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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12219
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-02233-JDW-AAS
JAMES BOOTH,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 6, 2018)
Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit
Judges.
PER CURIAM:
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James Booth, a Florida inmate proceeding pro se, appeals the district court’s
dismissal of his
28 U.S.C. § 2254 petition as untimely.
A jury found Booth guilty of third degree murder with a firearm and
aggravated assault with a firearm. He was sentenced on June 5, 2008 to
consecutive life terms on those convictions. On December 18, 2008 the trial court
granted his motion to correct his sentence and resentenced him to ten years on the
assault conviction, still running consecutively with the life sentence for the murder
conviction. On September 18, 2009 the state appellate court affirmed his
convictions but directed that his sentences should run concurrently, not
consecutively. The Florida Supreme Court denied review on February 10, 2011,
and the judgment became final on May 11, 2011 when the time for filing a petition
for certiorari in the United States Supreme Court expired.
Once the judgment became final, the one-year limitation period for filing a
federal habeas petition began to run. See
28 U.S.C. § 2244(d)(1)(A) (providing
that 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,” and that
the period “shall run from the latest of the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review”).
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On December 15, 2011 (218 days after the judgment became final), Booth
filed a state post-conviction motion, which tolled the limitation period. See
id.
§ 2244(d)(2). The trial court denied that motion, and the state appellate court
affirmed. That motion remained pending until the state appellate court issued its
mandate on December 2, 2013. Once the mandate issued, the limitation clock
began to run again and Booth had 147 days — until April 28, 2014 — to file a
federal habeas petition.
Booth did not file this § 2254 petition challenging his convictions and
sentences until September 5, 2014, which was 130 days after the limitation period
had expired. On October 8, 2014, he filed a motion in the state trial court to clarify
his sentence so that it would reflect the state appellate court’s holding that his
sentences ran concurrently, not consecutively. The trial court granted that motion
on November 6, 2014, stating that its order was a “ministerial correction.” The
next month, the state filed a motion to dismiss his petition as untimely. Booth
argued that the trial court’s November 6, 2014 order restarted the one-year
limitation period, which made his petition timely.
The district court rejected Booth’s argument that the trial court’s order
restarted the limitation period. It also ruled that Booth was not entitled to equitable
tolling and did not qualify for the actual innocence exception to time-barred habeas
petitions. Alternatively, the court ruled that his claims were procedurally barred.
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The court denied him a certificate of appealability, Booth appealed, and we granted
a COA on the following issue: Whether the district court properly dismissed
Booth’s § 2254 petition as time-barred.
We review de novo the court’s dismissal of Booth’s petition as time-barred.
Ferreira v. Sec’y, Dep’t of Corr.,
494 F.3d 1286, 1289 (11th Cir. 2007). Booth
acknowledges that he filed his petition after April 28, 2014, when the one-year
limitation period expired, but he contends that the trial court’s November 6, 2014
order restarted the limitation period, and as a result his petition is timely. 1 That
argument fails.
Section 2244(d)(1)’s “statute of limitations begins to run when the
judgment pursuant to which the petitioner is in custody, which is based on both the
conviction and the sentence the petitioner is serving, is final.”
Id. at 1293.
Although a new judgment that results from resentencing restarts the one-year
limitation period, see
id. at 1292–93, the trial court did not resentence Booth on
November 6, 2014. Instead, as the trial court specified, its order was a “ministerial
correction” reflecting the state appellate court’s holding that Booth’s sentences ran
concurrently, not consecutively. That order did not authorize Booth’s
confinement, nor did it vacate any of his sentences and replace them with new
1
Booth does not challenge the court’s ruling that he is not entitled to equitable tolling and
that he has not demonstrated actual innocence, so he has abandoned those issues. See Timson v.
Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant
are deemed abandoned.”).
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ones. See Patterson v. Sec’y, Fla. Dep’t of Corr.,
849 F.3d 1321, 1326–27 (11th
Cir. 2017) (en banc) (holding that an order granting habeas petitioner’s motion to
correct his sentence did not qualify as a new judgment because the state court
“never issued a new prison sentence . . . to replace” his original sentence or
“issue[d] a new judgment authorizing [his] confinement”). Booth remains
incarcerated under the trial court’s original June 5, 2008 judgment, which was
modified on December 18, 2008, and the November 6, 2014 order does not give
the Florida Department of Corrections any new authority to imprison Booth. See
id. As a result, the court did not err in dismissing his petition as untimely. See
id.
at 1326 (rejecting the argument that “an order that alters a sentence necessarily
constitutes a new judgment”).
AFFIRMED.
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