Filed: Feb. 24, 2000
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 02/24/2000 THOMAS K. KAHN No. 98-4218 CLERK _ District Court Docket No. 97-01978-CV-ASG JEFFREY WEEKLY, Petitioner-Appellant, versus MICHAEL W. MOORE, DEPARTMENT OF CORRECTIONS, et al., Respondents-Appellees. - Appeal from the United States District Court for the Southern District of Florida - (February 24, 2000) Before BIRCH and BARKETT, Circuit Judges, and MILLS*, Senior Distri
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 02/24/2000 THOMAS K. KAHN No. 98-4218 CLERK _ District Court Docket No. 97-01978-CV-ASG JEFFREY WEEKLY, Petitioner-Appellant, versus MICHAEL W. MOORE, DEPARTMENT OF CORRECTIONS, et al., Respondents-Appellees. - Appeal from the United States District Court for the Southern District of Florida - (February 24, 2000) Before BIRCH and BARKETT, Circuit Judges, and MILLS*, Senior Distric..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_________________ ELEVENTH CIRCUIT
02/24/2000
THOMAS K. KAHN
No. 98-4218 CLERK
_________________
District Court Docket No. 97-01978-CV-ASG
JEFFREY WEEKLY,
Petitioner-Appellant,
versus
MICHAEL W. MOORE,
DEPARTMENT OF CORRECTIONS, et al.,
Respondents-Appellees.
----------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
----------------------------------------------
(February 24, 2000)
Before BIRCH and BARKETT, Circuit Judges, and MILLS*, Senior District Judge.
RICHARD MILLS, Senior District Judge:
*
Honorable Richard Mills, Senior U. S. District Judge for the Central District of Illinois,
sitting by designation.
Weekly appeals the district court’s dismissal of his habeas petition on the
grounds that it was not timely filed. We affirm the district court.
BACKGROUND
On April 28, 1988, Weekly was convicted by a jury of sexual battery,
kidnapping and aggravated battery. After re-sentencing, his conviction became final
in 1991.
Weekly then began filing serial motions for relief in the state trial court. In
total, Weekly filed three post-conviction motions in the state trial court pursuant to
Florida Rule of Criminal Procedure 3.850.
In the first motion, filed on December 17, 1991, he alleged ineffective
assistance of counsel and the discovery of new evidence regarding his confession. An
evidentiary hearing was held and the motion was denied. On May 24, 1994, the trial
court’s judgment was affirmed on direct appeal. On October 6, 1994 the Supreme
Court of Florida denied Appellant’s petition for review.
The second post conviction motion was filed in the state trial court on
November 29, 1995, raising the same claims as the first petition, and adding a third
allegation that the state had used false testimony during a suppression hearing. This
motion was denied as a successive petition and on June 26, 1996, the District Court
of Appeals of Florida affirmed the state trial court’s dismissal of the motion.
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On March 28, 1996 -- while the appeal of the second motion was still pending --
Weekly filed yet a third post-conviction motion, claiming that his counsel on his first
motion for post-conviction relief was ineffective for failing to raise all the ways in
which Weekly’s trial counsel had allegedly been ineffective. On September 6, 1996,
this motion also was denied as a successive petition. The District Court of Appeals
of Florida affirmed the denial on April 16, 1997.
On June 25, 1997, Weekly filed a petition pursuant to 28 U.S.C.
§ 2254 in federal district court. The Magistrate Judge recommended that the petition
be dismissed as untimely under the one year limitations period contained in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)
and (d)(2). The District Judge adopted the Magistrate Judge’s recommendation and
denied the petition on January 29, 1998. The District Judge also denied Weekly’s
motion for a certificate of appealability. This Court allowed the appeal to go forward
on the sole issue of the timeliness of Weekly’s petition.
Thus, the sole issue here is whether Weekly’s second or third post-conviction
motions were “properly filed” even though they were dismissed as successive motions
by the state court.
ANALYSIS
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The AEDPA added a one year statute of limitations to federal habeas corpus
actions. It specifically provides that the limitation period for the filing of such
actions begins to run on “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). Further, a tolling provision provides that “[t]he time
during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this subsection.” 28 U.S.C.
§2244(d)(2).
For prisoners whose convictions became final prior to April 24, 1996, the
effective date of the AEDPA, a one-year grace period extends the deadline for
filing such petitions to April 23, 1997. See Wilcox v. Florida Dep’t of Corrections,
158 F3d 1209, 1211 (7th Cir. 1998)(citing Goodman v. United States, 151 F.3d
1335 (11th Cir.1998)). Thus, unless the time period is tolled, Weekly’s federal
habeas petition would be untimely if filed after April 23, 1997.
Weekly argues that the time during which his second and third post-
conviction motions were pending should toll the one year limitations period for the
filing of his federal habeas petition. The second petition was pending until the
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appeal was denied on June 26, 1996. Thus, if the second petition was “properly
filed” Weekly had until June 25, 1997 to file his federal habeas petition.
Weekly’s third petition was pending for more than a year after the effective
date of the AEDPA. If this petition were “properly filed” Weekly would have until
April 15, 1998 to file his federal habeas petition. Thus, since Weekly filed his
federal petition on June 25, 1997, if either the second or third Rule 3.850 motions
was properly filed, his federal habeas petition would be timely.
The resolution of this appeal thus turns on whether a successive petition
such as Weekly’s is nonetheless a “properly filed application” under 28 U.S.C.
§2244(d)(2). The courts that have addressed the issue have reached differing
results.
The phrase “properly filed application” is not defined in the AEDPA itself
and the legislative history sheds little light on its meaning. See Villegas v.
Johnson, 184 F.3d 467, 470 (5th Cir.1999) (citing legislative history). Some courts
have construed the phrase narrowly to mean that the state post-conviction motion
or petition complies with the bare minimum of procedural requirements such as
time and place of filing. On this view, if a prisoner managed to file his state
petition within the applicable time limits and in the right court, his petition would
be “properly filed.” Sometimes, despite the lack of a clear (or any) definition of
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the phrase “properly filed application,” this construction is justified on the grounds
that the plain meaning of the phrase is so unambiguous as to compel only the
narrow interpretation. See Lovasz v. Vaughn, 134 F.3d 146, 148 (3d
Cir.1998)(“[a]fter all, Congress chose the phrase "a properly filed application," one
into which we do not read any requirement that the application be non- frivolous”);
See also
Villegas, 184 F.3d at 470 (stating reluctance to go beyond “plain meaning
of the phrase”). Courts favoring the narrow interpretation also rely on principles of
comity and on the exhaustion requirement to support their interpretation. See id at
472; See also Bennett v. Artuz,
199 F.3d 116 (2nd Cir. 1999).
Other courts, however, have interpreted the phrase “properly filed” more
broadly, in accord with the purposes of the AEDPA limitations period and the
qualification that state courts must be given the first opportunity to decide state
prisoners’ constitutional claims. For example, in Tinker v. Hanks, 172 F.3d 990,
991 (7th Cir. 1998), the Seventh Circuit held that an application for leave to file a
successive state habeas petition was not a “properly filed application” under the
AEDPA. The reasoning of the Seventh Circuit was that Congress could not have
intended to allow prisoners to extend the limitations period indefinitely by filing
repeated applications for leave.
Id. The Court also noted that there was little
reason to worry that the state and federal courts might reach differing results on
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whether a state petition is “properly filed” because the federal court can, in its
discretion, stay the federal case while the state petition is pending. Id.
Similarly, the Ninth Circuit has held that a state petition is not “properly
filed” if the petition is dismissed as successive under the state’s procedural rules.
See Dictado v. Ducharme, 189 F3d 889, 892 (9th Cir. 1999). The Court reasoned
that the policy of deferring to state courts weighs in favor of requiring prisoners to
comply with the full range of state procedural rules, including the rule regarding
successive petitions.
Id.
Though this precise issue has not been addressed in this Circuit, the Court
has interpreted the phrase “properly filed” in the context of an untimely state
petition. We held recently that a state petition is not “properly filed” when it fails
to comply with state filing deadlines as applied by the state court. See Webster v.
Moore, No. 99-4201, ___ F.3d ___ ( 11th Cir. 2000,). In Webster, we noted that
the AEDPA demonstrates a concern for federal-state comity and deference to state
determinations of constitutional claims. See Webster at *2-3 (concern for federal-
state comity “militates in favor of requiring compliance with state filing deadlines
in the context of § 2244(d)(2)”).
Because we are persuaded by the reasoning of the courts that have not
deemed successive state court filings to be “properly filed,” we extend Webster to
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prohibit tolling in the circumstances of this case. This extension is in accord with
the AEDPA’s purpose of encouraging state court exhaustion, while also not
allowing procedurally defective motions, such as Weekly’s successive motions, to
toll the period for filing a federal habeas action.
CONCLUSION
Weekly’s second and third motions pursuant to Florida Rule of Criminal
Procedure 3.850 were dismissed as successive petitions, and those dismissals were
affirmed on appeal. It is therefore clear that Weekly failed to comply with the
procedural requirement forbidding successive motions. See Fla. R. Crim P.
3.850(f). His state post-conviction motions were not “properly filed” and there
was no tolling of the one year limitations period. It follows that his federal habeas
petition pursuant to 28 U.S.C. §2254, which was filed on June 25, 1997, was filed
outside the limitations period and is time-barred.
Thus, for the reasons given in this opinion, we AFFIRM the district court’s
dismissal of Weekly’s habeas petition.
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BARKETT, Circuit Judge, dissenting:
I respectfully dissent from the majority’s opinion in this case because I find
the decisions in Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), Villegas v.
Johnson,
184 F.3d 467 (5th Cir. 1999), and Lovasz v. Vaughn,
134 F.3d 146 (3d
Cir. 1998), to be more persuasive than those in Dictado v. Ducharme,
189 F.3d 889
(9th Cir. 1999), and Tinker v. Hanks,
172 F.3d 990 (7th Cir. 1999). In Webster v.
Moore, No. 99-4201, ____ F.3d ____ (11th Cir. 2000), there was no question that
the state petition filed in that case was untimely under state law, and that the state
court did not have to make a determination on the merits of the petition to so hold.
When state courts do in fact have to look at the merits of a petition for
post-conviction relief, it seems to me that their merits determination should have
no bearing on whether the petition was “properly filed” under the AEDPA. To
import consideration of the merits of the petition into this determination seems to
me to be in direct conflict with the plain meaning of the phrase “properly filed” as
it is used in the statute.
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