Moore v. Sec'y, 16-10249
| Decision Date | 13 February 2019 |
| Docket Number | No. 16-10249,16-10249 |
| Parties | ROBERT MOORE, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
D.C. Docket No. 5:11-cv-00429-SDM-PRL
Appeal from the United States District Court for the Middle District of Florida
Before MARCUS, NEWSOM, and ANDERSON, Circuit Judges.
Petitioner-Appellant Robert Moore ("Moore") asks this Court to determine whether the district court properly denied his amended 28 U.S.C. § 2254 petition as untimely. Having carefully reviewed the briefs, the relevant parts of the record, and the relevant case law—and with the benefit of oral argument—we conclude that the district court erred in holding that Moore's amended petition was untimely. We remand for further proceedings consistent with this opinion.
This case involves complicated facts, but the legal issues are clear. We assume the parties are familiar with both the facts and the procedural posture of this case. Therefore, we summarize the facts and proceedings only insofar as necessary to provide context for our decision.
Following a trial in the circuit court for Citrus County, Florida, a jury convicted Moore of attempted second-degree murder and aggravated battery. The State of Florida appealed his initial sentence, and Moore cross-appealed on evidentiary grounds not relevant here. On September 11, 2009, Florida's Fifth District Court of Appeal ("Fifth DCA") affirmed the conviction and remanded to the trial court for resentencing. State v. Moore, 19 So. 3d 408, 409 (Fla. 5th DCA 2009). The trial court imposed a new sentence, and Moore appealed again. On September 7, 2010, the Fifth DCA affirmed the new sentence in an unreasoned one-word per curiam opinion. See Moore v. State, 44 So. 3d 598 (Fla. 5th DCA 2010). The mandate issued in the resentencing appeal on September 29, 2010. Aswe see below in part IV.B.2, the two-year state law statute of limitations began to run on September 29, 2010.
A number of postconviction motions and petitions followed. On October 25, 2010, Moore filed a Rule 3.850 motion in state court alleging six claims of ineffective assistance of trial counsel and one claim of cumulative error. On December 6, 2010, while his Rule 3.850 motion was still pending, Moore's time for filing a petition for the writ of certiorari with the Supreme Court of the United States expired. The state court denied the Rule 3.850 motion on January 25, 2011, and the Fifth DCA affirmed in another unreasoned per curiam opinion. See Moore v. State, 63 So. 3d 780 (Fla. 5th DCA 2011). The mandate issued in the appeal from the denial of Moore's Rule 3.850 motion on June 8, 2011. As we see below in part IV.B.1, the one-year clock under the federal Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") started to run on June 8, 2011.
On July 21, 2011, Moore sought federal habeas relief under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Florida. Nearly a year later, and some 316 days after June 8, 2011 when the mandate issued in his Rule 3.850 motion appeal (the time at which the AEDPA clock started running), Moore filed his first state habeas petition in the Fifth DCA on April 19, 2012. In this petition, he raised for the first time several claims of ineffectiveassistance of appellate counsel. The Fifth DCA denied this petition in an unreasoned order dated July 10, 2012. It denied rehearing on August 10, 2012.
Twenty days later, on August 30, 2012, Moore filed a second state habeas petition in the Fifth DCA. This time, Moore alleged appellate counsel affirmatively misled him with respect to certain postconviction rights and timelines. The Fifth DCA denied this petition in another unreasoned order dated September 20, 2012. On October 31, 2012, it refused Moore's request for a rehearing on his second state habeas petition.
Moore filed an amended federal habeas petition on November 15, 2012. This amendment restated some of Moore's previous claims while also adding new ineffective-assistance-of-appellate-counsel claims. The district court denied the ineffective-assistance-of-trial-counsel claims on the merits and rejected the ineffective-assistance-of-appellate-counsel claims as untimely. This appeal concerns only these claims of ineffective assistance of appellate counsel, which the district court thought were untimely. See Moore v. Sec'y, Fla. Dep't of Corr., No. 5:11-CV-429-OC-23PRL, 2014 WL 758008, at *4 (M.D. Fla. Feb. 26, 2014). In this initial order, the district court held that these latter (ineffective assistance of appellate counsel) claims were untimely based on a mistaken belief that the date on which Moore's judgment became final for purposes of the one-year federal habeasstatute of limitations was October 6, 2010,1 rather than the proper date of December 6, 2010 (when Moore's time for seeking a writ of certiorari in the Supreme Court of the United States actually expired and the judgment actually became final).2 See infra, part IV.B.1.
The district court went on to make three other post-trial rulings that are relevant to this appeal. In his initial Rule 60(b)(6) motion, Moore pointed to the error in the district court's judgment on grounds it had misapplied applicable precedent in running the federal habeas statute of limitations from October 6, 2010 instead of December 6, 2010. The district court agreed with Moore, but denied his motion on different grounds: the district court ruled that Moore's first state habeas petition was untimely for a different reason, and thus did not toll the federal habeas statute of limitations. In so holding the district court relied on Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir. 1989), and suggested that the state court, in its unreasoned decision, should be presumed to have found Moore's first state habeas to be untimely. The district court drew this inference based on the fact that (1) the State argued in response to Moore's first state habeas petition that the petition was untimely (i.e., filed after the state two-year statute of limitations had expired), and(2) the Fifth DCA had not clearly indicated in its unreasoned opinion denying the petition that it had reached the merits.3
Moore later filed two separate Rule 59(e) motions. In the first motion, he argued that the district court erred in denying his Rule 60(b)(6) motion because, notwithstanding the State's untimeliness arguments, his first state habeas petition was timely. Although the district court did not expressly acknowledge error in relying on the Bennett presumption to conclude in its Rule 60(b)(6) decision that Moore's first state habeas petition was untimely, in its first Rule 59(e) decision, the district court simply shifted to another new and different ground for reaching the same result. Pursuant to this new and different reason, the district court observed that under Florida law Moore's judgment became final on November 6, 2009, when the Fifth DCA entered its mandate in Moore's initial conviction appeal prior to resentencing. The district court thought the fact "that Moore was subsequently re-sentenced is irrelevant." This led the district court to conclude that Moore's first state habeas petition was untimely, which meant that his amended federal habeas petition was also untimely because Moore lost the benefit of any tolling effect the pending state habeas petition would have had on the federal habeas statute of limitations. The court went on to deny Moore's first Rule 59(e) motion.
Moore's second Rule 59(e) motion followed shortly thereafter. This time he primarily argued that no mandate issued on November 6, 2009 following his initial conviction appeal because that appeal was not finalized until the Fifth DCA entered its September 29, 2010 mandate after the resentencing appeal. Given this, Moore asserted he "had 2 years from September 29, 2010, to file any postconviction proceedings." Finding no newly discovered evidence justifying reconsideration or any manifest errors of law, the district court denied Moore's second Rule 59(e) motion.
This Court granted a certificate of appealability ("COA") to consider whether the district court properly denied Moore's amended 28 U.S.C. § 2254 petition as untimely. The answer to this question depends primarily on whether Moore's two state habeas petitions were timely filed under the two-year state statute of limitations applicable to his state petitions for habeas relief.
If both petitions were timely filed, they would have tolled the applicable federal habeas statute of limitations during their pendency for a total of 175 days (113 days for the first petition and 62 for the second). This would be enough—just enough, in fact—to make Moore's amended federal habeas petition timely filed with fourteen days to spare.
In its Rule 60(b)(6) order, the district court acknowledged the error it made in its initial order. Thus, we need address only the district court's denial of Moore's Rule 60(b)(6) motion and his two Rule 59(e) motions. Although the district court is entitled to significant deference in these post-trial motions, the district court committed reversible error in all three rulings.
The scope of our review in a habeas appeal is limited to the issues described in the COA. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). Although we ordinarily review a district court's decision to dismiss a petition for habeas relief as untimely applying a de novo standard of review, Damren v. Florida, 776 F.3d 816, 820 (11th Cir. 2015), an appeal from a Rule 60(b)(6) ruling is subject to "limited and deferential appellate review," Arthur v. Thomas, 739 F.3d 611, 628 (11th Cir. 2014) (citation omitted). Consequently, this Court will not reverse unless there has been an abuse of discretion. Id. An abuse of discretion occurs when the district court makes a clear error of judgment or applies...
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