Hepburn v. Moore

• Decision Date: 19 June 2000
• Docket Number: No. 99-10110,99-10110
• Citation: 215 F.3d 1208
• Parties: (11th Cir. 2000) John T. HEPBURN, Petitioner-Appellant, v. Michael W. MOORE, Robert A. Butterworth, Attorney General of the State of Florida, Respondents-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1208

215 F.3d 1208 (11th Cir. 2000)

John T. HEPBURN, Petitioner-Appellant, v. Michael W. MOORE, Robert A. Butterworth, Attorney General of the State of Florida, Respondents-Appellees.

No. 99-10110

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 19, 2000.

Appeal from the United States District Court for the Middle District of Florida.(No. 99-0001-CIV-T-6F), Richard A. Lazzara, Judge.

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, 165 F.3d 839, 861 (11th Cir.) (en banc), cert. denied. --- U.S. ----, 120 S.Ct. 57, 145 L.Ed.2d 50 (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, 136 F.3d 1451, 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, 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, 171 F.3d 185, 187-88 (4th Cir.1999) (holding...