortiz’s § 2254 petition and remand for further proceedings, including a

determination of whether Ortiz’s petition was in fact timely based on the correct

date his convictions became final.

      VACATED AND REMANDED.




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