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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KURTIS ROY JETER,

Petitioner,

v. CASE NO. 5:10cv189-RH/GRJ

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________/

ORDER OF DISMISSAL

A state court revoked the petitioner Kurtis Roy Jeter’s probation and 

sentenced him to five years in prison. Mr. Jeter asserts the underlying conviction

was imposed in violation of the United States Constitution. He does not challenge 

the revocation or resulting sentence on any other basis. He has filed a petition and 

now an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The respondent Florida Department of Corrections (“the state”) has moved 

to dismiss for failure to exhaust state judicial remedies as required by 

§ 2254(b)(1)(A). The motion is before the court on the magistrate judge’s report 

and recommendation, ECF No. 31, and Mr. Jeter’s responses, ECF Nos. 32 & 33. 

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Case No: 5:10cv189-RH/GRJ

The report and recommendation concludes that the motion should be granted and 

the amended petition dismissed. This order accepts the report and 

recommendation and adopts it as the court’s opinion, with the additional 

explanation set out in this order. The order also grants a certificate of appealability 

on two recurring issues on which reasonable judges could disagree.

I

The basis of the motion to dismiss is this: when Mr. Jeter sought to raise his 

constitutional claim in a state-court application for collateral review, the court held 

that the claim was barred by Florida’s own statute of limitations. A person who 

cannot exhaust state remedies because of a procedural default cannot obtain relief 

under § 2254 unless the person shows cause for the procedural default and 

prejudice from it, or a fundamental miscarriage of justice, all as accurately set out 

in the report and recommendation. See, e.g., Coleman v. Thompson, 501 U.S. 722, 

748-50 (1991); Murray v. Carrier, 477 U.S. 478, 485 (1986). 

Mr. Jeter alleges that he missed the Florida statute of limitations only 

because an attorney he retained to file an application—and who promised to do 

it—did not in fact file the application. For purposes of the motion to dismiss, I 

accept the allegation as true. I assume, too, as Mr. Jeter seems to allege, that he 

was diligent and did all he could do to ensure the attorney did what he promised.

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Mr. Jeter’s assertion that the state court’s enforcement of the statute of 

limitations was itself a federal constitutional violation is plainly wrong. A state 

may not need to provide for collateral review at all, and in any event a state can set 

a reasonable statute of limitations for seeking review. A state need not provide an 

exception for attorney misconduct or negligence.

Missing the statute of limitations was a procedural default. Mr. Jeter has 

alleged nothing that would constitute a fundamental miscarriage of justice. Even if 

he could show prejudice, he would be entitled to go forward only by showing 

cause for the procedural default. The state’s motion to dismiss thus turns on this 

question: can an attorney’s failure to file a state application for collateral review as 

promised constitute “cause” for the procedural default? 

Under the longstanding law of the circuit, the answer is no. This order thus 

grants the motion to dismiss. But the circuit has not addressed the issue since the 

Supreme Court’s decision in Holland v. Florida, 130 S. Ct. 2549 (2010). Holland

rejected as “too rigid” the Eleventh Circuit’s rule that an attorney’s professional 

misconduct is never sufficient for equitable tolling of the § 2254 limitations period. 

Id. at 2563. Equitable tolling of the federal limitations period under § 2254 is a 

different issue than cause for missing a state collateral-review limitations period—

a procedural default. Still, these issues have elements in common. See Holland, 

130 S. Ct. at 2566-68 (Alito, J., concurring) (discussing an applicant’s 

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responsibility for attorney misconduct for purposes of both equitable tolling and 

procedural default without drawing a distinction between the two issues). If 

Holland changed the law of the circuit for procedural default as well as equitable 

tolling, Mr. Jeter’s pro se allegations would be sufficient to withstand the motion 

to dismiss, at least pending further factual development. This is a recurring issue 

for district courts.

II

The statute of limitations for a federal petition challenging a state-court 

conviction and sentence is one year. 28 U.S.C. § 2244(d)(1). In most cases, the 

period begins to run when the state judgment becomes final by the conclusion of 

direct review or the expiration of the period for seeking direct review. Id. 

§ 2244(d)(1)(A). The period runs from a later date in specific circumstances: when 

the state has unconstitutionally created an impediment to the filing, 

§ 2244(d)(1)(B); when the Supreme Court has newly recognized a pertinent 

constitutional right and made it retroactively applicable, § 2244(d)(1)(C); or when 

the factual predicate of the claim could not have been discovered earlier through 

diligence, § 2244(d)(1)(D). The limitations period is tolled while a properly filed 

application for state postconviction or collateral review is pending. Id. 

§ 2244(d)(2).

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Mr. Jeter entered a guilty plea on September 18, 2006, and was sentenced to 

probation. The written judgment was docketed on September 21, 2006. Mr. Jeter

did not appeal. The deadline for an appeal expired on Monday, October 23, 2006. 

The 90-day period for filing a petition to the United States Supreme Court for a 

writ of certiorari—if, as seems unlikely, the case could involve an issue on which 

a direct appeal was unavailable and certiorari thus would lie directly from the state 

trial court’s judgment—was December 20, 2006. Mr. Jeter filed no application for 

state postconviction or collateral review. The one-year limitations period for filing 

a § 2254 petition thus expired by December 20, 2007. Mr. Jeter did not file a 

§ 2254 petition by that date. 

Mr. Jeter violated his probation in 2008. The state court revoked his 

probation on September 18, 2008, and sentenced him to five years in prison. He 

took a direct appeal and later filed a series of applications for state postconviction 

or collateral review. These kept the federal limitations period from even starting to 

run on any § 2254 petition asserting that the probation revocation and resulting 

sentence were unconstitutional. 

On July 7, 2010, Mr. Jeter mailed for filing the §2254 petition that initiated 

this case. He later amended it. ECF No. 18. Mr. Jeter asserts that the underlying 

2006 conviction was obtained in violation of the Constitution, but he does not 

challenge the probation revocation and the resulting five-year prison sentence on 

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any other basis. The §2254 petition was filed within the one-year limitations 

period only if the period for challenging the underlying conviction was reopened 

by the probation revocation. 

In Ferreira v. Secretary, Department of Corrections, 494 F.3d 1286 (11th 

Cir. 2007), the court addressed a similar—but not identical—situation. There the 

defendant was convicted and sentenced. The one-year limitations period for a 

§ 2254 petition expired. He later filed a state-court motion to correct the sentence. 

The motion was granted, and the defendant was resentenced. The defendant filed a 

§ 2254 petition challenging only the underlying conviction; he asserted no other

challenge to the new sentence. The district court dismissed the petition as 

untimely. The Eleventh Circuit initially affirmed, but the United States Supreme 

Court vacated and remanded for further consideration in light of Burton v. Stewart, 

549 U.S. 147 (2007). On remand, the Eleventh Circuit held that the statute of 

limitations for the § 2254 petition ran from the date the resentencing judgment 

became final—not from the date the original judgment on the underlying 

conviction became final—even though the alleged constitutional violation arose 

only from the underlying conviction. 

Ferreira dealt with a resentencing. Mr. Jeter was not resentenced; his 

probation was revoked. Arguments can be made on both sides of the question 

whether Ferreira does or should apply to a probation revocation. The first issue, 

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of course, is what the statute says and means. Aside from the statutory language, a 

single one-year period might seem enough. On the other hand, a claim that might 

not seem worth pursuing at the outset might take on much greater importance when 

a longer sentence is imposed.

The state and the report and recommendation treat Mr. Jeter’s petition as 

timely based on Ferreira. The state makes clear, though, that it disagrees with this 

result and does not waive the statute-of-limitations defense. Two district courts in 

this circuit have said Ferreira does not apply to a probation revocation. West v. 

Sec’y Dep’t of Corr., No. 8:07-cv-1794-T-23MAP, 2011 WL 166325, at *2 n.6 

(M.D. Fla. Jan. 18, 2011); Wright v. Florida, No. 8:06-CV-1704-T-27EAJ, 2008 

WL 1986184, at *3-4 (M.D. Fla. May 6, 2008). This order does not reach the issue 

of whether Mr. Jeter’s petition is timely under Ferreira, but if the circuit agrees

with West and Wright, it would provide an alternative basis for affirming the 

judgment of dismissal that this order directs the clerk to enter on other grounds. 

This is a recurring issue for district courts.

III

For these reasons,

IT IS ORDERED:

1. The report and recommendation, ECF No. 31, is accepted and adopted as 

the court’s further opinion. 

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2. The motion to dismiss, ECF No. 21, is GRANTED.

3. The clerk must enter judgment stating, “The amended petition is 

dismissed with prejudice.”

4. A certificate of appealability is granted on these issues:

(a) Whether, in light of Holland v. Florida, 130 S. Ct. 2549 (2010), an 

attorney’s professional misconduct can constitute cause for a state-court procedural 

default, even in a postconviction proceeding in which the defendant has no 

constitutional right to the effective assistance of counsel court, and thus, on a 

showing of prejudice, allow a 28 U.S.C. § 2254 petition to go forward.

(b) Whether, under Ferreira v. Secretary, Department of Corrections, 494 

F.3d 1286 (11th Cir. 2007), a person whose probation is revoked has a new oneyear limitations period for a § 2254 petition that asserts a constitutional violation in 

connection with the underlying conviction and raises no other challenge to the 

revocation and resulting sentence. 

SO ORDERED on September 28, 2011.

Robert L. Hinkle 

United States District Judge

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