Dirk Williams v. Secretary, Florida Department, et al

Filing

Opinion issued by court as to Appellant Dirk Williams. Decision: Reversed 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: 14-14917

Date Filed: 02/02/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14917
Non-Argument Calendar
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D.C. Docket No. 6:11-cv-01809-JA-KRS

DIRK WILLIAMS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 2, 2017)
Before TJOFLAT, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Dirk Williams, a counseled Florida prisoner, appeals the district court’s
dismissal of his habeas corpus petition under 28 U.S.C. § 2254 as untimely. A

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certificate of appealability was granted on the issue of “[w]hether the district court
erred in dismissing as time-barred Williams’s 28 U.S.C. § 2254 petition.” He
argues on appeal that the district court erred when it dismissed his petition because
it started the limitations period under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) on the day his conviction became final, instead of
the following day, as required by our precedent and Fed. R. Civ. P. 6(a)(1)(A).
The State of Florida does not contest that Williams’s petition was timely filed
under our precedent and that it is not barred by AEDPA’s statute of limitations.
We review de novo the dismissal of a federal habeas petition as time-barred
under 28 U.S.C. § 2244(d). Cole v. Warden, Ga. State Prison, 786 F.3d 1150,
1155 (11th Cir. 2014), cert. denied, 135 S. Ct. 1905 (2015).
AEDPA establishes a one-year statute of limitations for federal habeas
petitions filed by state prisoners, which runs, among other triggers, 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.” 28 U.S.C. § 2244(d)(1)(A). The
AEDPA’s limitation period is tolled while “a properly filed application for State
post-conviction or other collateral review… is pending.” 28 U.S.C. § 2244(d)(2).
A prisoner’s pleading is considered filed on the date the prisoner delivers the filing
to prison authorities for mailing to the court. Day v. Hall, 528 F.3d 1315, 1318
(11th Cir. 2008).
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Under Florida law, the Florida Supreme Court lacks jurisdiction to hear an
appeal from a per curiam affirmance of a conviction by a lower state appellate
court. Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). After the final state
court of appeals rules on a § 2254 petitioner’s conviction, the one-year limitations
period does not begin to run until the 90-day window to petition the United States
Supreme Court for a writ of certiorari expires. Bond v. Moore, 309 F.3d 770, 774
(11th Cir. 2002). A Florida state court of appeals’s order denying a rehearing on
its affirmance of the state trial court’s denial of a motion for post-conviction relief
is pending until the mandate issues. Nyland v. Moore, 216 F.3d 1264, 1267 (11th
Cir. 2000).
We calculate the one year limitations period under AEDPA using the
anniversary method, where the limitations period expires on the one-year
anniversary of the date the period begins to run. See Downs v. McNeil, 520 F.3d
1311, 1318 (11th Cir. 2008).
Fed. R. Civ. P. 6(a)(1) states that, when calculating a period of time that is
stated in days or a longer unit of time, courts should exclude the day of the event
that triggers the period. See San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir.
2011) (“[D]irect review of Petitioner’s conviction concluded on October 5,
1998…. Petitioner had until Wednesday, October 6, 1999 to file this petition.”);
Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (concluding
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that Washington’s conviction became final on October 6, 1997, and he had until
October 7, 1998 to file his § 2255 motion). In Moore v. Campbell, 344 F.3d 1313,
1319 (11th Cir. 2003), the petitioner, who was convicted and sentenced before the
enactment of AEDPA, filed his § 2254 petition on April 24, 1997. This Court
previously stated that such petitions must be filed by April 23, 1997, one year from
AEDPA’s enactment date of April 24, 1996. Id. 1319–20. However, in Moore, we
concluded that Moore’s petition was timely and the previous statement about a
April 23, 1997 deadline was dicta because under Fed. R. Civ. P. 6(a), the
limitations period did not start until the day after the triggering date of April 24,
1996. Id. at 1319–20.
Here, Williams’s petition was timely. Williams’s direct appeal to the
Florida 5th District Court of Appeal ended on July 8, 2008, when the court denied
his motion for rehearing. Because the Florida 5th District Court of Appeal
affirmed his conviction per curiam without a written opinion, he could not appeal
to the Florida Supreme Court. So, On October 6, 2008, his conviction became
final after 90 days, when his time to file a writ of certiorari to the United States
Supreme Court expired. See Jenkins, 385 So. 2d at 1359; Bond, 309 F.3d at 1318.
On that date, Williams presented his Rule 3.850 motion to the prison authorities for
mailing, and his motion tolled the time until he filed his § 2254 petition in

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November 2011. See 28 U.S.C. § 2244(d)(2); Day, 528 F.3d at 1318; Nyland, 216
F.3d at 1267.
Because Williams’s § 2254 petition was timely filed, the district court erred
in dismissing it as time-barred. We vacate and remand for further proceedings.
VACATED AND REMANDED.

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