510 F.3d 1362 (11th Cir. 2007), 06-12501, Alexander v. Secretary, Dept. of Corrections

Docket Nº:06-12501.
Citation:510 F.3d 1362
Party Name:Howard ALEXANDER, Sr., Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
Case Date:December 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1362

510 F.3d 1362 (11th Cir. 2007)

Howard ALEXANDER, Sr., Petitioner-Appellant,

v.

SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 06-12501.

United States Court of Appeals, Eleventh Circuit.

Dec. 21, 2007

Page 1363

Melissa K. Marler, Breon S. Peace (Court-Appointed), Cleary, Gottlieb, Steen & Hamilton, LLP, New York City, for Alexander.

Patrcia Ann McCarthy, Office of Atty. Gen./Dept. of Legal Affairs, Tampa, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before BLACK, HULL and FAY, Circuit Judges.

HULL, Circuit Judge:

Howard Alexander, Sr., a Florida prisoner with appointed counsel, appeals the dismissal of his 28 U.S.C. § 2254 petition as barred by the one-year limitations period in 28 U.S.C. § 2244(d)(1). After review and oral argument, we conclude that Alexander's Florida Rule of Criminal Procedure 3.800(c) motion was a request to reduce a legal sentence based on mercy or leniency and did not constitute an application for State post-conviction or other collateral review with respect to the pertinent judgment under § 2244(d)(2) that tolled the limitations period. Thus, we affirm the district court's dismissal of Alexander's § 2254 petition as untimely.

I. BACKGROUND

A. Convictions Final on January 30, 2001

In Florida state court, Alexander was charged with first-degree murder, grand theft of a vehicle, and robbery with a deadly weapon. In May 1999, a jury convicted Alexander of grand theft of a vehicle and the lesser offenses of manslaughter with a weapon and petit theft. Alexander was sentenced as a habitual felony offender to 25 years' imprisonment on the manslaughter conviction, a concurrent 5-year sentence on the grand theft conviction, and time served on the petit theft conviction.

On November 1, 2000, the Florida appellate court affirmed his convictions. Alexander v. State, 774 So.2d 697 (Fla. Dist. Ct. App. 2000). Alexander had 90 days or until January 30, 2001, to file a petition for certiorari with the United States Supreme Court, but did not do so. See S.Ct. R. 13.1. His judgment of conviction became final on January 30, 2001. His § 2254 petition thus had to be filed by January 30, 2002 to be timely, absent tolling. See 28 U.S.C. § 2244(d)(1).

Page 1364

B. Rule 3.800(c) Motion under Florida Law

On January 8, 2001, Alexander, pro se, filed a motion to reduce his legal sentence pursuant to Florida Rule of Criminal Procedure 3.800(c).1 Alexander's 3.800(c) motion stated that (1) he was very remorseful for what he had done, (2) he prayed for the victim's family, (3) he had learned valuable lessons about life since incarceration and had impacted others through sharing the Gospel of Jesus Christ, and (4) his family and children needed him to return as soon as possible. Alexander's 3.800(c) motion asked the state court to review the "uncontroverted mitigating facts" in the case and have mercy on him by mitigating his sentence. Alexander's 3.800(c) was filed in the state court where he was sentenced.

On January 26, 2001, the clerk of the state trial court sent Alexander a letter indicating that his 3.800(c) motion was heard in court and denied on January 24, 2001. The clerk attached a copy of the court calendar report that contained an entry for his 3.800(c) motion with the words "denied" and "no one present" beside it. In February 2001, Alexander filed a notice of appeal but, in July 2001, the Florida appellate court dismissed the 3.800(c) appeal for lack of jurisdiction. Alexander v. State, 793 So.2d 940 (Fla. Dist. Ct. App. 2001).2

In February 2001, Alexander also filed a petition for certiorari in the Florida appellate court. On May 10, 2002, the Florida appellate court held that Alexander was entitled to a ruling on the merits of his 3.800(c) motion and, if a hearing was held, to be present for the hearing. Alexander v. State, 816 So.2d 778, 780 (Fla. Dist. Ct. App. 2002). Accordingly, the Florida appellate court granted the petition for certiorari, quashed the trial court's order denying Alexander's 3.800(c) motion, and remanded to the trial court for consideration of his 3.800(c) motion on its merits. Id. On May 14, 2002, upon remand, the state trial court denied Alexander's 3.800(c) motion.

C. Rule 3.850 Motion under Florida Law

On February 27, 2002, while Alexander's 3.800(c) proceedings were still pending, Alexander, pro se, filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. On November 21, 2002, the state court denied Alexander's 3.850 motion. Alexander filed an untimely appeal of the denial of his 3.850 motion, which the state appellate court sua sponte dismissed. Alexander v. State, 848 So.2d 315 (Fla. Dist. Ct. App. 2003).

On August 12, 2003, Alexander filed a petition for a belated appeal of the denial of his 3.850 motion. After an evidentiary hearing, the state appellate court granted the petition for a belated appeal. Alexander v. State, 875 So.2d 598 (Fla. Dist. Ct. App. 2003). On June 25, 2004, the state appellate court affirmed the denial of his 3.850 motion. Alexander v. State, 880 So.2d 1218 (Fla. Dist. Ct. App. 2004).

D. Section 2254 Petition

On January 10, 2005, Alexander filed his § 2254 petition.3 The district

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court concluded that the one-year limitations period began to run on January 30, 2001 (when Alexander's convictions became final) and expired on January 30, 2002. The district court determined that Alexander's 3.800(c) motion did not operate as a vehicle for collateral review of the legality of the pertinent judgment, but only allowed a state sentencing court to reduce a legal sentence based on a prayer for mercy or leniency. Thus, the district court concluded that Alexander's 3.800(c) motion did not constitute an application for post-conviction or other collateral review under § 2244(d)(2) and did not toll. Because the one-year limitations period expired on January 30, 2002, before Alexander filed his tolling 3.850 motion on February 27, 2002, the district court dismissed Alexander's § 2254 petition as untimely.

The district court denied Alexander a certificate of appealability ("COA").4 This Court then granted Alexander a COA on the sole issue of:

Whether the district court properly dismissed appellant's 28 U.S.C. § 2254 petition as untimely in light of his properly filed Fla.R.Crim.P. 3.800(c) motion for reduction of sentence[.]5

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), establishes a one-year statute of limitations for filing § 2254 petitions, which begins to run following, inter alia, the date on which the petitioner's judgment becomes final. 28 U.S.C. § 2244(d)(1). Section 2244(d)(2) 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).

It is not disputed that Alexander's § 2254 petition was untimely if his 3.800(c) motion is not a tolling motion. The one-year limitations period began to run when Alexander's conviction became final on January 30, 2001, after the 90-day...

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