FILED

U.S. COURT OF

APPEALS

ELEVENTH CIRCUIT

JANUARY 9, 2012

JOHN LEY

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12717

________________________

D. C. Docket No. 05-00369-CV-RH

MICHAEL DUANE ZACK, III, 

Petitioner-Appellant, 

versus 

KENNETH S. TUCKER, 

PAM BONDI, 

Respondents-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(January 9, 2012)

Before DUBINA, Chief Judge, 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.

BACKGROUND

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, 121 S. Ct. 143 (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

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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

Atkins v. Virginia, 122 S. Ct. 2242 (2002); and Petitioner amended his postconviction 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.

STANDARD OF REVIEW

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

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determination that a habeas petition is time barred. Hepburn v. Moore. 215 F.3d

1208 (11th Cir. 2000).

DISCUSSION

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) the date on which the factual predicate of the

claim or claims presented could have been discovered

through the exercise of due diligence.

(2) The time during which a properly filed

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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.

28 U.S.C. § 2244(d) (emphasis added).

The District Court analyzed each of Petitioner’s habeas claims separately for

timeliness. The District Court found that more than one year had run from the time

Petitioner’s conviction became final until he filed his federal habeas petition but

that less than one year (taking tolling into account) had run from the Supreme

Court’s Atkins decision until he filed the petition. Zack v. Crosby, 607 F. Supp. 2d

1291, 1295 (N.D. Fla. 2008). Based on these findings, the District Court

concluded that the non-Atkins claims were time barred; but the District Court

concluded that the Atkins claim was timely under section 2244(d)(1)(C) because

Atkins recognized a new right and was retroactively applicable to cases on

collateral review. 

Petitioner does not contend that he filed a motion sufficient to toll the

running of the statute of limitations on his non-Atkins claims within one year of his

conviction’s becoming final on 2 October 2000. Petitioner just contends that the

timeliness of his habeas petition must be analyzed by looking at the petition as a

whole and not by analyzing his petition claim by claim. He asserts that his timely

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Atkins claim revived his other time-barred claims, making the entire petition, in

effect, timely.

In Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003), this Court laid down

the rule for analyzing timeliness of a petition. The Walker court addressed a

habeas petition that included one claim that was timely and some other claims that

-- viewed in isolation -- were untimely. The Walker court said this question was

then before the court for decision: “whether individual claims within a single

habeas petition may be reviewed separately for timeliness, in light of Artuz v.

Bennett, 531 U.S. 4, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000).” Walker, 341 F.3d

at 1242. 

The petition in Walker involved a resentencing and was determined to be

timely under section 2244(d)(1)(A). But the decision of Walker, interpreting

section 2244(d), reaches beyond the circumstance of a resentencing. Given the

arguments made to the Walker court and the process of reasoning set out in its

opinion, the Walker court decided -- as a principle of law -- that a single limitation

period applies to a whole petition and that the limitation period for the whole

petition runs one year from the latest of the triggering events established in section

2244(d)(1)(A)-(D). Id. at 1245. The rule from the Walker decision was stated in

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the opinion this way: “[t]he statute of limitations in § 2244(d)(1) applies to the 1

application as a whole; individual claims within an application cannot be reviewed

separately for timeliness.” Id. 

In the light of this rule, the entire petition in Walker qualified, in fact, as

timely because the resentencing activated a one-year-limitation period under

section 2244(d)(1)(A), given that the Walker petition included a challenge to the

resentencing; but, in law, the existence of any of the other triggering events in

section 2244(d)(1)(B)-(D) would have equally made the entire Walker petition

timely as long as the petition included a timely claim under one of those other

triggering provisions. 

Given the approach taken by the Walker court, the existence of a

resentencing was not, in itself, viewed as the material fact. To the Walker court,

the evident material fact -- that is, the legally relevant thing -- was the existence of

any one of the kind of triggering events listed in the pertinent limitations statute. 

Walker binds us in the present case. Section 2244(d)(1) has in no way been

amended since Walker was decided. No Supreme Court holding or en banc

holding from this Court has superseded the Walker decision on the manner to

We understand that not every professed rule set out in an appellate opinion is binding 1

precedent.

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analyze timeliness in a habeas petition. In this Circuit, the timely Atkins claim in 2

Petitioner’s petition makes timely all the other claims in the petition: reviving

claims that were determined to be individually untimely by the District Court. The

Walker court explicitly recognized that its decision would allow the “resurrection

of what seem to be time-barred claims tagging along on the coattails of a timely

claim.” Walker, 341 F.3d at 1247. That “resurrection” has happened in the present

petition. 

The District Court, as a matter of law, erred in applying the statute of

limitation separately to each claim in the petition and in dismissing any claim in

the petition in this case on the grounds of untimeliness.

VACATED and REMANDED. 3

The footnote in Pace v. DiGuglielmo, 125 S. Ct. 1807, 1813 n.6 (2005), cited by the 2

District Court and Appellees does not constitute a holding. We know that our Circuit’s law on

this limitations question is not the law everywhere.

The precise bounds of most decisional rules are uncertain. But we feel obliged to follow

the Walker rule. Given the way the case was argued to the Walker court, and the manner in

which the Walker case was decided, we cannot accept the contention that the Walker decision

here is only persuasive authority: that is, not binding authority -- except for habeas applications

in which one claim, at least, is tied to the circumstance of a resentencing.

Petitioner/Appellant’s Motion for Expansion of Certificate of Appealability, filed 5 3

December 2011, is DENIED.

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