[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 20

- 10043
Non

- Argument Calendar

____________________
BYRON JAMAAL BROWN,
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 D.C. Docket No. 8:17

- cv

- 00465

- TPB

- SPF

____________________ USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 1 of 102 Opinion of the Court 20

- 10043

Before J ORDAN , N EWSOM , and B RANCH , Circuit Judges.
PER CURIAM : Byron Brown , proceeding pro se , appeals the dismissal of his 28 U.S.C. § 2254 petition for writ of habeas corpus as time

barred by the one

- year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). He argues that his § 2254 petition was timely

. 1 After review, we vacate the district court’s opinion and remand the case for further proceedings

.

1 We granted Brown a certificate of appealability on the following issue: Whether the district court erred in determining that Brown’s Fla. R. Crim. P. 3.800(a) motion, filed on March 1, [2012], did not toll the limitation period under [AEDPA], 28 U.S.C. § 2244(d)(1), because it was not “properly filed” within the meaning of the AEDPA

. We are limited to the issues specified in the certificate of appealability

. See McClain v. Hall , 552 F.3d 1245, 1254 (11th Cir. 2008) (“In an appeal brought by an unsucce ssful habeas petitioner, appellate review is limited to the issues specified in the certificate of appealability.” (alteration adopted) (quotation omitted)). W e thus do not consider Brown’s arguments that relate to the merits of the substantive claim that he sought to litigate in his § 2254 petition, as that issue is beyond the scope of the certificate of appealability. USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 2 of 1020

- 10043 Opinion of the Court 3

I. Background In June 2010, Brown pleaded guilty to Florida robbery with possession of a firearm and was sentenced to 25 years’ imprisonment follo wed by 15 years’ probation. Florida’s Second District Court of Appeal summarily affirmed Brown’s conviction and sentence on direct appeal on October 7 , 2011

. Brown v. State , 75 So. 3d 1252 (Fla. 2d DCA 2011) (table). 2

O n March 1, 2012, Brown filed a motion to correct illegal
sentence, under Fla. R. Crim. P. 3.800(a)
, 3 in the trial court. On May 1 4 , 2012, t he trial court dismissed the motion without prejudice, concluding it was facially insufficient because it “failed to affirmatively allege that the error appear[ed] on the face of the

2 Following issuance of the DCA’s opinion in his direct appeal, Brown filed a “motion for rehearing, clarification, and request for written opinion,” but Florida’s Second District Court of Appeal struck the motion as untimely. It is undisputed that this filing did not toll the federal limitations period. See Chavers v. Sec’y, Fla. Dep’t of Corr. , 468 F.3d 1273, 1275 (11th Cir. 2006) (The 90

- day period for seeking certiorari review of a conviction “runs from the date of entry of the judgment or order sought to be reviewed, not from the issuance of the mandate (or its e quivalent under local practice).” (quoting Sup. Ct. R. 13.3)); see also Pace v. DiGuglielmo , 544 U.S. 408, 414 (2005) (“When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).” (quotations omi tted)).

3 Under Rule 3.800(a), “[a] court may at any time correct an illegal sentence imposed by it . . . when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief . . . .” Fla. R. Crim. P. 3.800(a)(1)

. USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 3 of 104 Opinion of the Court 20

- 10043
record, and how and where the record demonstrate[d] entitlement to relief.” 4 On May 30, 2012, Brown file d a second Rule 3.800(a) motion in the trial court. The trial court denied the motion on the merits on Novembe r 27, 2012

. Brown appealed, the state appellate court affirmed, and the mandate issued on December 26, 2013. On April 4, 2014, Brown filed a third R ule 3.800(a) motion in the trial court. The trial court denied the motion as successive, the state appel late court affirmed that denial, and the mandate issued on January 22, 2016

. Meanwhile, on January 20, 2016, while the appeal from the denial of his third Rule 3.800(a) motion was pending, Brown filed a fourth Rule 3.800(a) motion in the trial court. Th e trial court denied the motion, the state appellate court affirmed, and the mandate issued on August 8, 2016

. Subsequently, on February 22, 2017, Brown filed a federal habeas petition, pursuant to 28 U.S.C. § 2254. The State moved to dismiss the § 2254 petition as time

- barred, asserting that Brown’s first Rule 3.800(a) motion did not toll the federal statute of limitations period because it was not “properly filed” as it failed to “affirmatively allege[] that the court records demo nstrate[d] on

4 T he state court held in the alternative that Brown was not entitled to relief on the merits of the motion. USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 4 of 1020

- 10043 Opinion of the Court 5 their face an entitlement to relief.” (quotation omitted). Therefore, Brown’s instant § 2254 petition was untimely because it was filed outside AEDPA’s one

- year statute of limitations after accounting for all of the applicable tolled period s during the state proceedings. The district court determined without further explanation that the State “correctly calculate[d] the limitation
, which show[ed] that the [§ 2254 petition] [was] untimely.” The district court denied a certificate of appeala bility , but Brown obtained one on the timeliness issue from this Court . This appeal followed.
II. Discussion Liberally construing Brown’s pro se brief, 5 he argues that his § 2254 petition was timely, and the district court erred in concluding otherwise.
“We review de novo a district court’s denial of a habeas petition as untimely.” Chavers v. Sec’y, Fla. Dep’t of Corr. , 468 F.3d 1273, 1274 (11th Cir. 2006). Under AEDPA, § 2254 petitions are governed by a one

- year statute of limitations period that begins to run on, as relevant here, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such r eview.” 28 U.S.C. § 2244(d)(1)(A). A state

5 “ P ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Hughes v. Lott
, 350 F.3d 1157, 1160 (11th Cir. 2003) (quotation omitted). USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 5 of 106 Opinion of the Court 20

- 10043 prisoner’s conviction generally becomes final when the Supreme Court denies certiorari or issues a decision on the merits, or when the 90

- day period in which to file a certiorari petition expires. Nix v. Sec’y for Dep’t of Corr. , 393 F.3d 1235, 1236

– 37 (11th Cir. 2004). The 90

- day period for seeking certiorari review of a conviction runs from the date of entry of the judgment sought to be reviewed, not from the issuance of the mandate. Chavers , 468 F.3d at 127 5. Additionally, t he one

- year federal limitations period is statutorily tolled during times in which a “ properly filed application ” for state post

- conviction relief is pending. 28 U.S.C. § 2244(d)(2). A state post

- conviction motion remains pending for the time during which the petitioner could have appealed from the trial court’s ruling , even if the petitioner does not seek appellat e review. 6 Cramer v. Sec’y, Dep’t of Corr. , 461 F.3d 1380, 1383 (11th Cir. 2006). If an appeal is taken, a post

- conviction motion remains pending until issuance of the mandate by the

state appellate court. Nyland v. Moore , 216 F.3d 1264, 1267 (11th Cir . 2000). In this case, Brown’s conviction and sentence became final on January 5, 2012, when the 90

- day window for filing a certiorari petition in the United States Supreme Court from the Second Circuit’s decision in his direct appeal expired. Nix , 393 F.3d at

6 Under Florida law, a state prisoner has 30 days to appeal an order dismissing or denying a Rule 3.800(a ) motion. Fla. R. Crim. P. 3.800(a)(4). USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 6 of 1020

- 10043 Opinion of the Court 7

1236

– 37 . At th at time , the federal one

- year statute of limitations for filing a timely § 2254 petition started running

. See 28 U.S.C. § 2244(d)(1)(A). Fifty

- six days later, Brown filed his first Rule 3.800(a) motion on March 1, 2012
, which the trial court dismissed on May 14, 2012

. T he timeliness of Brown’s § 2254 petition turns on whether the first Rule 3.800(a) motion was “ properly filed” within the meaning of AEDPA , and thus tolled the federal limitations period

. If it was “properly filed,” then Brown’s § 2254 petition was timely. On the other hand, if it was not properly filed, then Brown’s § 2254 petition was untimely.
The State maintains that th e first Rule 3.800(a) motion was not “properly filed” and therefore did not toll the federal limitations period because Rule 3.800(a) contains a pleading requirement that the motion “affirmatively allege[] that the court records demonstrate on their face an entitlement to that relief,”

see Fla. R. Crim. P. 3

. 800( a)

. The State contends that the pleading requirement is a condition for filing

. I n Artuz v. Bennett , the Supreme Court rejected a n argument that “an application for state postconviction or other collateral review is not ‘ properly filed ’ for purposes of § 2244(d)(2) unless it complies with all mandatory state

- law procedural requirements that would bar review of the merits of the appl ication .” 531 U.S. 4, 8 (2000). The Supreme Court explained that [a] n application is “filed,” as that term is commonly understood, when it is delivered to, and accepted by, USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 7 of 108 Opinion of the Court 20

- 10043 the appropriate court officer for placement into the official record. And an ap plication is “ properly filed” when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These 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. . . . But in common usage, the question whether an application has been “properly filed” is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar. Id. at 8 (emphasis in original) (quotation s omitted) (footnote and internal citations omitted). Applying this definition, the Supreme Court held that an application for state post

- conviction relief was properly filed even though it co ntained claims that were procedurally barred by statute

. Id. at 8

- 11. The Court explained that the motion was properly filed because the procedural bar set forth a condition for obtaining relief, rather than a condition for filing , and while a motion that violated the statutory provisions would not succeed
, it would be considered “properly delivered and accepted so long as the filing conditions have been met.” Id.

at 11. Under Artuz , “properly filed” mean s delivered to the proper person, at the proper time, with the required filing fees, in a form that enables the court to initiate consideration of the motion. See id. at 8; Gorby v. McNeil , 530 F.3d 1363, 1366 (11th USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 8 of 1020

- 10043 Opinion of the Court 9
Cir. 2008) (explaining that a state postconviction motion “ is

‘ properly filed ’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings, which typically include the form of the document, the time limits upon its delivery, the court and office in which it must be lodged,

a nd the requisite filing fee ” (quotation omitted) )

. Applying Artuz , we have rejected the argument that a motion was “not ‘properly filed’ because it was not sufficiently specific and thus facially invalid.” Brown v. Sec’y for the Dep’t of Corr. , 530 F.3d 1335, 1337 (11th Cir. 2008). And w e emphasized that “[f]acial inva lidity . . . [of a pleading] is not determinative of ‘proper filing’” for purposes of AEDPA. Id. Like the argument advanced in Brown , the State’s argument here hinges on the sufficiency and facial validity of the Rule 3.800(a) motion
, which are not th e typical “filing conditions ” that “go to the very initiation of a petition and a court ’ s ability to consider that petition

. ” Pace v. DiGuglielmo , 544 U.S. 408, 417 (2005) (explaining that “[f] or purposes of determining what are “filing” conditions, there is an obvious distinction between time limits, which go to the very initiation of a petition and a court ’ s ability to consider that petition, and the type of “rule of decision” procedural bars at issue in Artuz , which go to the ability to obtain relief ”)

. Here, t he state court dismissed the Rule 3.800(a) motion as facially insufficient, and alternatively denied it on the merits. There was no allegation that the motion did not meet any filing requirements. Thus, we conclude that the district cou rt erred in USCA11 Case: 20-10043 Date Filed: 03/14/2022 Page: 9 of 1010 Opinion of the Court 20

- 10043 determining that the first Rule 3.800(a) motion was not properly filed within the meaning of 28 U.S.C. § 2244(d)(2). 7 See Brown , 530 F.3d at 1337

. Therefore, because the first Rule 3.800(a) motion was properly filed, it tolled the federal st atute of limitations under § 2244(d)(2)
, which means that Brown’s § 2254 petition was timely. Accordingly, we vacate the district court’s opinion and remand the case for further proceedings.
VACATED AND REMANDED.

7 The State argues that our unpublished decision in Price v. Secretary Department of Corrections , 489 F. App’x 354 (11th Cir. 2012), compels the conclusion that Brown’s first Rule 3.800(a) motion was not properly filed. The State’s argument is unpersuasive

. As we have emphasized repeatedly, “[u]npublished decisions are not binding authority and they are persuasive only to the extent that a subsequent panel find s the rationale expressed in that opinion to be persuasive after an independent consideration of the legal issue.” Collado v. J.&G. Transp. , Inc. , 820 F.3d 1256, 1259 n.3 (11th Cir. 2016). To the extent there is any conflict between Brown and Price , Price is not binding and cannot overrule our earlier decision in Brown that the facial sufficiency or vali dity of a pleading is not determinative of whether the motion is properly filed for purpo ses of § 2244(d)(2)

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