Case: 17-14960 Date Filed: 07/14/2020 Page: 1 of 8
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14960 ________________________
D.C. Docket No. 8:17-cv-01695-VMC-AEP
TORRENCE BATES,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 14, 2020)
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM and LUCK, Circuit Judges.
WILLIAM PRYOR, Chief Judge: Case: 17-14960 Date Filed: 07/14/2020 Page: 2 of 8
Torrence Bates appeals the dismissal of his petition for a writ of habeas
corpus, 28 U.S.C. § 2254, as untimely. The district court ruled that the one-year
limitations period to file a petition, id. § 2244(d), was not tolled until the date
Bates filed a motion for postconviction relief that complied with all procedural
requirements of Florida law, see Fla. R. Crim. P. 3.850, despite his earlier filing of
a noncompliant motion. Because later precedent of our court renders that ruling
erroneous on these facts, we reverse and remand. See Hall v. Sec’y, Dep’t of Corr.,
921 F.3d 983, 988–90 (11th Cir. 2019); Green v. Sec’y, Dep’t of Corr., 877 F.3d
1244, 1247–49 (11th Cir. 2017).
I. BACKGROUND
A Florida jury convicted Bates of manslaughter with a firearm on June 27,
2012. The state trial court imposed a 30-year sentence, and the Second District
Court of Appeal of Florida affirmed the conviction and sentence without opinion
on June 25, 2014. Bates v. State (Bates I), 145 So. 3d 838 (Fla. Dist. Ct. App.
2014) (per curiam). Bates did not petition for a writ of certiorari to the Supreme
Court of the United States, and his opportunity to do so expired on September 24,
2014. See U.S. Sup. Ct. R. 13.1 (providing litigants 90 days to petition for a writ of
certiorari from the judgment of the state court of last resort).
Instead, Bates filed a motion for postconviction relief, Fla. R. Crim. P.
3.850, on March 17, 2015. But, on May 4, 2015, the state postconviction trial court
2 Case: 17-14960 Date Filed: 07/14/2020 Page: 3 of 8
dismissed without prejudice Bates’s motion. Bates had apparently forgotten to
accompany his postconviction motion with a signed oath, as required by Rule
3.850(c) of the Florida Rules of Criminal Procedure. But the state postconviction
trial court explained in its order that Bates could “file a properly sworn motion,
should he so choose.”
On June 4, 2015, Bates refiled his motion for postconviction relief, Fla. R.
Crim. P. 3.850, with the required signed oath. The state postconviction trial court
eventually issued a final order denying all of Bates’s claims for relief on March 4,
2016. And the Second District Court of Appeal affirmed on October 26, 2016, with
the mandate issuing on January 26, 2017. See Bates v. State (Bates II), 207 So. 3d
225 (Fla. Dist. Ct. App. 2016) (per curiam).
On July 11, 2017, Bates filed a petition for a writ of habeas corpus, 28
U.S.C. § 2254. The district court ordered the State to respond and show cause why
the petition should not be granted. In a limited response, the State moved to
dismiss the petition as untimely, see 28 U.S.C. § 2244(d). The State argued that the
limitations period did not toll until Bates refiled his postconviction motion on June
4, 2015, because his initial motion was not “properly filed,” which meant no
“application” was “pending.” So the State concluded that Bates filed his petition in
federal court almost two months late.
3 Case: 17-14960 Date Filed: 07/14/2020 Page: 4 of 8
The district court dismissed the petition as untimely. It relied on our decision
in Hurley v. Moore, 233 F.3d 1295, 1297–98 (11th Cir. 2000), to rule that a Rule
3.850 motion that is missing a written oath is not “properly filed,” as required to
toll the limitations period. See 28 U.S.C. § 2244(d)(2). Because the limitations
period did not toll until Bates filed his compliant motion on June 4, 2015, his
federal petition was late.
We later granted Bates a certificate of appealability to address whether new
precedent of our court affected the timeliness of his petition:
Whether, in light of Green v. Secretary, Department of Corrections, 877 F.3d 1244, 1247–49 (11th Cir. 2017), the district court correctly denied Bates’s 28 U.S.C. § 2254 petition as untimely?
And we appointed counsel to represent Bates on appeal. Appointed counsel has ably
discharged his duties and we thank him for his service.
II. STANDARD OF REVIEW
We review the dismissal of a petition for a writ of habeas corpus as untimely
de novo. See Hall, 921 F.3d at 986; Green, 877 F.3d at 1247.
III. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 permits a state
prisoner to petition for a writ of habeas corpus once he exhausts all state court
remedies, 28 U.S.C. § 2254. The Act also imposes a one-year limitations period,
which begins to run from the latest of,
4 Case: 17-14960 Date Filed: 07/14/2020 Page: 5 of 8
(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 State action in violation of the Constitution or laws of the United States is removed, if the applicant was 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) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id. § 2244(d)(1). But “[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under this
subsection.” Id. § 2244(d)(2) (emphases added). So the application must be
“properly filed” and “pending.”
The State seizes on the terms “properly filed” and “pending” to argue that
the limitations period was not tolled until the filing of the compliant motion, but
our decisions in Green and Hall, issued after the district court dismissed Bates’s
petition, foreclose those arguments.
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Case: 17-14960 Date Filed: 07/14/2020 Page: 1 of 8
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14960 ________________________
D.C. Docket No. 8:17-cv-01695-VMC-AEP
TORRENCE BATES,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 14, 2020)
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM and LUCK, Circuit Judges.
WILLIAM PRYOR, Chief Judge: Case: 17-14960 Date Filed: 07/14/2020 Page: 2 of 8
Torrence Bates appeals the dismissal of his petition for a writ of habeas
corpus, 28 U.S.C. § 2254, as untimely. The district court ruled that the one-year
limitations period to file a petition, id. § 2244(d), was not tolled until the date
Bates filed a motion for postconviction relief that complied with all procedural
requirements of Florida law, see Fla. R. Crim. P. 3.850, despite his earlier filing of
a noncompliant motion. Because later precedent of our court renders that ruling
erroneous on these facts, we reverse and remand. See Hall v. Sec’y, Dep’t of Corr.,
921 F.3d 983, 988–90 (11th Cir. 2019); Green v. Sec’y, Dep’t of Corr., 877 F.3d
1244, 1247–49 (11th Cir. 2017).
I. BACKGROUND
A Florida jury convicted Bates of manslaughter with a firearm on June 27,
2012. The state trial court imposed a 30-year sentence, and the Second District
Court of Appeal of Florida affirmed the conviction and sentence without opinion
on June 25, 2014. Bates v. State (Bates I), 145 So. 3d 838 (Fla. Dist. Ct. App.
2014) (per curiam). Bates did not petition for a writ of certiorari to the Supreme
Court of the United States, and his opportunity to do so expired on September 24,
2014. See U.S. Sup. Ct. R. 13.1 (providing litigants 90 days to petition for a writ of
certiorari from the judgment of the state court of last resort).
Instead, Bates filed a motion for postconviction relief, Fla. R. Crim. P.
3.850, on March 17, 2015. But, on May 4, 2015, the state postconviction trial court
2 Case: 17-14960 Date Filed: 07/14/2020 Page: 3 of 8
dismissed without prejudice Bates’s motion. Bates had apparently forgotten to
accompany his postconviction motion with a signed oath, as required by Rule
3.850(c) of the Florida Rules of Criminal Procedure. But the state postconviction
trial court explained in its order that Bates could “file a properly sworn motion,
should he so choose.”
On June 4, 2015, Bates refiled his motion for postconviction relief, Fla. R.
Crim. P. 3.850, with the required signed oath. The state postconviction trial court
eventually issued a final order denying all of Bates’s claims for relief on March 4,
2016. And the Second District Court of Appeal affirmed on October 26, 2016, with
the mandate issuing on January 26, 2017. See Bates v. State (Bates II), 207 So. 3d
225 (Fla. Dist. Ct. App. 2016) (per curiam).
On July 11, 2017, Bates filed a petition for a writ of habeas corpus, 28
U.S.C. § 2254. The district court ordered the State to respond and show cause why
the petition should not be granted. In a limited response, the State moved to
dismiss the petition as untimely, see 28 U.S.C. § 2244(d). The State argued that the
limitations period did not toll until Bates refiled his postconviction motion on June
4, 2015, because his initial motion was not “properly filed,” which meant no
“application” was “pending.” So the State concluded that Bates filed his petition in
federal court almost two months late.
3 Case: 17-14960 Date Filed: 07/14/2020 Page: 4 of 8
The district court dismissed the petition as untimely. It relied on our decision
in Hurley v. Moore, 233 F.3d 1295, 1297–98 (11th Cir. 2000), to rule that a Rule
3.850 motion that is missing a written oath is not “properly filed,” as required to
toll the limitations period. See 28 U.S.C. § 2244(d)(2). Because the limitations
period did not toll until Bates filed his compliant motion on June 4, 2015, his
federal petition was late.
We later granted Bates a certificate of appealability to address whether new
precedent of our court affected the timeliness of his petition:
Whether, in light of Green v. Secretary, Department of Corrections, 877 F.3d 1244, 1247–49 (11th Cir. 2017), the district court correctly denied Bates’s 28 U.S.C. § 2254 petition as untimely?
And we appointed counsel to represent Bates on appeal. Appointed counsel has ably
discharged his duties and we thank him for his service.
II. STANDARD OF REVIEW
We review the dismissal of a petition for a writ of habeas corpus as untimely
de novo. See Hall, 921 F.3d at 986; Green, 877 F.3d at 1247.
III. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 permits a state
prisoner to petition for a writ of habeas corpus once he exhausts all state court
remedies, 28 U.S.C. § 2254. The Act also imposes a one-year limitations period,
which begins to run from the latest of,
4 Case: 17-14960 Date Filed: 07/14/2020 Page: 5 of 8
(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 State action in violation of the Constitution or laws of the United States is removed, if the applicant was 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) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id. § 2244(d)(1). But “[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under this
subsection.” Id. § 2244(d)(2) (emphases added). So the application must be
“properly filed” and “pending.”
The State seizes on the terms “properly filed” and “pending” to argue that
the limitations period was not tolled until the filing of the compliant motion, but
our decisions in Green and Hall, issued after the district court dismissed Bates’s
petition, foreclose those arguments. Both decisions held that the one-year
limitations period tolled the day a petitioner filed a procedurally noncompliant
Rule 3.850 motion if he was permitted to and did later file a compliant motion. See
Hall, 921 F.3d at 988–90; Green, 877 F.3d at 1247–49; see also id. at 1248
5 Case: 17-14960 Date Filed: 07/14/2020 Page: 6 of 8
(distinguishing and reconciling our previous decision in Hurley because the
petitioner in that appeal never refiled a compliant Rule 3.850 motion). That is,
under Green and Hall, a compliant Rule 3.850 motion relates back to the date of
filing of a noncompliant motion, such that the compliant motion was “properly
filed” and “pending” as of that date for purposes of tolling the limitations period in
section 2244 of Title 28. See Hall, 921 F.3d at 990; Green, 877 F.3d at 1248.
Although the State disagrees with these decisions, they are binding on our
panel. See United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993). Because
the limitations period tolled on the date of Bates’s initial motion, Bates timely filed
his petition in federal court. So we are required to reverse the district court’s
dismissal of Bates’s petition and remand for further proceedings.
The State also requests that we clarify the application of our decision in
Bond v. Moore, 309 F.3d 770 (11th Cir. 2002), to Florida petitioners. In Bond, we
explained that the limitations period ordinarily commences running 90 days after
the petitioner could have petitioned for a writ of certiorari from the Supreme Court
of the United States on direct review. Id. at 773–74. According to the State, our
Court has misapplied Bond to afford that 90-day grace period to all Florida
petitioners even if a petitioner could have sought review from the Supreme Court
of Florida but chose not to do so. Cf. Pugh v. Smith, 465 F.3d 1295, 1298–1300
(11th Cir. 2006) (explaining that the 90-day grace period is afforded to petitioners
6 Case: 17-14960 Date Filed: 07/14/2020 Page: 7 of 8
who sought direct review from the Supreme Court of Georgia or to petitioners who
were barred from doing so by “a clear statutory or constitutional bar to higher state
court review”).
The problem with the State’s argument is that Bates could not have sought
direct review of his conviction in the Supreme Court of Florida. The Second
District Court of Appeal affirmed his conviction and sentence without explanation
in a per curiam decision, Bates I, 145 So. 3d at 838, so the Supreme Court of
Florida was jurisdictionally barred from reviewing that “unelaborated per curiam
decision[],” Jackson v. State, 926 So. 2d 1262, 1263, 1265 (Fla. 2006). See also
Fla. Const. art. V, § 3(b); Fla. R. App. P. 9.030(a); Hobbie v. Unemployment
Appeals Comm’n of Fla., 480 U.S. 136, 139 n.4 (1987). Because the Second
District Court of Appeal was the “state court of last resort,” Pugh, 465 F.3d at
1299, Bates could have petitioned the Supreme Court of the United States
following that affirmance and is correctly afforded the 90-day grace period before
commencement of the limitations period. See id.; see also Chavers v. Sec’y, Fla.
Dep’t of Corr., 468 F.3d 1273, 1275–76 (11th Cir. 2006) (affording the 90-day
grace period to a Florida petitioner whose conviction was affirmed by a court of
appeal in an unelaborated per curiam decision); 28 U.S.C. § 1257(a).
7 Case: 17-14960 Date Filed: 07/14/2020 Page: 8 of 8
IV. CONCLUSION
We REVERSE the dismissal of Bates’s petition for a writ of habeas corpus
and REMAND for further proceedings consistent with this opinion.