### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 13, 2003 THOMAS K. KAHN CLERK

* Honorable Robert B. Propst, United States District Judge for the Northern District of Alabama, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 01-12491

________________________ D. C. Docket N

o. 01-00053-CV-O

RL-31 EXUM WALKER, Petitioner-Appel lant,

versus JAMES CROSBY, Secretary, Department o f Corrections, a nd CHARLIE CRIST, Attorney General of the State of Florida, Respondents-Appell ees.

________________________ Appeal from the United States District Court for the Middle Dist

rict of Florida

_________________________ (August 13, 2003)

Before BIRCH and BLACK, Circuit Judges, and PROPST* , District Judge. BLACK, Circuit Judge:1 In the context of an application for writ of habeas corpus under § 2254, we treat the

terms “application” and “petition” as interchangeable. See Rule 2(a) of the Rules Governing Section 2254 Cases (“. . . the application shall be in the form of a petition for a writ of habeas corpus . . . .”).

2 In a separate indictment, Appellant was charged with 28 counts of unlawf ul possession of materials depicting sexual performance by a child. Appellant plead g uilty to two of the counts, and the other 26 counts were dropped. 2 Appellant Exum

Walker appeals

the district court’ s dismissal of his application for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, as time-barred

under the one-ye

ar statute of lim

itations contained in t

he Antiterrorism and Effecti ve Death Pen alty Act of 19 96 (AEDPA), 28 U.S.C. § 2244 (d)(1). We granted a certificate of appealability as to the following issues: (1) whether individual claim

s within a single habe

as petition may

be reviewed sepa

rately for timeliness in light of Artuz v. Bennett , 531 U.S. 4, 12 1 S. Ct. 361 (2000); and (2) whether, in this case, the district court properly dismissed Walker’ s 28 U.S.C. § 2254 habeas petiti on as un timely. 1 The plain language of § 2244(d)(1) convinces us the answ

er to both questions is no.

I. In May 1990, Ap

pellant was convict

ed in state court of t

hree counts of committing a lewd act in the pr esence of a child a

nd one count of com

mitting a lewd act upon a child

. 2 In July 1990, Ap pellant was sentenced on all of these counts and received a total of 25 yea rs’ incarcera

tion followed by 3 0 years’3

probation. Appella

nt’s conviction and s entence were af firmed on dire

ct appeal, and the mandate issued o n August 7, 1991. In the course of the

next six years,

Appellant filed se

veral collateral

attacks in state court, all

of which were de

nied. In October

1997, however, A

ppellant filed a motion to correct his sentence under Florida Rule of Criminal Procedure 3.800, and the state c ourt grant ed this moti on with res pect to App ellant’s probationary se

ntence. On Febr

uary 4, 1998, A

ppellant was rese

ntenced to 15 years’ proba

tion as to one of the cou

nts for which he wa

s convicted and 15 y

ears’ probation as to another

count, to run consec

utively. Appe

llant appealed the resentencing judgm

ent. On February 24, 1998, while the appeal to his resentencing judgment was still pending, Appell

ant filed in federa

l district court a § 22 54 application for w rit of habeas corpus (19 98 application) ch allenging aspects of his original con viction. On May 24, 1998,

the district court di smissed Appella nt’s 1998 applicatio

n without prejudice

for failure to exha

ust his remedie s in state court. Meanwhile, the st

ate courts affirm

ed Appellant’s r

esentencing and the mandate issued o

n June 5, 1998. Appel

lant then filed vari

ous applications for3 Appellant filed a petition to invoke all writs jurisdiction with the Florida Supreme Court

on June 3, 1998, which

was denied on Nove

mber 9, 1998. Appe

llant filed a motion

for a state writ of habeas corpus on December 1, 1998, which was finally de nied on February 3, 1999. Appellant filed a Rule 3.800(a) motion for post-conviction relief on April 6, 1999, which was finally denied on September 13, 1999. Appellant filed a Rule 3.850 and 3.800(a) motion for post-conviction relief on September 28, 1999, which was finally denied on January 8, 2001. 4 state post-conviction

or other collatera

l review, all of

which were even

tually denied. 3 On January 16,

2001, Appellant fil

ed another § 2254 application for writ of habeas corpus (2001 a

pplication) in feder

al district court. The 2001 application contained the sam

e four claims raised in his 1998 application, as well as a fifth claim in which

Appellant alleged h

e was resentence

d to a harsher sente

nce in violation of his due process rights. Appellees argued the 2001 application was untimely unde

r § 2244(d)(1). In

response, Appella

nt argued the filing da

te of his 2001 application should r elate back to his 1998 a

pplication. The dis

trict court, however, reason

ed that since Appell

ant’s conviction be

came final pr

ior to April 24, 1996, he had until April 23, 1997, absent any tolling, to file a federal habeas petition reg arding such convi ction. See Wilcox v. Flo rida Dep’t. of Corr. , 158 F.3d 1209, 1211 (11t h Cir. 1998) (holding petitioners whose convictions become final befor e the e nactme nt of A EDPA mus t be pr ovid ed a re ason able t ime to file their § 2254 pet

itions, and one ye

ar from the effective date is a reasonable period). Measuri

ng the one-year

statute of limi

tations from A

pril 24, 1996, the5

district court found Appellant’s 2001 application to be untimely. The district court also noted that Appellant’s 1998 application, which had previously been dismissedwithout prejudice for failure to exhaust state remedies, was also filed after the oneyear time limit had expire

d. Appellant filed a m

otion for reconsider

ation, arguing the st

atute of limitations should

be measured f

rom the date of

his resentencing, a

nd not from the effective date of

the AEDPA, b ecause under § 2244(d )(1)(D) the date

of his resentencing was t

he earliest date on

which the factual

predicate of his fi

fth claim could have been discovered. Appellant argued his 2001 application, as a whole, was timely under the one-year statute of lim itations in § 2244(d)(1), measured from the date o f his resentencing a nd tolled during the pend ency of his prope

rly filed applications f

or state post-convic

tion relief. In ot

her words, he ar

gued that, as long as one claim in his application was timely, the entire application was timely, e ven though other individua l claims withi

n the application appe

ared to be untimely when v iewed by themse lves. The di strict cou rt denied A ppellant ’s motion to reconsi

der. This appeal

followed. II. The first issue upon which we granted a certificate of a

ppealability is whether individual claims within a single habeas petition may be reviewed6

separately for timeliness, in light of Artuz v. Bennett , 531 U.S. 4, 12 1 S. Ct. 361 (2000). The answ

er to this question depe

nds upon the interpreta

tion of the statute of limitations contained in § 2244(d)(1). “We begin our construction of [a statute] where courts should always begin the process of legislat

ive interpretation,

and where they often should end it as well, which is with the words of the statutory provision.” Harris v. Garner , 216 F.3d 970, 972 (1 1th Cir. 2000). Section 2244(d) provi

des: (1) A 1-year

period of limita

tion shall apply to an application for a writ of habeas cor

pus by a person in c

ustody pursuant to th

e judgment of a State court. The limitation period shall run from the latest of – (A) the date on wh

ich the judgme

nt became fina

l by the conclusion of direct

review or the expi

ration of the tim

e for seeking such revie w; (B) the date on whi

ch the impedim

ent to filing an application created by Sta

te action in violation o f the Constitution or la ws of the United States i s removed, if the applicant was p

revented from filing by such Sta

te action; (C) the date on whi

ch the constitutional r

ight asserted was i

nitially recognized by th

e Supreme Cou

rt, if the right ha

s been newly recognized by th

e Supreme Cou

rt and made re

troactively applicable to cases

on collateral revi

ew; or (D) th e date on whi ch the factu al pre dicat e of th e clai m or cla ims presented could have

been discovered thr

ough the exercise of

due diligence.7

(2) The time

during which a prope

rly filed application for State post

conviction or other collateral review with respect to the

pertinent judgment or cl

aim is pending sha

ll not be counted towa

rd any period of limitation unde

r this subsection. 28 U.S.C. § 2244(d) (emphasis added). The stat ute dir ects th e court to look at wheth er the “ap plicat ion” is timely, not whether the indiv

idual “claim

s” within the applica

tion are timely

. The statute provides a single stat

ute of limitati

ons, with a single f

iling date, to be appl

ied to the application as a whole. The statu te also provides that t

his single deadline sha

ll run from the “

latest of” severa

l possible triggering d

ates contained in subparagraphs (A) th rough (D). Although the Suprem

e Court has not addre ssed this particular issue, the Court’s analy

sis in Artuz

guides our determinati on. Artuz dealt with whether an application for stat

e post-conviction re

lief that contains pr

ocedurally bar

red claims is nevertheless “

properly filed

” within the me

aning of § 2244(d)(2) so as to toll the limitation peri

od. In holding that it w

as, the Court em

phasized the distinct

ion between an “a

pplication” and “

claims” withi

n an application: By construing “

properly filed

application” to m

ean “applicat

ion raising claims that are no t mandatorily procedurally barred ,” petitioner elides the

difference betw

een an “applic ation” and a “claim. ” Only individual claims , and not the applica tion containing those claims, can be proced urally defaulted under s tate law . . . . Ignoring this distinction would require judges to engage in verbal8

gymnastics when an application contains some claims that are procedurally ba

rred and some t

hat are not. Pre sumably a court would have to say that the application is “properly filed” as to the nonbarred claims, and not “properly filed” as to the rest. The statute, however, refers only to “

properly filed

” applications and doe s not contain the peculiar suggestion th

at a single applicat

ion can be both “pr

operly filed” and not “

properly filed.” Ordinary English would refe

r to certain claims as havi ng been proper ly presented or raised , irrespective of whether the application containing those claims was properly filed

. Artuz , 531 U.S. at 9-10, 121 S. Ct. at 3 64-65. Our interpretati

on of § 2244(d)(1) is si

milarly gui

ded by the distinct

ion between an application and claims within an applicati on, and by the pre sumption that Congress und erstood the differen ce when drafting AEDPA. Section 2244(d)(1) refers only to a one-year limitation period that applies to “an application. ” (emphasis ad ded). The statute

does not suggest that a s ingle application can be timely as to some claims and untimely as to othe r claims. To hold that, under § 2244(

d)(1), a court ca

n dismiss some

claims as untim

ely and retain jurisdiction over other timely claims would elide the distinction between applications and claims that exists thro ughout § 2244. Compare § 2244(b)(1), (b)(2) & (b)(4) (requiring dism issal of certain claims presented in a secon d or successive § 2254 application) with §§ 2244(d)(1) (apply ing a one-year

period of limitation to an application ).9

One of the leading t

reatises on habeas c

orpus law recogniz

es that the limitation peri

od applies to applicat

ions and not to individual c laims: Because the statuto

ry scheme

conditions the com

menceme nt of the limitations p eriod in part on the da te on which the petit

ioner or movant first gained access to the legal or factual bases for a particular

“ claim ”–and it also ties its t olling provision for sta

te postconviction proceedings to pro ceedings “with respect to the pertinent . . . claim”–a peti

tion or motion wi

th multiple clai

ms may have different triggering dates for

its various claim

s. If so, two ques

tions arise: Does the deadline f

or the filing of a hab eas corpus petition or section 2255 motion vary

from claim

to claim, or i s there a single dea dline that applies to the ent

ire petition or m

otion? And, if the lat

ter, what is the single deadline–th

e earliest or the l

atest of the various claims’ limitations per

iod, or some othe

r date? Although AE

DPA does not clearly resol

ve this issue, its lan

guage strongly sugg

ests that the applicant has until the end of the latest of the claims’ limitation periods to file the a

pplication. Thus,

AEDPA provide s that “[a] 1- year period of

limitation shall

apply to an application for a writ of habeas corpus” and “shall run from the latest of” the various possible time periods se

t forth in the statute . This language str ongly suggests Congress’ intention both that a single filing date apply to the entire “application, ” and that the deadlin e be determine

d by the “lat

est” of the limitation periods for the claims raised in the petition. . . . Given Congress’ objec

tive of stream

lining the habeas cor

pus process, it seems hi ghly unl ikely th at Cong ress wo uld hav e opted for a cla im-byclaim approac

h that could require p

iecemeal hab eas corpus litigation on a scale never before imagined. 1 Randy Hertz

& James S. L

iebman, Fede

ral Habeas Corpus

Practice and Procedure (4th ed.

2001) § 5.2b at 266-67 & n.70 (footnotes om

itted and footnote text appended to end of quote).10

The Third Circuit, one of the few courts to have addressed this issue, agrees that a single limitatio n period applies to the entire applicati on. See Sweger v. Chesney , 294 F.3d 506, 514 (3 rd Cir. 2002). In Sweger , the Third Circuit criticized the dist

rict court for holdi

ng that the limita

tion period in § 2244(d)( 1) “applies to each and every clai m on an independent bas is.” 294 F.3d at 515-1 6. As the Third Circuit explained, this is “flatly incorrect.” Id. at 516. [T]he Distric

t Court erred in hold

ing under the AEDP

A that separate one-year limitations periods apply to each claim raised in a habeas petition, and that ea

ch limitations pe

riod runs from t

he exhaustion of state remedies for each claim. . . . [T]he AEDP

A expressly es

tablishes that the lim

itations period applies “to an application for a writ of habe as corpus” and runs f

rom “the date on which the judgment became final .. .” 28 U.S.C. § 2244(d)(1) (em

phasis added) . . .. This provision m akes no mention of a limitations period for individual claims in a habeas petition. It clear

ly applies to the e

ntire habeas petitio

n and runs from the date on which the

judgment that t

he habeas petition at

tacks became final . The District Court's reading is co ntrary to the pla

in language of § 2244(d)(1). Id. at 515. We agree. T

he statute of lim

itations in § 2244(d)(1)

applies to the application as a whole; individual claims within an application cannot be reviewed separately fo

r timeliness. We reach this conclusion in light of the text and structure of AED

PA. Section 2244(

d)(1) states the lim

itation period shall a

pply to4 Appellant’s 2001 application was not a second or successive application under

§ 2244(b) becaus

e Appellant’s 199 8 application was dismissed without pr

ejudice for fai

lure to exhaust state remedies. See Slack v. McDaniel , 529 U.S. 473, 486-87, 120 S. Ct. 1595, 1605 (2000) (holding

that dismissal of pe

titioner’s § 2254 a

pplication for fa

ilure to exhaust stat

e remedies does not render a subsequent application second or successive). Therefore, w e have no occasion to decide whether and to what extent § 2244(b) allows a petitioner, who filed one habeas applica

tion and is then res

entenced, to brin

g another habe

as application tha

t, in part, challenges his r

esentencing. O

ther courts have

suggested tha

t in such a case the

district court is allowed to separate the new claims challenging the resentencing f rom the old claims that were or should have been presented in the prior application. See In re Taylor , 171 F.3d 185, 188 n .* (4th Cir. 1999) (stating the district court is “in the best position to separate the ‘new’ issues from any which existed at the

time the applicant

filed an earlier

§ 2255 motion and to lim it his consideration of

the motion accord

ingly”); Walker v. Rot

h , 133 F.3d 454, 455 n.1 (7th Cir. 1997) (“Of course, had Walker sought to challenge aspects of his conviction [as opposed to aspects of his resentencing] the district court would have been correct in dismissing his petition as successive.”); Galtieri v. United States , 128 F.3d 33, 37-3 8 (2nd Cir. 1997) (“ [W]henever a first 2255 petition succeeds in having a sentence amended, a subsequent 2255 petition will be regarded as a ‘first’ petition only to the extent that it seeks to vacate the new, a mended component of the se

ntence, and will b

e regarded a

s a ‘second’ peti

tion to the extent that

it challenges the underlying conviction or seeks to vaca te any component of the original sentence that was not amended.”). We mention these cases only to note that our holding that courts cannot separately consider the timel

iness of claims und

er § 2244(d)(1)

is not inconsistent w

ith these courts of appea

ls decisions sugg

esting that cour

ts can separate

ly consider

whether claims presented in a subsequent application should be dismissed under § 2244(b) or § 2255. As we already noted, the text of the statute authorizing dismissal of claims in a second or successive application is claim specific, whereas the statute of limitations in § 2244(d)(1) applies only to an “application.” The difference in the text of the statute is enough to distinguish those cases from this one. 11 “an application for a writ of habe as corpus.” Contra

st the language in § 2244( d) creating a statute of limitations with the language in § 2244(b) requiring dismissal of certain claims presented in a second or successive application. The former speaks only to the t

imeliness of the

“application, ” while the latter allows for the dismissal of “

claims” withi

n a second or successive application if the y were or could have been prese

nted in a prior application. 4 Our holding is consiste nt with5 Our holding is also consistent with Rose v. Lundy , 455 U.S. 509, 102 S. Ct. 1198

(1982). In Rose , the Supreme Court addressed what t

o do when a petition

contains both unexhaust

ed and exha

usted cla ims under §

2254(b). Section 22 54(b)(1)(A) state s that “[a]n application for writ of habeas corpus . . . shall not be granted unless . . . the applicant has exhausted the remedies available in the courts of the State . . . .” 28 U.S.C. § 2254(b)(1)(A). The Rose Court decided on a rule of total exhaustion; district courts should dismiss “mixed” petitions that contain both exhausted and unexhausted claims. Rose , 455 U.S. at 522, 102 S. Ct. at 1205. A

lthough t he Suprem

e Court did

not focus on the stat

utory t ext in its op

inion, the text of the § 2254(b)( 1)(A) refers t o the granting

of “an applicati

on,” and does not su

ggest that cou

rts can separate claims within an application. The Court, moreover, did stress the importance of consolidating ha

beas review in a

single procee

ding. Our holding

that courts canno

t separately consider claims within an application for timeliness under § 2244(d)(1) is consistent with the Supreme Court's interpretation of § 2254(b)(1)(A) as well as the policy c onsiderations behind Rose

. 12 the Supreme C ourt’s direction i n Artuz to distinguish between the term “application” a

nd “claim”

when interpreting § 2244, and is also consis tent with other courts and commentators who have addressed the issue. 5
III. The next question we certified for appeal is whether, in this case, the district court properly dismissed Appel lant’s petition. The district court reasoned that, since Appellant’ s conviction becam e final before the

effective date of

AEDPA, the statute of limit

ations should be me

asured from th

e effective date

of AEDPA, A

pril 24, 1996. See Wilcox , 158 F.3d at 1211. U sing this date as the st

arting point, the district court found t

he application was n

ot timely. Appellant argues t he statute of limitations should be measured from the date of his resentencing, because under13

§ 2244(d)(1)(D) the factual predicate of his fifth claim could not have been discovered before th en. Appellant, howeve

r, need not resort

to subparagraph (D

). His applicati

on is timely because under subparagr aph (A) we m

easure the statute

of limitations f

rom the date on which the

resentencing judgm

ent became fi

nal. We have pr

eviously held that under § 2244(d

)(1)(A) the sta

tute of limitat

ions for a habeas app

lication challenging a resen

tencing court’s j udgment begins to r un on the date the

resen tenci ng jud gment b ecame f inal a nd no t the d ate th e orig inal j udgme nt bec ame final. Hepburn v. Moore , 215 F.3d 1208, 1209 ( 11th Cir. 2000); see also Maharaj v. Sec’y for the D

ep’t of Corr. , 304 F.3d 1345, 134 6 (11th Cir. 2002). The Hepburn court, however, did not address how to m easure the statute

of limitations for a habeas application, like Appellant’s 2001 application, that

cont ains c laims c halle ngin g the r esent encin g judg ment as well a s clai ms challenging the origin

al judgment of

conviction. Appell

ant’s original con

viction became final b y the conclu sion of di rect review o n August 7 , 1991. Appe llant’s resentencing judgment, however, did not become final by the conclusion of direct review until June 5,

1998. Appellant wa

s allowed to challe

nge both of these judgments in a s

ingle habeas petition under Rule 2(d) of t he Rules Governing6 Rule 2(d) of the Rules Governing Section 2254 Cases states: “A petition shall be limited

to the assertion of a claim for relief against the judgment or judgments of a single state court (sitting in a county or other political subdivision). If a petitioner desires to attac k the validity of the judgments of t

wo or more state c

ourts under which

he is in custody

or may be sub

ject to future custody, as the case may be, he shall do so by separate petitions.” (emphasis added).

14 Section 2254 Cases. 6 Since the limi tations period in § 2244(

d)(1) must run f

rom the “latest” of

the several possible

triggering dates pro

vided in its subparagra

phs, the limitations p eriod for Appella nt’s application r

uns from June 5,

1998, the date upon which Appellant ’s resentencing j udgment becam e final by the conclusion of direct review,

under subparagraph (

A). Furtherm

ore, under § 2244(d) (2), the limitations period was tolled during the pendency of Appellant’s properly filed applications for s tate post-convict ion or other collat eral review. See n.3, supra . Using these dates,

we conclude Appel

lant’s 2001 applica

tion was filed with

in the one-year limitation period provided in § 2244(d)(1). IV. We recognize th

at § 2244(d)(1) as w

ritten allows for t

he resurrection of what seem to be

time-barre

d claims tagging a

long on the coattails of

a timely claim. Neve

rtheless, Congres s wrote the statute , and we cannot see how it can be read any other

way without de

parting from th

e plain meaning o f the words of the statute. The Supreme Court has advised that “[w]hatever merits . . . policy15

arguments m

ay have, it is no

t the province of this Court to rewrite t he statute to accommodate them.” Artuz , 531 U.S. at 10, 121 S. Ct. at 36 5. REVERSED and REMANDED.

BIRCH, Circuit Judge, concurs dubitante.