Jose Perez Ortiz v. Secretary, Department of Corrections, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13202
Non-Argument Calendar
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D.C. Docket No. 9:14-cv-80763-DMM
JOSE PEREZ ORTIZ,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 6, 2015)
Before TJOFLAT, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
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Jose Perez Ortiz, a Florida state prisoner proceeding pro se, appeals the
dismissal of his 28 U.S.C. § 2254 habeas corpus petition. This court granted a
certificate of appealability on one issue: whether the District Court erred in
dismissing Ortiz’s petition as time-barred based on an incorrect calculation of the
date his convictions became final under 28 U.S.C. § 2244(d)(1)(A).
Under 28 U.S.C. § 2244, a one-year limitation period shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to a
judgment of a state court. 28 U.S.C. § 2244(d)(1). The limitation period shall run
from the latest of, among other dates, “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review.” Id. § 2244(d)(1)(A). The Supreme Court, in Clay v. United States,
stated that when a petitioner challenges his conviction on the merits on direct
review, “[f]inality attaches when this Court . . . denies a petition for a writ of
certiorari.” Clay v. United States, 537 U.S. 522, 527, 123 S. Ct. 1072, 1076, 155
L. Ed. 2d 88 (2003); see also Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235, 1237
(11th Cir. 2004).
As Ortiz argues and the State concedes on appeal, the District Court erred in
its calculation of the date Ortiz’s convictions became final. The court calculated
finality from the date the time for filing a certiorari petition expired, but Ortiz in
fact filed a certiorari petition, which the United States Supreme Court denied on
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January 8, 2007, six days after the time for filing a certiorari petition would have
expired. Clay, 537 U.S. at 527, 123 S. Ct. at 1076; Ortiz v. Florida, 549 U.S.
1129, 127 S. Ct. 965, 166 L. Ed. 2d 733 (2007). Based on a conviction finality
date of January 8, 2007, the limitations period ran for a total of 363 untolled days
as of August 29, 2013, the date Ortiz alleged he filed his § 2254 petition by
delivering it to prison officials for mailing.
However, there is uncertainty in the record as to when exactly Ortiz filed his
§ 2254 petition, which was not docketed in the District Court until May 2014, was
filed in incomplete form, and contained only a handwritten notation about delivery
to prison officials rather than an official stamp. Further, the court made no finding
as to whether the petition was filed, as it merely assumed, without deciding, that it
was filed on the date Ortiz alleged. Accordingly, we vacate the dismissal of
Ortiz’s § 2254 petition and remand for further proceedings, including a
determination of whether Ortiz’s petition was in fact timely based on the correct
date his convictions became final.
VACATED AND REMANDED.
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