David Moore, Jr. v. Secretary, FL DOC, et al

Filing

Opinion issued by court as to Appellant David Lee Moore, Jr.. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-12262

Date Filed: 07/01/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12262
Non-Argument Calendar
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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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Date Filed: 07/01/2016

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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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