Leo C. Hollingsworth v. Atty. General of Florida, No. 06-14599 (11th Cir. 2009)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on April 9, 2009.
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[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 30, 2009 No. 06-14599 THOMAS K. KAHN _________________________ CLERK D.C. Docket No. 05-22510-CV-UUB LEO C. HOLLINGSWORTH, Petitioner-Appellant, versus ATTORNEY GENERAL OF FLORIDA, Bill McCollum, SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Respondents-Appellees. ------------------------Appeal from the United States District Court for the Southern District of Florida -------------------------BEFORE BLACK, BARKETT and PRYOR, Circuit Judges. BY THE COURT: On December 30, 2008, this Court granted Appellees motion to stay this appeal pending the Supreme Court s disposition of Jimenez v. Quarterman, S.Ct. Docket No. 07-6984. On January 13, 2009, the Supreme Court issued its decision in Jimenez. See Jimenez v. Quarterman, _ U.S. _, 129 S.Ct. 681 (2009). The Court held that, ...[W]here a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet final for purposes of [28 U.S.C.] ยง 2244(d)(1)(A). In such a case, the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal. Id., 129 S. Ct. at 686 87. Direct review of the out-of-time appeal concludes when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or, if the prisoner elects not to pursue certiorari review, when the time for seeking certiorari expires. Id. at 685 86. On February 24, 2009, Appellees filed a motion to remand for further proceedings in light of Jimenez v. Quarterman. Because Appellees concede in their motion that, under Jimenez v. Quarterman, Appellant s petition is not time-barred, the motion is construed as a confession of error. Appellant objects to Appellees motion to the extent that Appellees suggest that 2 the district court, rather than this Court, should decide whether, in the light of Jimenez v. Quarterman, the petition is time-barred; this objection is construed as a motion to vacate the district court s dismissal order before remanding for further proceedings. Appellant s motion to vacate the district court s dismissal order is GRANTED. The July 17, 2006, order granting review of the magistrate s supplemental order to show cause and dismissing Appellant s petition as time-barred is hereby VACATED. Appellees motion for remand for further proceedings in light of Jimenez v. Quarterman is also GRANTED. Appellant has asked this Court to publish its decision on the instant motions. Appellant s motion for publication is GRANTED. 3
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