WYNDEL R. HALL v. SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA
No. 18-10767
United States Court of Appeals, Eleventh Circuit
April 12, 2019
D.C. Docket No. 8:15-cv-00108-CEH-AEP
Before TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.
[PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court for the Middle District of Florida
TJOFLAT, Circuit
Wyndel R. Hall, a Florida prisoner proceeding pro se, appeals from the District Court‘s dismissal of his
I.
Hall was convicted of one count of capital sexual battery1 and one count of resisting arrest or obstructing an officer without violence by a Polk County jury in 2010. He appealed, and the state appellate court affirmed his convictions and sentence on March 28, 2012. See Hall v. State, 96 So. 3d 895 (Fla. Dist. Ct. App. 2012) (unpublished table opinion). He did not petition the Supreme Court of the United States for a writ of certiorari. Thus, his conviction became final for AEDPA purposes on June 26, 2012. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that AEDPA‘s limitations period does not begin to run until the 90-day window during which petitioner could have petitioned the Supreme Court of the United States for writ of certiorari expires). Unless tolled, the AEDPA limitations period gave Hall until June 26, 2013, to file his federal habeas petition.
On April 11, 2013—289 days after the AEDPA limitations period began to run, with 76 days remaining—Hall filed a motion under Florida Rule of Criminal Procedure 3.800(a) to correct his sentence. This tolled the limitations period for the entirety of the Rule 3.800(a) proceeding, including the eventual appeal. Evans v. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846, 849 (2006) (explaining that a postconviction motion is pending for AEDPA purposes during the period between the lower court‘s adverse decision and the filing of a timely notice of appeal from that decision). The state appellate court issued its mandate on December 26, 2013, thus restarting Hall‘s AEDPA clock with 76 remaining days.
Fourteen days later on January 9, 2014, Hall filed an amended motion for postconviction relief in state court pursuant to Florida Rule of Criminal Procedure 3.850. At this point, Hall was down to 62 days. In his Rule 3.850 motion, Hall raised eight claims of ineffective assistance counsel, the same claims Hall would later raise in his
Hall filed the present
The District Court agreed with the State and dismissed Hall‘s motion. Hall timely appealed.
II.
We review de novo the dismissal of a federal habeas petition as time barred under
AEDPA establishes a one-year statute of limitations for federal habeas petitions filed by state prisoners, which runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”
As for tolling, the one-year limitations period for filing a
The issue in this case is whether Hall‘s initial Rule 3.850 motion—the one filed January 9, 2014, that was later dismissed because lacked the Rule 3.850(n)(2) certification—tolled AEDPA‘s statute of limitations. If it did, Hall had 62 days after the state court ruled on it to file his
Whether the initial Rule 3.850 motion tolled Hall‘s AEDPA clock turns on whether that motion was a “properly filed” application for state post-conviction relief.
This is not the first occasion we‘ve been asked to determine whether a petitioner‘s defective filing in a Florida collateral proceeding tolled AEDPA‘s statute of limitations. In Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000) (per curiam), we held that a state prisoner‘s deficient Rule 3.850 motion was not “properly filed” because it was missing the oath required by Rule 3.850(c). In that case, the state habeas court denied the petitioner‘s motion without prejudice to refile a timely and properly sworn motion, but the petitioner chose instead to pursue a rehearing, and eventually an appeal, of the denial. Id. at 1296-97. After he lost his appeal—more than a year after his conviction became final under AEDPA—the petitioner filed a properly sworn Rule 3.850 motion. Id. at 1297. But by then it was too late: we held that the one-year statute of limitations under AEDPA was not tolled because the original deficient motion was not properly filed. Id. at 1298.
By contrast, in Green v. Secretary, Department of Corrections, the petitioner initially filed an amended motion that did not comply with the oath requirement under Rule 3.850(c). 877 F.3d at 1246. The state court denied the motion with instructions to refile with a sufficient oath within 30 days. Id. The petitioner did so, and the state court denied his motion on the merits, which the state appellate court ultimately affirmed. Id. He later filed a
We reversed. Id. at 1249. We agreed, following Hurley, that the petitioner‘s initial Rule 3.850 motion was deficient under Florida law and, therefore, not “properly filed.” Id. at 1248. But we also recognized that “[u]nder Florida law, when a postconviction motion is stricken with leave to amend, the amended motion relates back to the date of the original filing.” Id. at 1248 (citing Bryant v. State, 901 So. 2d 810, 818 (Fla. 2005)). Thus, not only was the time between the corrected Rule 3.850 motion and its disposition tolled, but so too was the time between the original, deficient Rule 3.850 motion and the filing of its properly sworn substitute. Id. Given that additionally tolled time, the petitioner‘s
It‘s not hard to see which of these cases Hall‘s resembles. Hall‘s initial Rule 3.850 motion was improperly sworn and, for that reason, not “properly filed” under AEDPA. But the state habeas court dismissed his motion without prejudice to refile, and—rather than moving for a rehearing and pursuing an appeal, à la Hurley—Hall filed a properly sworn Rule 3.850 motion within the state court‘s prescribed time period. After Green, it‘s hard to escape the conclusion that Hall‘s corrected Rule 3.850 motion relates back to his initial, improperly sworn Rule 3.850 motion.
Of course, the State tries to escape that conclusion by arguing that Hall‘s case is distinguishable. Specifically, the State argues that in order to toll the statute of limitations under AEDPA, a state postconviction application must be both “properly filed” and “pending.” See
There are a couple problems with this argument. First, even if we assume that the AEPDA limitations period was tolled only when a motion was “pending,” as the State uses that term, Hall‘s
And that‘s a big if. The State‘s “pending” argument is based on the (admittedly intuitive) notion that a state postconviction motion is no longer “pending” once dismissed. This might be true in the abstract. See Overton, 155 F. Supp. 3d at 1269 (“Logi[c] dictates that when [a motion] [i]s stricken from the record, the motion [i]s no longer ‘pending.‘“). But this approach upends the procedure Florida courts have developed for processing facially deficient postconviction motions. In Spera v. State, 971 So. 2d 754 (Fla. 2007), the Supreme Court of Florida held that a trial court abuses its discretion when it fails to
[T]he issue here[] is whether the April 30 Motion was ‘pending’ for the purposes of
§ 2244(d)(2) during the period of time [between when] the April 30 Motion was struck (June 12, 2003) and when [petitioner‘s] July 10 Motion was filed. . . . If [petitioner‘s] April 30 Motion was not going to be considered or reviewed by the trial court because the April 30 Motion had been struck from the record, it was not ‘pending.’
Id. at 1268-69 (emphasis added) (footnote omitted).
Even if we accepted the Overton approach, it would not get the State to its desired outcome. Under Overton, Hall‘s deficient Rule 3.850 motion was “pending” from the time it was filed on January 9, 2014, to the time it was dismissed on February 14, 2014. His properly sworn Rule 3.850 motion was then filed on February 24. Hall would, therefore, only lose 10 days from his AEDPA clock, which would leave him with 52 days after the dismissal of the second Rule 3.850 motion on December 4, 2014, to file his
provide a Rule 3.850 petitioner at least one opportunity to amend his facially insufficient Rule 3.850 motion. Id. at 761. The procedure that has evolved from this holding—the eponymous ”Spera procedure“—has since been fleshed out by Florida state courts. In Nelson v. State, 977 So. 2d 710 (Fla. Dist. Ct. App. 2008), Florida‘s First District Court of Appeal explained how Spera works:
The procedure articulated in Spera allows a defendant an opportunity to amend facially insufficient postconviction claims unless the claims cannot be corrected. Spera‘s procedure applies uniformly to all insufficiently pled postconviction claims whether determined to be legally or facially insufficient. The trial court has discretion in determining the length of the defendant‘s leave to amend and Spera suggested thirty days would be reasonable.
. . .
[B]ased upon Spera and Nelson v. State, once the window of opportunity to amend expires and the defendant is unable or unwilling to cure the deficiency, the insufficient claim may be denied with prejudice.
Id. at 711 (citations omitted). Moreover, under Florida law a state court‘s order dismissing a facially insufficient postconviction motion without prejudice is not a final, appealable order. Russell v. State, 46 So. 3d 151, 151-52 (Fla. Dist. Ct. App. 2010). This rule—and the Spera procedure more generally—suggests that Florida‘s “state collateral review process is ‘in continuance‘”5 until the court issues a final
Accordingly, for the purposes of tolling under
III.
The District Court was wrong to conclude that Hall‘s
REVERSED AND REMANDED.
TJOFLAT, Circuit Judge, specially concurring:
I write separately to draw the Court‘s attention to our practice of incorrectly applying Bond v. Moore to Florida habeas petitioners. The District Court in this case concluded that Hall‘s conviction became final for AEDPA purposes on June 26, 2012—that is, 90 days after the Florida District Court of Appeal affirmed his conviction. This conclusion rested on Bond v. Moore, 309 F.3d 770 (11th Cir. 2002), where this Court held that AEDPA‘s limitations period does not begin to run until the expiration of the 90-day window in which the petitioner could have petitioned the Supreme Court of the United States for a writ of certiorari on direct review. Id. at 774.
But in this case, unlike in Bond,1 Hall never sought review of his conviction by the Florida Supreme Court. This means that Hall was not entitled to the 90-day extension Bond requires because the decision of the Florida District Court of Appeal was not a “[f]inal judgment[] or decree[] rendered by the highest court of a State in which a decision could be had.”
For the reasons explained in Pugh v. Smith, this practice makes little sense. Section 2244(d)(1) says that AEDPA‘s one-year limitations period “shall run,” in circumstances like these, “from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”
Neither the District Court nor the State raised this issue.3 And because AEDPA‘s statute of limitations is not jurisdictional, San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (citation omitted), the State waived this argument, see Sec‘y, U.S. Dep‘t of Labor v. Preston, 873 F.3d 877, 881 (11th Cir. 2017) (noting that “waiver is permissible” when a statute of limitations does not “limit[] courts’ subject matter jurisdiction“) (citation omitted). But, when the appropriate case comes along, we should examine whether our blanket application of Bond is consistent with Pugh and, more generally, the text of