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Green v. Secretary, Department of Corrections

United States Court of Appeals, Eleventh Circuit

December 15, 2017

CROSLEY ALEXANDER GREEN, Petitioner-Appellant,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, HARDEE CI WARDEN, Respondents-Appellees.

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:14-cv-00330-RBD-DAB

          Before TJOFLAT and MARTIN, Circuit Judges, and MURPHY, [*] District Judge.

          MARTIN, CIRCUIT JUDGE

         Crosley 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.

         I.

         In 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).

         On September 27, 2010, Mr. Green filed an amended successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.[1] 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.[2] 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.

         Mr. 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.

         II.

         We 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).

         AEDPA 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, [3] and Mr. Green's February 27, 2014, federal habeas petition would be time-barred.

         The 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).

         Under 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 curiam).

         Mr. 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 ...


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