KEARSE v. SECRETARY, FLORIDA DEPT. OF CORRECTIONS

No. 11-12267.

669 F.3d 1197 (2011)

Billy Leon KEARSE, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

United States Court of Appeals, Eleventh Circuit.

November 3, 2011.


Attorney(s) appearing for the Case

Paul Edward Kalil (Court-Appointed), Craig Joseph Trocino (Court-Appointed), Capital Collateral Regional Counsel-South, Fort Lauderdale, FL, for Petitioner-Appellant.

Leslie T. Campbell , Lisa-Marie Lerner , West Palm Beach, FL, for Respondents-Appellees.

Before CARNES, MARCUS and WILSON, Circuit Judges.


PER CURIAM:

Petitioner Billy Leon Kearse, an inmate on Florida's death row, appeals the district court's dismissal of his federal habeas petition as untimely. We find that the district court applied the incorrect standard to evaluate the timeliness of his petition, resulting in the failure to consider compelling evidence that the petition was "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2). Instead of applying the "clear and convincing" standard...

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