Phillip Morris Lewis v. Warden, Phillips State Prison , 641 F. App'x 878 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14151
Non-Argument Calendar
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D.C. Docket No. 1:07-cv-02803-JEC
PHILLIP MORRIS LEWIS,
Petitioner-Appellant,
versus
WARDEN, PHILLIPS STATE PRISON,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 14, 2016)
Before ED CARNES, Chief Judge, MARCUS, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
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The Anti-Terrorism and Effective Death Penalty Act (AEDPA) establishes a
one-year limitations period for seeking federal habeas corpus relief from a state
court judgment. See 28 U.S.C. § 2244(d)(1). The issues presented in this case
concern whether William Lewis’ habeas petition is barred by that provision. As
stated in the certificate of appealability (COA) issued by the district court, those
issues are:
1. Whether [Lewis’] mental impairments entitle him to equitable
tolling sufficient to render his habeas petition timely filed;
2. Whether [Lewis’] resentencing on June 28, 2006 [to correct a
clerical error in his original sentence] affects the computation of
the one-year federal limitations period; [and]
3. Whether [Lewis] is entitled to the benefit of the 90-day period for
seeking certiorari review in the United States Supreme Court with
respect to his state court judgment of conviction even though he
did not seek certiorari review in the Georgia Supreme Court.
Our answers to those questions are: no; it doesn’t matter; and no.
I.
A jury in Murray County, Georgia convicted Lewis of rape and aggravated
sodomy, among other crimes. On March 26, 2003, the Murray County Superior
Court sentenced him to concurrent life terms, under O.C.G.A. § 17-10-7(a) and (c),
for rape and aggravated sodomy. The written judgment containing Lewis’
sentences incorrectly indicated that the court imposed the sentence for the
aggravated sodomy conviction under O.C.G.A. § 17-10-6.1, and it did not specify
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the subsections of § 17-10-7 under which the court imposed the sentence for the
rape conviction. On February 22, 2005, the Georgia Court of Appeals affirmed
Lewis’ convictions and sentences on direct appeal. Lewis did not petition the
Georgia Supreme Court for certiorari.
On June 6, 2005, Lewis filed his state habeas petition in Gwinnett County
Superior Court. That court denied that petition on April 19, 2006, but issued a
limited remand to the trial court to correct the “clerical errors” in the written
judgment: the judgment’s citation of § 17-10-6.1 as the basis for the aggravated
sodomy sentence and its failure to specify which subsections of § 17-10-7 were the
basis for the rape sentence. Before the trial court had corrected his sentence, Lewis
applied to the Georgia Supreme Court for a certificate of probable cause (CPC) and
filed with the clerk of the Gwinnett County Superior Court a notice of appeal of the
denial of his state habeas petition. While his application was pending, on June 28,
2006, the trial court corrected Lewis’ sentence to reflect the proper statutory
citations. The Georgia Supreme Court denied his application for a CPC on
November 6, 2006.
Lewis filed his federal habeas petition on October 23, 2007. The warden of
the facility where he was incarcerated moved to dismiss the petition on the ground
that it was untimely under AEDPA’s one-year limitations period. Lewis offered a
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number of reasons why his petition should be considered timely, including the
three that are reflected in the issues specified in the COA.
As to the first certified issue: Lewis’ mental impairments do not entitle him
to equitable tolling. They do not because he has failed to show that they prevented
him from timely filing his petition. To avail himself of equitable tolling, a habeas
petitioner must show “(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 2562 (2010). The
district court’s finding that Lewis’ mental impairments did not prevent him from
timely filing his federal habeas petition is a factual finding which we review only
for clear error. See San Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011).
A finding is clearly erroneous if a reviewing court is left with a “definite and firm
conviction” that the finding is wrong. Branch v. Sec’y, Fla. Dep’t of Corr., 638
F.3d 1353, 1356 (11th Cir. 2011).
The record shows that despite his asserted impairments Lewis was generally
capable of doing the sort of work necessary to file a habeas petition. For example,
Dr. William Schneider testified that, notwithstanding Lewis’ mental illness, he was
able to write letters, fill out simple forms, and draft short rebuttals to disciplinary
charges in prison. He further testified that Lewis was aware of his legal problems
and showed an interest in pursuing his rights.
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Lewis’ conduct at the state habeas hearing also supports the conclusion that,
despite his mental impairments, he could have timely filed his petition had he been
reasonably diligent. Representing himself at the hearing, Lewis demonstrated an
understanding of his claims and at least some ability to impeach opposing
witnesses, including his trial counsel, Jerry Moncus. Although Lewis was
sometimes confused, he was for the most part able to articulate his disagreements
with Moncus and question him about those disagreements. Throughout his state
and federal habeas litigation, Lewis also demonstrated an awareness of deadlines
and an ability to respond to them in a timely manner. And, as Lewis testified
during the federal habeas proceedings, he had finished the eleventh grade, obtained
his GED, and could read and write. For all of these reasons, we are not left with the
“definite and firm conviction” that the district court erred in finding that Lewis’
mental impairments prevented him from filing his federal habeas petition on time.
Lewis contends that his case is materially indistinguishable from Hunter v.
Ferrell, 587 F.3d 1304 (11th Cir. 2009), in which we vacated the denial of a § 2254
petition because the petitioner presented sufficient evidence to create a genuine
issue of material fact as to the existence of a causal link between his mental
impairment and his ability to timely file a federal habeas petition. The comparison
to Hunter is inapt because Lewis’ impairments are substantially less severe than
Hunter’s were. Unlike Hunter, Lewis is literate, has received his GED, and has
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never been deemed intellectually disabled. Likewise, although one doctor opined
that Lewis struggles to express his thoughts in a clear and organized manner,
Lewis is better able to intelligibly express himself than Hunter was. Finally,
although Lewis, like Hunter, relied on the assistance of other inmates for his post-
conviction filings, the record demonstrates that, unlike Hunter, Lewis understands
his legal rights sufficiently that he could have filed his federal habeas petition on
time. All of those facts materially distinguish this case from Hunter.
Holding the second COA issue in abeyance for the time being, the third one
is: “Whether [Lewis] is entitled to the benefit of the 90-day period for seeking
certiorari review in the United States Supreme Court with respect to his state court
judgment of conviction even though he did not seek certiorari review in the
Georgia Supreme Court.” AEDPA’s limitations period runs from “the date on
which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A)
(emphasis added). United States Supreme Court Rule 13(1) says that:
Unless otherwise provided by law, a petition for a writ of certiorari to
review a judgment in any case, civil or criminal, entered by a state
court of last resort . . . is timely when it is filed with the Clerk of this
Court within 90 days after entry of the judgment. A petition for a writ
of certiorari seeking review of a judgment of a lower state court that is
subject to discretionary review by the state court of last resort is
timely when it is filed with the Clerk within 90 days after entry of the
order denying discretionary review.
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The upshot is that, for purposes of AEDPA’s limitations period, when a party
petitions a “state court of last resort” to review a judgment by a lower state court,
the time for seeking review of the judgment expires 90 days after the state court of
last resort either enters its judgment or enters an order denying discretionary
review. And with the expiration of that time AEDPA’s limitations period begins to
run.
Lewis interprets Supreme Court Rule 13(1) to mean that AEDPA’s statute of
limitations did not begin to run until 90 days after the Georgia Court of Appeals
affirmed his convictions. That argument fails because, by its terms, Rule 13(1)’s
90-day period for seeking United States Supreme Court certiorari review applies
only to parties who have sought to have the judgments against them reviewed by a
state court of last resort. Lewis does not fit that description. The Georgia “state
court of last resort” is the Georgia Supreme Court, Pugh v. Smith, 465 F.3d 1295,
1300 (11th Cir. 2006), and Lewis never petitioned that court to review his
convictions or sentences. Accordingly, he was never eligible to petition the United
States Supreme Court for certiorari review and is not entitled to benefit from the
90-day reprieve from the running of the limitations period that would have applied
if he had been eligible.
Lewis suggests that Georgia Supreme Court Rule 40 effectively makes the
Georgia Court of Appeals the court of last resort, but he is wrong. Rule 40 simply
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provides that certiorari review by the Georgia Supreme Court is discretionary, and
that, for purposes of Georgia law, a state prisoner is deemed to have exhausted all
available state remedies once the Georgia Court of Appeals has ruled on his
appeal. See Ga. Sup. Ct. R. 40.1 Nothing in the rule strips the Georgia Supreme
Court of jurisdiction to review direct appeals by Georgia state prisoners. It
remains the highest state court in which a decision on a Georgia criminal
conviction may be had — in other words, it remains the “state court of last resort.”
As a result, if Lewis wanted to petition the United States Supreme Court for
certiorari review of the judgment against him, he first had to petition for review by
the Georgia’s highest court. Because he did not do so, the 90-day period that
United States Supreme Court Rule 13(1) provides for filing a petition for a writ of
certiorari in that Court does not affect the finality of the judgment against him,
Georgia Supreme Court Rule 40 notwithstanding.
We turn now to the second issue in the COA: “Whether [Lewis’]
resentencing on June 28, 2006 [to correct clerical errors in his original sentences]
affects the computation of the one-year federal limitations period.” We need not
resolve that issue because our resolution of it would not affect the outcome of this
appeal. See Otero v. United States, 499 F.3d 1267, 1269 n.1 (11th Cir. 2007).
1
Rule 40, which provides the standard for certiorari review by the Georgia Supreme Court in
criminal cases, is not to be confused with Georgia Supreme Court Rule 36, which provides the
standard for granting review by that court “in a habeas corpus case involving a criminal
conviction.”
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Even were we to agree with Lewis’ argument, his federal habeas petition would
have been due by July 28, 2007, a year after the end of the 30-day period for
appealing his amended sentence from the trial court to the Georgia Court of
Appeals. Lewis did not file his federal habeas petition until October 2007. It is
untimely regardless of how we would decide the second issue specified in the
COA.
Finally, Lewis contends that, because his state habeas appeal was pending
when the sentencing court amended his judgment, the sentencing court lacked
jurisdiction to amend the judgment or take any other action in his criminal case.
As a result, he argues, there is still no valid sentence in his case, which means
AEDPA’s limitations period has not even begun to run. Our review in habeas
cases is limited to the issues certified for appeal. See McCoy v. United States, 266
F.3d 1245, 1248 n.2 (11th Cir. 2001). Because Lewis’ argument about the validity
of the amended sentence in his case is not among the issues in the COA, we do not
consider it.
AFFIRMED.
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