Vernell, Louis, In Re: , 208 F.3d 1308 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 19 2000
________________________
THOMAS K. KAHN
CLERK
No. 99-10110
Non-Argument Calendar
________________________
D. C. Docket No. 99-00201-CIV-T-26F
JOHN T. HEPBURN,
Petitioner-Appellant,
versus
MICHAEL W. MOORE,
ROBERT A. BUTTERWORTH,
Attorney General of the
State of Florida,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 19, 2000)
Before EDMONDSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Appellant John T. Hepburn filed a pro se 28 U.S.C. § 2254 habeas corpus
petition alleging his Sixth and Fourteenth Amendment rights were violated when he
was denied counsel during re-sentencing on state burglary and assault charges. The
district court dismissed his petition, finding it was time-barred under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214 (1996). We conclude the district court erred in determining Appellant’s
challenge to his resentencing hearing was barred by the AEDPA’s statute of
limitations. We therefore vacate and remand.
We review questions of law presented in a § 2254 petition de novo. See Freund
v. Butterworth, 165 F.3d 839, 861 (11th Cir.) (en banc), cert. denied. 120 S. Ct. 57(1999). The district court’s interpretation and application of a statute of limitations
is a question of law that is subject to de novo review. See United States v. Gilbert,
136 F.3d 1451, 1453 (11th Cir. 1998).
The issue presented in this case is whether the statute of limitations for a habeas
petition challenging a resentencing court’s judgment begins to run from the date of the
judgment of the resentencing hearing, or whether the limitations period should relate
back to the date of the judgment of the original conviction. The plain meaning of the
statute supports the conclusion that the statute of limitations runs from the date of the
resentencing judgment and not the date of the original judgment. Under the AEDPA,
2
the statute of limitations is calculated from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244 (d)(1)(A). The judgment Appellant seeks to challenge is
the judgment at resentencing. The statute of limitations therefore began to run on
October 23, 1998, the date the resentencing order became final by the conclusion of
direct review.
This conclusion is supported by the analysis used in cases concerning the
impact of resentencing on whether a petition is considered second or successive under
the AEDPA. While this case does not involve a second or successive petition, the
courts’ reasoning is persuasive here. Every circuit that has addressed the issue has
agreed that, under the AEDPA, when new claims originate at resentencing, those
claims may be brought in a subsequent habeas petition without the necessity of
obtaining permission from the circuit court before filing the petition. See, e.g., In re
Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999) (holding that when a prisoner raises new
issues that originated at resentencing, the habeas petition raising those new issues is
not second or successive); Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997) (holding
that a petition challenging aspects of resentencing that could not have been raised in
the first petition is not a second or successive petition within the meaning of § 2254);
Galtieri v. United States, 128 F.3d 33, 37-38 (2d Cir. 1997) (holding that new
3
petitions are not second or successive to the extent they seek to vacate a new, amended
component of the sentence); United States v. Scott, 124 F.3d 1328, 1330 (10th Cir.
1997) (holding that a prisoner’s motion to vacate was not successive where his first
motion to vacate resulted in resentencing and reinstatement of his right to direct
appeal). These cases stand for the proposition that the AEDPA cannot be interpreted
to require a prisoner to raise claims before they arise, including claims that originate
in the context of resentencing.
Appellant, therefore, has not lost his opportunity to raise claims relating to his
resentencing in a federal habeas corpus petition. Under AEDPA’s one-year statute of
limitations, Appellant had until October 23, 1999, to file a habeas petition presenting
constitutional challenges to his resentencing. His January 26, 1999, habeas petition
therefore was timely, and the district court erred in dismissing the petition.
VACATED AND REMANDED.
4