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 No. 01-00053-CV-ORL-31

EXUM WALKER,

Petitioner-Appellant,

versus

JAMES CROSBY,

Secretary, Department of Corrections, and

CHARLIE CRIST,

Attorney General of the State of Florida,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District 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 unlawful possession

of materials depicting sexual performance by a child. Appellant plead guilty 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-year statute of limitations contained in the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). We

granted a certificate of appealability as to the following issues: (1) 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 (2000); and

(2) whether, in this case, the district court properly dismissed Walker’s 28 U.S.C.

§ 2254 habeas petition as untimely.1

 The plain language of § 2244(d)(1)

convinces us the answer to both questions is no.

I.

In May 1990, Appellant was convicted in state court of three counts of

committing a lewd act in the presence of a child and one count of committing a

lewd act upon a child.

2

 In July 1990, Appellant was sentenced on all of these

counts and received a total of 25 years’ incarceration followed by 30 years’
3

probation. Appellant’s conviction and sentence were affirmed on direct appeal,

and the mandate issued on August 7, 1991. 

In the course of the next six years, Appellant filed several collateral attacks

in state court, all of which were denied. In October 1997, however, Appellant

filed a motion to correct his sentence under Florida Rule of Criminal Procedure

3.800, and the state court granted this motion with respect to Appellant’s

probationary sentence. On February 4, 1998, Appellant was resentenced to 15

years’ probation as to one of the counts for which he was convicted and 15 years’

probation as to another count, to run consecutively. Appellant appealed the

resentencing judgment.

On February 24, 1998, while the appeal to his resentencing judgment was

still pending, Appellant filed in federal district court a § 2254 application for writ

of habeas corpus (1998 application) challenging aspects of his original conviction. 

On May 24, 1998, the district court dismissed Appellant’s 1998 application

without prejudice for failure to exhaust his remedies in state court.

Meanwhile, the state courts affirmed Appellant’s resentencing and the

mandate issued on June 5, 1998. Appellant then filed various applications for
3Appellant filed a petition to invoke all writs jurisdiction with the Florida Supreme Court

on June 3, 1998, which was denied on November 9, 1998. Appellant filed a motion for a state

writ of habeas corpus on December 1, 1998, which was finally denied 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 collateral review, all of which were eventually

denied.3

On January 16, 2001, Appellant filed another § 2254 application for writ of

habeas corpus (2001 application) in federal district court. The 2001 application

contained the same four claims raised in his 1998 application, as well as a fifth

claim in which Appellant alleged he was resentenced to a harsher sentence in

violation of his due process rights. Appellees argued the 2001 application was

untimely under § 2244(d)(1). In response, Appellant argued the filing date of his

2001 application should relate back to his 1998 application. The district court,

however, reasoned that since Appellant’s conviction became final prior to

April 24, 1996, he had until April 23, 1997, absent any tolling, to file a federal

habeas petition regarding such conviction. See Wilcox v. Florida Dep’t. of Corr.,

158 F.3d 1209, 1211 (11th Cir. 1998) (holding petitioners whose convictions

become final before the enactment of AEDPA must be provided a reasonable time

to file their § 2254 petitions, and one year from the effective date is a reasonable

period). Measuring the one-year statute of limitations from April 24, 1996, the
5

district court found Appellant’s 2001 application to be untimely. The district court

also noted that Appellant’s 1998 application, which had previously been dismissed

without prejudice for failure to exhaust state remedies, was also filed after the oneyear time limit had expired.

Appellant filed a motion for reconsideration, arguing the statute of

limitations should be measured from the date of his resentencing, and not from the

effective date of the AEDPA, because under § 2244(d)(1)(D) the date of his

resentencing was the earliest date on which the factual predicate of his fifth claim

could have been discovered. Appellant argued his 2001 application, as a whole,

was timely under the one-year statute of limitations in § 2244(d)(1), measured

from the date of his resentencing and tolled during the pendency of his properly

filed applications for state post-conviction relief. In other words, he argued that,

as long as one claim in his application was timely, the entire application was

timely, even though other individual claims within the application appeared to be

untimely when viewed by themselves. The district court denied Appellant’s

motion to reconsider. This appeal followed.

II.

The first issue upon which we granted a certificate of appealability is

whether individual claims within a single habeas petition may be reviewed
6

separately for timeliness, in light of Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361

(2000). The answer to this question depends upon the interpretation 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 legislative 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 (11th Cir. 2000). 

Section 2244(d) provides:

(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 limitation 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 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.
7

(2) The time during which a properly filed application for State postconviction 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 statute directs the court to look at whether the “application” is timely,

not whether the individual “claims” within the application are timely. The statute

provides a single statute of limitations, with a single filing date, to be applied to

the application as a whole. The statute also provides that this single deadline shall

run from the “latest of” several possible triggering dates contained in

subparagraphs (A) through (D). 

Although the Supreme Court has not addressed this particular issue, the

Court’s analysis in Artuz guides our determination. Artuz dealt with whether an

application for state post-conviction relief that contains procedurally barred claims 

is nevertheless “properly filed” within the meaning of § 2244(d)(2) so as to toll the

limitation period. In holding that it was, the Court emphasized the distinction

between an “application” and “claims” within an application:

By construing “properly filed application” to mean “application

raising claims that are not mandatorily procedurally barred,”

petitioner elides the difference between an “application” and a

“claim.” Only individual claims, and not the application containing

those claims, can be procedurally defaulted under state law . . . . 

Ignoring this distinction would require judges to engage in verbal
8

gymnastics when an application contains some claims that are

procedurally barred and some that are not. Presumably 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 does not contain the

peculiar suggestion that a single application can be both “properly

filed” and not “properly filed.” Ordinary English would refer to

certain claims as having been properly 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 364-65. 

Our interpretation of § 2244(d)(1) is similarly guided by the distinction

between an application and claims within an application, and by the presumption

that Congress understood the difference when drafting AEDPA. 

Section 2244(d)(1) refers only to a one-year limitation period that applies to “an

application.” (emphasis added). The statute does not suggest that a single

application can be timely as to some claims and untimely as to other claims. To

hold that, under § 2244(d)(1), a court can dismiss some claims as untimely and

retain jurisdiction over other timely claims would elide the distinction between

applications and claims that exists throughout § 2244. Compare § 2244(b)(1),

(b)(2) & (b)(4) (requiring dismissal of certain claims presented in a second or

successive § 2254 application) with §§ 2244(d)(1) (applying a one-year period of

limitation to an application).
9

One of the leading treatises on habeas corpus law recognizes that the

limitation period applies to applications and not to individual claims:

Because the statutory scheme conditions the commencement of

the limitations period in part on the date on which the petitioner or

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

“claim”–and it also ties its tolling provision for state postconviction

proceedings to proceedings “with respect to the pertinent . . .

claim”–a petition or motion with multiple claims may have different

triggering dates for its various claims. If so, two questions arise: 

Does the deadline for the filing of a habeas corpus petition or section

2255 motion vary from claim to claim, or is there a single deadline

that applies to the entire petition or motion? And, if the latter, what is

the single deadline–the earliest or the latest of the various claims’

limitations period, or some other date? Although AEDPA does not

clearly resolve this issue, its language strongly suggests that the

applicant has until the end of the latest of the claims’ limitation

periods to file the application. Thus, AEDPA provides 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 set forth in the statute. This language strongly suggests

Congress’ intention both that a single filing date apply to the entire

“application,” and that the deadline be determined by the “latest” of

the limitation periods for the claims raised in the petition. . . . Given

Congress’ objective of streamlining the habeas corpus process, it

seems highly unlikely that Congress would have opted for a claim-byclaim approach that could require piecemeal habeas corpus litigation

on a scale never before imagined.

1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

Procedure (4th ed. 2001) § 5.2b at 266-67 & n.70 (footnotes omitted 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 limitation period applies to the entire application. See Sweger v.

Chesney, 294 F.3d 506, 514 (3rd Cir. 2002). In Sweger, the Third Circuit

criticized the district court for holding that the limitation period in § 2244(d)(1)

“applies to each and every claim on an independent basis.” 294 F.3d at 515-16. 

As the Third Circuit explained, this is “flatly incorrect.” Id. at 516.

[T]he District Court erred in holding under the AEDPA that separate

one-year limitations periods apply to each claim raised in a habeas

petition, and that each limitations period runs from the exhaustion of

state remedies for each claim. . . .

[T]he AEDPA expressly establishes that the limitations period

applies “to an application for a writ of habeas corpus” and runs from

“the date on which the judgment became final . . .” 28 U.S.C.

§ 2244(d)(1) (emphasis added) . . . . This provision makes no

mention of a limitations period for individual claims in a habeas

petition. It clearly applies to the entire habeas petition and runs from

the date on which the judgment that the habeas petition attacks

became final. The District Court's reading is contrary to the plain

language of § 2244(d)(1).

Id. at 515.

We agree. The statute of limitations in § 2244(d)(1) applies to the

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

separately for timeliness. We reach this conclusion in light of the text and

structure of AEDPA. Section 2244(d)(1) states the limitation period shall apply to
4

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

§ 2244(b) because Appellant’s 1998 application was dismissed without prejudice for failure to

exhaust state remedies. See Slack v. McDaniel, 529 U.S. 473, 486-87, 120 S. Ct. 1595, 1605

(2000) (holding that dismissal of petitioner’s § 2254 application for failure to exhaust state

remedies does not render a subsequent application second or successive). Therefore, we have no

occasion to decide whether and to what extent § 2244(b) allows a petitioner, who filed one

habeas application and is then resentenced, to bring another habeas application that, in part,

challenges his resentencing. Other courts have suggested that in such a case the district court is

allowed to separate the new claims challenging the resentencing from 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 limit his

consideration of the motion accordingly”); Walker v. Roth, 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, 37-38 (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, amended

component of the sentence, and will be regarded as a ‘second’ petition to the extent that it

challenges the underlying conviction or seeks to vacate 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 timeliness of claims under § 2244(d)(1) is not inconsistent with these

courts of appeals decisions suggesting that courts can separately 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 habeas corpus.” Contrast 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 timeliness of the “application,” while the latter allows for the

dismissal of “claims” within a second or successive application if they were or

could have been presented in a prior application.4

 Our holding is consistent with
5

 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 to do when a petition contains both

unexhausted and exhausted claims under § 2254(b). Section 2254(b)(1)(A) states 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. Although the Supreme Court did not focus on the statutory text in its opinion, the text

of the § 2254(b)(1)(A) refers to the granting of “an application,” and does not suggest that courts

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

consolidating habeas review in a single proceeding. Our holding that courts cannot 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 considerations behind

Rose.

12

the Supreme Court’s direction in Artuz to distinguish between the term

“application” and “claim” when interpreting § 2244, and is also consistent 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 Appellant’s petition. The district court reasoned that,

since Appellant’s conviction became final before the effective date of AEDPA, the

statute of limitations should be measured from the effective date of AEDPA, April

24, 1996. See Wilcox, 158 F.3d at 1211. Using this date as the starting point, the

district court found the application was not timely. Appellant argues the statute of

limitations should be measured from the date of his resentencing, because under
13

§ 2244(d)(1)(D) the factual predicate of his fifth claim could not have been

discovered before then. 

Appellant, however, need not resort to subparagraph (D). His application is

timely because under subparagraph (A) we measure the statute of limitations from

the date on which the resentencing judgment became final. We have previously

held that under § 2244(d)(1)(A) the statute of limitations for a habeas application

challenging a resentencing court’s judgment begins to run on the date the

resentencing judgment became final and not the date the original judgment became

final. Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000); see also Maharaj

v. Sec’y for the Dep’t of Corr., 304 F.3d 1345, 1346 (11th Cir. 2002). 

The Hepburn court, however, did not address how to measure the statute of

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

contains claims challenging the resentencing judgment as well as claims

challenging the original judgment of conviction. Appellant’s original conviction

became final by the conclusion of direct review on August 7, 1991. Appellant’s

resentencing judgment, however, did not become final by the conclusion of direct

review until June 5, 1998. Appellant was allowed to challenge both of these

judgments in a single habeas petition under Rule 2(d) of the Rules Governing
6Rule 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 attack the validity of

the judgments of two or more state courts under which he is in custody or may be subject to

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

14

Section 2254 Cases.6

 Since the limitations period in § 2244(d)(1) must run from

the “latest” of the several possible triggering dates provided in its subparagraphs,

the limitations period for Appellant’s application runs from June 5, 1998, the date

upon which Appellant’s resentencing judgment became final by the conclusion of

direct review, under subparagraph (A). Furthermore, under § 2244(d)(2), the

limitations period was tolled during the pendency of Appellant’s properly filed

applications for state post-conviction or other collateral review. See n.3, supra. 

Using these dates, we conclude Appellant’s 2001 application was filed within the

one-year limitation period provided in § 2244(d)(1).

IV.

We recognize that § 2244(d)(1) as written allows for the resurrection of

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

claim. Nevertheless, Congress wrote the statute, and we cannot see how it can be

read any other way without departing from the plain meaning of the words of the

statute. The Supreme Court has advised that “[w]hatever merits . . . policy
15

arguments may have, it is not the province of this Court to rewrite the statute to

accommodate them.” Artuz, 531 U.S. at 10, 121 S. Ct. at 365. 

REVERSED and REMANDED.

BIRCH, Circuit Judge, concurs dubitante.