[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 15522 Non

- Argument Calendar

________________________ D.C. Docket No. 3:13

- cv - 00712

- BJD

- PDB

RAMON F. DANNY, JR., Petitioner

- Appellant,

versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA ATTOR NEY GENERAL, Responden ts

- Appellees.

________________________ Appeal from the United States District Court for the Middle District of Florida

___________________ _____ (February 3, 2016) Before WILLIAM PRYOR , JULIE CARNES and FAY , Circuit Judges. WILLIAM PRYOR, Circuit Judge :

Case: 14-15522 Date Filed: 02/03/2016 Page: 1 of 82 This appeal presents the issue whether a petition for a belated direct appeal , under Florida Rule of Appellate Procedure 9.141(c), qualifies as an “applicati on for State . . . collateral review , ” 28 U.S.C. § 2244(d)(2) , that, while pending, tolls the period of limitation for a Florida prisoner’s federal petition for a writ of habeas
corpus . We answer that question in the negative based on our recent decision in Espinosa v. Secretary, Department of Corrections , 804 F.3d 1137 (11th Cir. 2015), which held that a petition for belated postconviction appeal under Rule 9.141(c) does not “involve ‘collateral review’ of [a] conviction” for the purpose of toll ing the sa me statute of limitation. Id. at 1139

. Because Ramon F. Danny Jr. ’s petition
for a belated direct appeal does not qualify as a n application for state collateral review , w e affirm the dismissal of his petition for a writ of habeas corpus as untimely

. I. BACKGROUND On September 9, 2010, Danny pleaded guilty to the crim e of lewd or lascivious molestation of a victim who was less than 12 years old. See Fla. Stat. § 800.04(5)(b). Danny pleaded guilty b ecause the state agreed to waive the statutory minimum sen tence of 25 years of imprisonment , id. § 775.082(3)(a) (4) , and to request a sentence of 10 years of imprisonment. That day, a Florida court
sentenced Danny to 10 years of imprisonment followed by 10 years of supervised probation

. Danny did not file a direct appeal.

Case: 14-15522 Date Filed: 02/03/2016 Page: 2 of 83 On February 18, 2011, Danny petitioned for a belated direct appeal on the ground that his attorney had disregarded his directions to file a motion to withdraw his plea and a notice of appeal. See Fla. R. App. P. 9.141(c). The First District Court of Appeal relinquished jurisdiction to the trial court , which appoint ed a special master to consider Danny’s petition. Following an evidentiary hearing, the special master issued a report that recommended denying the petition. On October 19, 2011, the First District Court of Appeal denied Danny’s petition

. Danny twice collateral ly attacked his conviction in the Florida courts. On September 17, 2011, Danny mo ved for postconviction relief base d on the ineffectiveness of trial counsel, s ee Fla. R

. Crim. P. 3.850 , but the trial court denied the motion as “lack[ing] any factual basis

. ” The First District Court of Appeal affirmed and issued its mandate on November 14, 2012. On January 3, 2013, Danny again moved for postconviction relief on the grounds of ineffectiveness of counsel and of insufficient evidence , s ee id

. , but t he trial court denied Danny’s motion as untimely , successive, and frivolous

. On June 15, 2013, Danny filed pro se a petition for a writ of habeas corpus in the distric t court

. 28 U.S.C. § 2254

. The State of Florida moved to dismiss Danny’s petit ion as barred by the one

- year statute of limitation. I d. § 2244(d)(1). Danny argu ed that his petition was timely because the limitation period w as tolled while his petition for a belated direct appeal was pending in the Florida court s .

Case: 14-15522 Date Filed: 02/03/2016 Page: 3 of 84 The district court dismissed Danny’s petition for a writ of habeas corpus as untimely

. See id. Danny’s petition for a belated direct appeal , the district court reasoned, did no t toll the running o f the statute of limitation because the state courts refused to “reopen direct review” and because Danny’s petition did not “entail direct or collateral review of a judgment of conviction or sentence in Florida.” The district court determined that Danny fi led his federal petition several months after the limitation period expir ed . The district court conclude d that the

one - year limitation period commenced on October 13, 2010 , when the time expired for Danny to fil e a direct appeal , and ran for 339 days ; that the period was tolled
from September 17, 2011 , to November 14, 2012, while Danny ’s first motion for state postconviction relief remained pending ; and that the limitation period resumed running on November 15, 2012 , and expired on December 11, 2012 , si x months before Danny filed his federal petition on June 15, 2013

. II. STANDARD OF REVIEW We review de novo the dismissal of a petition for a writ of habeas corpus as untimely. Pugh v. Smith , 465 F.3d 1295, 1298 (11th Cir. 2006)

. III. DISCUSSION The timel iness of Danny’s petition for a writ of habeas corpus turns on whether the petition for a belated direct appeal that he filed in a Florida court qualifies for statutory tolling as an “ application for S tate

. . . collateral review .” 28

Case: 14-15522 Date Filed: 02/03/2016 Page: 4 of 85 U.S.C. § 2244(d)(2). Danny argues that his petition is an application for collateral review because it involved a matter peripheral to a direct review of his conviction and was filed under a rule entitled “Review Proceedings in Collateral or P ost

C onviction Criminal Cases

. ” Th e State of Florida responds that Danny’s petition requested the opportunity to pursue a direct appeal an d that the title of Florida Rule of Appellate Procedure 9.141 d oes not a lter the nature of the relief that Danny sought

. We conclude that Danny’s petition for a belated direct appeal is bereft of the characteristics of an application for c ollateral re view u nder section 2244(d)(2) and that the district court correctly dismi ssed Danny’s petition as untimely

. Our recent decision in Espinosa , 804 F.3d 1137 , forecloses Danny’s argument

. Espinosa sought statutory tolling of the one

- year statute of limitation for the period while his petition for belated postconviction appeal remained pending

. Id. at 1140 ; s ee Fla. R. App. P. 9.141(c); Fla. R. Crim. P. 3.8 50. But w e held that a petition for a belated appeal does not qualify as an application for collateral review because, under Florida law, it “ does not reach the merits of the anticipated appeal or the validity of the order to be appealed

. ” Espinosa , 804 F.3d at 1141 (quoting
Jones v. State , 922 So. 2d 1088, 1090 (Fla. Dist. Ct. App. 2006) ). Our decision in Espinosa adhered to the interpret at ion of the phrase “collateral review” provided by the Supreme Court in Wall v. Kholi ,
__ U.S.

__ , 131 S. Ct. 1278 (2011)

. In Kholi , the Supreme Court explained that , “ t o trigger the

Case: 14-15522 Date Filed: 02/03/2016 Page: 5 of 86 tolling provision, [the] ‘ collateral ’ proceeding must also involve a . . . ‘ review , ’ ” id. at 1285, in which there is “a looking over or examination with a view to amendment or improvement ,” id. (quoting Kholi v. Wall , 582 F.3d 147, 153 (1st Cir. 2009))

. C ollateral review inv ite s “ a judicial reexamination of a judgment or claim .” Id. In Kholi , the Court rul ed that a motion for reduction of sentence filed
under a r ule of c riminal p rocedure in Rhode Island qualified as an application fo r collateral review because it initiated a proceeding in which a state court could modify the movant’s sentence. Id. at 1286

– 87. The Supreme Court distinguished that motion from “ a motion for post

- conviction discovery or a motion for appointment of counsel, which generally are not direct requests for judicial review of a judgment and do not provide a state court with authority to order relief from a judgment. ” Id. at 1286 n.4. Both Espinosa and Kholi were consistent with our earlier precedent that a Florida prisoner’s motion for biological testing did not qualify as an application for collateral review. Brown v. Sec’y for the Dep’t of Corr. , 5 30 F.3d 1335 (11 th Cir. 2008). Brown sought statutory tolling for the period during which his motion f or DNA testing under Florida Rule of Criminal Procedure 3.85 3 remained pending

. Id. at 1337. Brown’s motion did not qualify for statutory tolling , we reasoned , because it “involve[d] an application for discovery only” and did not impart authority to the state courts to give Brown “ relief from [his] sentence or

Case: 14-15522 Date Filed: 02/03/2016 Page: 6 of 87 conviction

. ” Id. That r elief, we explained, had to be pursued in a different

“ proceeding under Florida’s collateral attack rules.” Id. Danny’s petition for a belated direct appeal d id not inv ite “ a judicial reexamination of a judgment or claim

. ” Kholi , 131 S. Ct. a t 1285

. A petition for relief under Rule 9.141(c) requests that a state court “review[] the grounds for relieving the petitioner of his .

. . failure to timely seek . . . an appeal.” Jones , 922 So. 2d at 1090. The p etition , if successful, only re viv es a petitioner ’s right to prosecute a direct appeal. See Fla. R. App. P. 9.141(c). If the petitioner proves that he has been deprived of a direct appeal due to no fault of his own, see Fla. R. App.
P. 9.141(c)(4)(F), the state court issues “[a]n order granting a petition for belated appeal . . . [ that is] treated as the notice of appeal , ” Fla. R. App. P. 9.141(c)(6)(D).
In contrast , t o qualify for statutory tolling , a collateral plead ing must “request []

. . . judicial review of a judgment and

. . . provide a state court with authority to order relief from a judgment

. ” Kholi , 131 S. Ct. at 1286 n.4

. Danny’s petition did neither

. Danny argues that his petition should be treated as an application for collateral review because the Florida rule that governs his petition is en titled , “Review Proceedings in Collateral or Post

- Conviction Criminal Cases,” but that label is of no moment. “ [F] or purposes of applying a federal statute that interacts with state procedural rules, we look to how a state pr ocedure functions, rather than the particular name that it bears ,” Carey v. Saffold , 536 U.S. 214, 223, 122 S. Ct.

Case: 14-15522 Date Filed: 02/03/2016 Page: 7 of 88 2134, 2140 (2002) , and a proceeding under Rule 9.141(c) does not entail “examination with a view to amendment or improvement” of a judgment o r claim

. Kholi , 131 S. Ct. at 1285. As we explained in Espinosa , our decision that a Florida prisoner’s petition for belated appeal does not toll the limitation period for a federal petition creates symmetry with how Florida courts treat the same kinds of filings: Our reasoning mirrors how a Florida court would treat a petition for a belated direct appeal in determining the timeliness of a state motion for collateral review. That is, an unsuccessful petition for belated appeal of a criminal conviction, unde r Florida law, does not toll the limitation period for state collateral review. See Jones , 922 So. 2d at 1089

– 90. Unlike motions for a new trial, for rehearing, or to correct a sentence, which do toll the rendition of a final order, a petition for belated appeal “does not challenge directly any specific ruling” in the criminal case. Id. at 1090. In the same way, f iling a petition for belated appeal of an order denying state collateral relief does not toll the federal limitation period for a petition for a writ of habeas corpus. 804 F.3d at 1141

. IV. CONCLUSION
We AFFIRM the dismissal of Danny’s petition for a wri t of habeas corpus

. Case: 14-15522 Date Filed: 02/03/2016 Page: 8 of 8