from the United States District Court for the Middle District
of Florida D.C. Docket No. 6:14-cv-00330-RBD-DAB
TJOFLAT and MARTIN, Circuit Judges, and MURPHY, [*] District Judge.
MARTIN, CIRCUIT JUDGE
Green, a Florida state prisoner, appeals from the District
Court's dismissal of his federal habeas petition. The
District Court found Mr. Green's petition was barred by
the one-year statute of limitations established by the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2244(d). After careful review, and with the
benefit of oral argument, we reverse.
1990, a Florida jury found Mr. Green guilty of one count of
first degree felony murder, two counts of kidnapping, and two
counts of robbery with a firearm. The trial court sentenced
Mr. Green to death for the felony murder conviction and to a
27-year term of imprisonment on the remaining counts. The
Florida Supreme Court affirmed the convictions and sentences
on direct appeal. Green v. State, 641 So.2d 391
(Fla. 1994). Mr. Green then filed a motion for postconviction
relief, and the Florida courts concluded that he was entitled
to a new penalty phase trial based on his trial counsel's
ineffective assistance. Green v. State, 975 So.2d
1090, 1099, 1116 (Fla. 2008). On August 31, 2009, the trial
court resentenced Mr. Green to life imprisonment for the
felony murder count. The Fifth District Court of Appeal
affirmed on August 24, 2010. Green v. State, 43
So.3d 707 (Fla. 5th DCA 2010) (per curiam) (table).
September 27, 2010, Mr. Green filed an amended successive
motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850. His motion included the sworn oath:
"I hereby declare under the penalty of perjury that the
above information is true and correct, to the best of my
knowledge." On January 7, 2011, Mr. Green filed a second
amended Rule 3.850 motion, which replaced the first amended
motion and contained an identical oath. On January 24, 2011,
the state postconviction court denied the January 7 motion
without prejudice because it included the qualified language
"to the best of my knowledge, " which did not
satisfy Florida Rule of Criminal Procedure
3.987. The court instructed Mr. Green to refile
the motion with a corrected oath within 30 days of its order.
Complying with this instruction, Mr. Green filed a corrected
Rule 3.850 motion on February 4, 2011, which contained the
proper oath. The state postconviction court denied the motion
on August 31, 2011. The Fifth District Court of Appeal
affirmed per curiam on February 5, 2013, and the
mandate issued on March 1, 2013.
Green filed his 28 U.S.C. § 2254 petition in the
District Court on February 27, 2014. He then filed an amended
petition on March 26, 2014. The District Court dismissed the
petition as untimely. It found that because Mr. Green's
second amended Rule 3.850 motion (the January 7 motion) was
denied due to an improper oath, it was not "properly
filed" under Florida law, and so it did not toll
AEDPA's limitation period. The District Court calculated
the limitation period to run for 74 days from the date Mr.
Green's sentence became final on November 22, 2010, until
February 4, 2011, when Mr. Green filed his corrected Rule
3.850 motion with the proper oath. The period then tolled
until March 1, 2013, when those Rule 3.850 proceedings
concluded. See Nyland v. Moore, 216 F.3d 1264, 1267
(11th Cir. 2000) (per curiam) (holding that a Florida
postconviction motion remains pending until the mandate
issues in the appeal). The court held that the one-year
period expired 291 days later, on December 17, 2013. As
result, the District Court found that Mr. Green's
February 27, 2014, federal habeas petition was untimely. The
District Court also found that Mr. Green was not entitled to
equitable tolling and that he had failed to show "actual
innocence" to excuse the time bar.
review de novo a district court's dismissal of a
§ 2254 petition as time-barred under § 2244(d).
Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir. 2006).
Mr. Green argues here that his § 2254 petition is timely
because AEDPA's limitation period was tolled during the
entire period between when he filed his first amended Rule
3.850 motion on September 27, 2010, and when those Rule 3.850
proceedings concluded on March 1, 2013. In the alternative,
he argues that he is entitled to equitable tolling and that
he has also shown "actual innocence" to excuse the
time bar under McQuiggin v. Perkins, 569 U.S. 383,
133 S.Ct. 1924 (2013).
establishes a one-year period for filing a § 2254
petition for a writ of habeas corpus. The one-year period
begins to run from the latest of four triggering events,
including "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 limitation period does not begin to run
until "both the conviction and sentence are
final." Ferreira v. Sec'y, Dep't of
Corr., 494 F.3d 1286, 1292-93 (11th Cir. 2007). Mr.
Green's sentence became final on November 22, 2010, the
date on which the 90-day period for filing a petition for
certiorari with the U.S. Supreme Court expired. See Nix
v. Sec'y for Dep't of Corr., 393 F.3d 1235,
1236-37 (11th Cir. 2004) (per curiam). Absent statutory or
equitable tolling, therefore, the limitation period ran on
November 23, 2011,  and Mr. Green's February 27, 2014,
federal habeas petition would be time-barred.
one-year limitation period for filing a § 2254 petition
is tolled during times in which a "properly filed"
application for state post-conviction relief is
"pending." 28 U.S.C. § 2244(d)(2). An
application is properly filed "when its delivery and
acceptance are in compliance with the applicable laws and
rules governing filings." Artuz v. Bennett, 531
U.S. 4, 8, 121 S.Ct. 361, 364 (2000). The laws and rules
governing filings "usually prescribe, for example, the
form of the document, the time limits upon its delivery, the
court and office in which it must be lodged, and the
requisite filing fee." Id. (footnote omitted).
The question of whether an application is properly filed is a
different one from that of whether the claims in the
application have merit and are free from procedural bar.
Id. at 9, 121 S.Ct. at 364. "[U]nder
Artuz, we look to the state procedural rules
governing filings to determine whether an application for
state post-conviction relief is 'properly
filed.'" Wade v. Battle, 379 F.3d 1254,
1260 (11th Cir. 2004) (per curiam).
Florida law, Rule 3.850 motions "must be under
oath." Fla. R. Crim. P. 3.850(c). An oath is inadequate
if it contains qualifying language, such as "to the best
of [my] knowledge." Scott v. State, 464 So.2d
1171, 1172 (Fla. 1985). This Court has held that a Rule 3.850
motion is not properly filed-and therefore does not toll
AEDPA's limitation period-if it does not contain the
written oath required by Florida law. Hurley v.
Moore, 233 F.3d 1295, 1298 (11th Cir. 2000) (per
Green's oaths associated with his September 27, 2010 and
January 7, 2011 Rule 3.850 motions did not comply with
Florida's oath requirement because they included the
qualified language "to the best of my knowledge."
These motions were not therefore "properly filed"
as that term is used in § 2244(d). Hurley, 233
F.3d at 1298. Yet these determinations do not end our
analysis. Mr. Green's corrected Rule 3.850 motion, filed
on February 4, 2011, was properly filed because it
fixed the oath deficiency. And Mr. Green points out that
under Florida law, a postconviction motion that corrects a
deficient oath relates back to and is deemed filed as of the
original filing date. Mr. Green argues that Florida's
application of ...