Zack v. Tucker, 09–12717.
| Decision Date | 09 January 2012 |
| Docket Number | No. 09–12717.,09–12717. |
| Citation | 23 Fla. L. Weekly Fed. C 687,666 F.3d 1265 |
| Parties | Michael Duane ZACK, III, Petitioner–Appellant, v. Kenneth S. TUCKER, Pam Bondi, Respondents–Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
23 Fla. L. Weekly Fed. C 687
666 F.3d 1265
Michael Duane ZACK, III, Petitioner–Appellant,
v.
Kenneth S. TUCKER, Pam Bondi, Respondents–Appellees.
No. 09–12717.
United States Court of Appeals, Eleventh Circuit.
Jan. 9, 2012.
[666 F.3d 1266]
Martin J. McClain (Court–Appointed), Linda McDermott (Court–Appointed), McClain & McDermott, P.A., Wilton Manors, FL, for Petitioner–Appellant.
Charmaine M. Millsaps, Tallahassee, FL, for Respondents–Appellees.
Appeal from the United States District Court for the Northern District of Florida.Before DUBINA, Chief Judge, and EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
This appeal raises questions of statutory construction and of the doctrine of precedent.
Petitioner was convicted in Florida state court and was sentenced to death. The Florida Supreme Court affirmed Petitioner's conviction and sentence and later denied post-conviction relief. The District Court denied habeas relief but granted a certificate of appealability on the question of the habeas petition's timeliness. We vacate the District Court's decision and remand the case.
Petitioner Michael Duane Zack, III was convicted in 1997 in Florida state court for murder, sexual battery, and robbery. The Florida Supreme Court affirmed Petitioner's conviction and sentence on direct review. Zack v. State, 753 So.2d 9 (Fla.2000). On 2 October 2000, Petitioner's conviction and sentence became final when the United States Supreme Court denied his petition for certiorari. See Zack v. Florida, 531 U.S. 858, 121 S.Ct. 143, 148 L.Ed.2d 94 (2000).
On 26 December 2001, Petitioner filed his first state post-conviction motion, asking for an extension of time for filing a motion for collateral review. On 10 May 2002, Petitioner then filed a motion in state court to vacate his conviction and sentence. Both the December and May motions came more than one year after the conviction became final. When Petitioner's collateral review process was going on in state court, the United States Supreme Court decided
[666 F.3d 1267]
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); and Petitioner amended his post-conviction filings to include claims newly made available under Atkins. In 2005, the Florida Supreme Court denied Petitioner all post-conviction relief. Zack v. State, 911 So.2d 1190 (Fla.2005).
Petitioner next turned to the federal courts for post-conviction relief, filing this habeas petition and raising multiple claims for relief, including a claim under Atkins. The District Court dismissed all of Petitioner's non- Atkins claims as untimely and denied the Atkins claim on the merits. The District Court then granted a certificate of appealability on the timeliness issue.
Petitioner's habeas petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, 110 Stat. 1214 (1996) (codified in scattered sections of Title 28 of the U.S. Code) (“the AEDPA”). The AEDPA imposes a one-year statute of limitations for the filing of section 2254 petitions. 28 U.S.C. § 2244(d)(1). We review de novo a district court's determination that a habeas petition is time barred. Hepburn v. Moore, 215 F.3d 1208 (11th Cir.2000).
The AEDPA statute of limitation is expressed in section 2244(d):
(1) A 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitations period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by a State action in violation of the Constitution or laws of the United States is removed, if the applicant is prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D)...
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