[PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                    FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             JUNE 19 2000
                      ________________________
                                                          THOMAS K. KAHN
                                                               CLERK
                            No. 99-10110
                        Non-Argument Calendar
                      ________________________

                 D. C. Docket No. 99-00201-CIV-T-26F

JOHN T. HEPBURN,
                                                         Petitioner-Appellant,

                                 versus

MICHAEL W. MOORE,
ROBERT A. BUTTERWORTH,
Attorney General of the
State of Florida,
                                                      Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________
                            (June 19, 2000)


Before EDMONDSON, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Appellant John T. Hepburn filed a pro se 28 U.S.C. § 2254 habeas corpus

petition alleging his Sixth and Fourteenth Amendment rights were violated when he

was denied counsel during re-sentencing on state burglary and assault charges. The

district court dismissed his petition, finding it was time-barred under the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214 (1996). We conclude the district court erred in determining Appellant’s

challenge to his resentencing hearing was barred by the AEDPA’s statute of

limitations. We therefore vacate and remand.

      We review questions of law presented in a § 2254 petition de novo. See Freund

v. Butterworth, 

, 861 (11th Cir.) (en banc), cert. denied. 

(1999). The district court’s interpretation and application of a statute of limitations

is a question of law that is subject to de novo review. See United States v. Gilbert,

, 1453 (11th Cir. 1998).

      The issue presented in this case is whether the statute of limitations for a habeas

petition challenging a resentencing court’s judgment begins to run from the date of the

judgment of the resentencing hearing, or whether the limitations period should relate

back to the date of the judgment of the original conviction. The plain meaning of the

statute supports the conclusion that the statute of limitations runs from the date of the

resentencing judgment and not the date of the original judgment. Under the AEDPA,


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the statute of limitations is calculated 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 judgment Appellant seeks to challenge is

the judgment at resentencing. The statute of limitations therefore began to run on

October 23, 1998, the date the resentencing order became final by the conclusion of

direct review.

      This conclusion is supported by the analysis used in cases concerning the

impact of resentencing on whether a petition is considered second or successive under

the AEDPA. While this case does not involve a second or successive petition, the

courts’ reasoning is persuasive here. Every circuit that has addressed the issue has

agreed that, under the AEDPA, when new claims originate at resentencing, those

claims may be brought in a subsequent habeas petition without the necessity of

obtaining permission from the circuit court before filing the petition. See, e.g., In re

Taylor, 

, 187-88 (4th Cir. 1999) (holding that when a prisoner raises new

issues that originated at resentencing, the habeas petition raising those new issues is

not second or successive); Walker v. Roth, 

, 455 (7th Cir. 1997) (holding

that a petition challenging aspects of resentencing that could not have been raised in

the first petition is not a second or successive petition within the meaning of § 2254);

Galtieri v. United States, 

, 37-38 (2d Cir. 1997) (holding that new


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petitions are not second or successive to the extent they seek to vacate a new, amended

component of the sentence); United States v. Scott, 

, 1330 (10th Cir.

1997) (holding that a prisoner’s motion to vacate was not successive where his first

motion to vacate resulted in resentencing and reinstatement of his right to direct

appeal). These cases stand for the proposition that the AEDPA cannot be interpreted

to require a prisoner to raise claims before they arise, including claims that originate

in the context of resentencing.

      Appellant, therefore, has not lost his opportunity to raise claims relating to his

resentencing in a federal habeas corpus petition. Under AEDPA’s one-year statute of

limitations, Appellant had until October 23, 1999, to file a habeas petition presenting

constitutional challenges to his resentencing. His January 26, 1999, habeas petition

therefore was timely, and the district court erred in dismissing the petition.

      VACATED AND REMANDED.




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