USCA11 Case: 21-12535 Date Filed: 07/07/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12535
Non-Argument Calendar
____________________
ANTHONY NEWSOME,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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2 Opinion of the Court 21-12535
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:17-cv-01509-TPB-AAS
____________________
Before WILSON, GRANT and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Anthony Newsome, a Florida prisoner proceed-
ing pro se, appeals the district court’s order denying his motion for
reconsideration, pursuant to Federal Rules of Civil Procedure
52(b), 59(b) & (e), and 60(b), of the denial of his petition for a writ
of habeas corpus under
28 U.S.C. § 2254 as untimely. On appeal,
Newsome contends that the district court erroneously found that
his Florida Rule of Criminal Procedure 3.850 tolling motion was
filed on May 13, 2016, the date on the prison date stamp that he
initialed, rather than May 12, 2016, the date he certified, via a
signed perjury declaration, that he hand-delivered the motion to
prison authorities. Having read the parties’ briefs and reviewed the
record, we affirm the district court’s order denying Newsome’s
motion for reconsideration.
I.
We review de novo a district court’s determination that a
petition for habeas corpus relief is time-barred. Nix v. Sec’y, Dep’t
of Corr.,
393 F.3d 1235, 1236 (11th Cir. 2004). We may affirm for
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21-12535 Opinion of the Court 3
any reason supported in the record. United States v. Chitwood,
676 F.3d 971, 975 (11th Cir. 2012). A § 2254 petitioner has one year
from the date on which the judgment against him became final to
seek a writ of habeas corpus.
28 U.S.C. § 2244(d)(1). That time
period starts at the conclusion of direct review or the expiration of
the time for seeking such review.
Id. The time for seeking direct
review of a criminal conviction does not expire until 90 days after
entry of the judgment, which is the period for filing for certiorari
with the United States Supreme Court. Nix,
393 F.3d at 1236-37;
Close v. United States,
336 F.3d 1283, 1285 (11th Cir. 2003). The
Supreme Court can solely review judgments of a state court of last
resort if the state court of last resort has denied discretionary re-
view. Gonzalez v. Thaler,
565 U.S. 134, 154,
132 S. Ct. 641, 656
(2012). The Florida Supreme Court lacks discretionary review ju-
risdiction over unelaborated per curiam decisions. Jackson v. State,
926 So. 2d 1262, 1265 (Fla. 2006).
The limitations period can be calculated according to the an-
niversary method, under which the limitations period expires on
the anniversary of the date it began to run. Downs v. McNeil,
520
F.3d 1311, 1318 (11th Cir. 2008). If the last day of the limitations
period is a Saturday, Sunday, or legal holiday, the time period con-
tinues to run until the next day. Fed. R. Civ. P. 6(a)(1)(C). The
limitations period is tolled during state post-conviction proceed-
ings. § 2244(d)(2). In Florida, a post-conviction appeal remains
pending until the mandate on appeal is issued. Nyland v. Moore,
216 F.3d 1264, 1267 (11th Cir. 2000). We have counted the extra
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4 Opinion of the Court 21-12535
day from a leap year in calculating tolling. Chavez v. Sec’y, Fla.
Dep’t of Corr.,
647 F.3d 1057, 1070 n.12 (11th Cir. 2011) (equitable
tolling).
Under the mailbox rule, a pro se prisoner’s habeas filing is
deemed filed the date it is delivered to prison authorities for mail-
ing or, absent an indication of the mailing date, the day the inmate
signed it. Allen v. Culliver,
471 F.3d 1196, 1198 (11th Cir. 2006);
Paez v. Sec’y, Fla. Dep’t of Corr.,
947 F.3d 649, 652 (11th Cir. 2020),
cert. denied sub nom. Paez v. Inch, ___ U.S. ___,
141 S. Ct. 309
(2020). The Florida Supreme Court has adopted the mailbox rule
for Rule 3.850 motions filed by pro se prisoners. Haag v. State,
591
So. 2d 614, 617 (Fla. 1992).
We review a district court’s denial of a motion to reconsider
for an abuse of discretion. Richardson v. Johnson,
598 F.3d 734,
740 (11th Cir. 2010). A motion for reconsideration cannot be used
to relitigate old matters or raise arguments or present evidence that
could have been raised prior to the entry of judgment.
Id. A § 2254
petitioner who fails to raise issues in his appellate brief abandons
those issues. See Atkins v. Singletary,
965 F.2d 952, 955 n.1 (11th
Cir. 1992). We can consider an abandoned issue sua sponte if a
forfeiture exception applies and extraordinary circumstances war-
rant review. See United States v. Campbell,
26 F.4th 860, 873 (11th
Cir. 2022) (en banc), petition for cert. filed (U.S. May 17, 2022) (No.
21-1468).
II.
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21-12535 Opinion of the Court 5
A. Motion for Reconsideration
Upon a review of the record, we conclude that the district
court did not abuse its discretion in denying Newsome’s motion
for reconsideration because Newsome failed to make the appropri-
ate showing for revisitation of the dismissal order. As the district
court found, the handwritten date on the certificate of service does
not present newly discovered evidence nor does it demonstrate a
manifest error of law or fact. See Arthur v. King,
500 F.3d 1335,
1343 (11th Cir. 2007) (noting these reasons for granting a motion
for reconsideration).
Moreover, Newsome did not raise this specific argument,
regarding the correct date of filing for his state post-conviction mo-
tion, until he filed his motion for reconsideration. Initially, New-
some argued below that the district court erred in dismissing his
habeas petition as untimely because he misunderstood the trigger
date for filing timely federal habeas petitions. As our court has
noted “[a] motion for reconsideration cannot be used to relitigate
old matters, raise argument or present evidence that could have
been raised prior to the entry of judgment. . .includ[ing] new argu-
ments that were previously available, but not pressed.” Wil-
chombe v. TeeVee Toons, Inc.,
555 F.3d 949, 957 (11th Cir. 2009)
(internal quotation marks and citations omitted). This is exactly
what Newsome is attempting to do. Accordingly, we conclude
that the district court properly denied Newsome’s motion for re-
consideration.
B. Timeliness of Federal Habeas Petition
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6 Opinion of the Court 21-12535
Newsome’s motion for state post-conviction relief con-
tained a prison date stamp of May 13, 2016, accompanied by the
initial of both a prison official and Newsome himself. Per the mail-
box rule, the motion was deemed filed on that date and tolled the
one-year period. The lapsed time restarted on June 9, 2017, one
day after the appellate court’s mandate issued on appeal of New-
some’s state post-conviction motion. At that time, Newsome had
ten days remaining, or until June 18, 2017, to file a federal petition.
Because June 18, 2017, fell on a Sunday, he had until Monday, June
19, 2017, to file his petition. Newsome provided his petition to
prison officials for mailing on June 20, 2017, one day late.
A review of the record demonstrates that Newsome’s fed-
eral habeas petition would have been untimely even using the ear-
lier date of May 12, 2016, which he asserts is the proper date he filed
his state post-conviction motion to toll the one-year limitations pe-
riod. His direct appeal was affirmed per curiam on February 20,
2015, and he had 90 days to file a writ of certiorari in the United
States Supreme Court. His convictions became final on that date.
See Close,
336 F.3d at 1285. According to the anniversary method,
absent any tolling, Newsome had one year from that date, or until
May 21, 2016, to file a timely § 2254 petition. See Downs,
520 F.3d
at 1318. Because that date fell on a Saturday, Newsome had until
the following Monday, May 23, 2016, to file his petition. If he filed
his 3.850 state post-conviction motion on May 12, 2016, 357 days of
the one-year limitation period had lapsed. Moreover, 2016 was a
leap year. Thus, after the state appellate court issued its mandate
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21-12535 Opinion of the Court 7
for its per curiam affirmance of the state trial court’s order denying
his Rule 3.850 motion on June 8, 2017, Newsome had nine days, or
until Saturday, June 17, 2016, to file his § 2254 petition. Because his
limitations period expired on a Saturday, he had until the next
Monday, June 19, 2017, to submit his federal habeas petition; how-
ever, he did not do so until June 20, 2017. Thus, his petition was
untimely.
The record demonstrates that the district court properly
concluded that Newsome’s federal habeas petition was untimely
and dismissed it. Thus, it did not abuse its discretion by denying
Newsome’s motion for reconsideration. Accordingly, based on the
aforementioned reasons, we affirm the district court’s order deny-
ing Newsome’s motion for reconsideration of the district court’s
order denying his federal habeas petition because it was untimely
filed.
AFFIRMED.
