Gary L. Hawes v. Tony Howerton , 335 F. App'x 882 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 1, 2009
No. 08-11121 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00683-CV-BBM-1
GARY L. HAWES,
Petitioner-Appellant,
versus
TONY HOWERTON, Warden,
PAROLE BOARD,
THURBERT E. BAKER,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 1, 2009)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Gary Lee Hawes, a Georgia state prisoner proceeding pro se, appeals the
dismissal of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. After
review, we affirm.
Hawes is serving a life sentence for murder, armed robbery, aggravated
assault and possession of a firearm during the commission of a felony. Hawes was
convicted in 1977 and paroled in 1993. On October 28, 1998, after a hearing, the
Georgia Board of Pardons and Paroles (“Parole Board”) revoked Hawes’s parole
for failing to carry out his parole officer’s instructions to participate in mental
health counseling and to maintain gainful employment. On the same date, the
Parole Board notified Hawes of the decision by letter.
On March 5, 2005, Hawes filed this § 2254 petition challenging the
revocation of his parole. The district court dismissed the § 2254 petition as
successive and time-barred. We conclude that the district court correctly dismissed
Hawes’s § 2254 petition as barred by the one-year statute of limitations in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214. Thus, we do not address the district court’s alternative
conclusion that Hawes’s § 2254 petition was successive.1
1
The certificate of appealability (“COA”) granted by the district court limited the issues
on appeal to whether a 2001 letter Hawes wrote to the district court was an initial federal habeas
2
The AEDPA imposes a one-year statute of limitations on petitions filed
pursuant to § 2254. 28 U.S.C. § 2244(d)(1). When, as here, the petitioner is
challenging a parole board decision, the limitations period begins to run on “the
date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.” See Brown v. Barrow, 512
F.3d 1304, 1307 & n.1 (11th Cir. 2008) (citing 28 U.S.C. § 2244(d)(1)(D)).2
Here, on October 28, 1998, the Parole Board revoked Hawes’s parole and
sent him a letter notifying him of the decision. Thus, Hawes’s deadline for filing a
federal habeas petition was October 28, 1999. See Brown, 512 F.3d at 1307-08(concluding that, for a Georgia prisoner serving a life sentence, the AEDPA’s one-
year limitations period begins to run when the Parole Board’s decision is made and
that subsequent requests for reconsideration do “not affect the finality [of the
Parole Board’s decision] or otherwise toll the limitations period”). However,
Hawes’s § 2254 was not filed until March 5, 2005, over five years after the
limitations period expired. Thus, unless the one-year limitations period was tolled,
corpus petition and whether the instant § 2254 petition was either successive or time-barred.
Thus, we do not address the other arguments Hawes raises relating to the merits of his parole
revocation, which are outside the scope of the COA. See Murray v. United States, 145 F.3d
1249, 1250-51 (11th Cir. 1998).
2
We review de novo the district court’s determinations that a petition for federal habeas
corpus relief is time-barred under § 2244(d) and that the limitations period was not tolled. Steed
v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000).
3
Hawes’s § 2254 petition was untimely.
AEDPA’s limitations period is tolled for the “time during which a properly
filed application for State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). However, “a
state court petition . . . that is filed following the expiration of the federal
limitations period cannot toll that period because there is no period remaining to be
tolled.” Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (quotation
omitted). Therefore, if a state habeas petition is properly filed more than one year
after the § 2244 statute of limitations began to run, a subsequent federal habeas
petition will be time-barred notwithstanding the properly filed state habeas
petition. Id.
Hawes filed two possible tolling documents between the time that his parole
was revoked and his § 2254 petition was filed. First, on October 14, 2002, Hawes
filed a state habeas petition. Because the one-year limitations period already had
expired on October 28, 1999, Hawes’s state habeas petition did not toll the statute
of limitations. See 28 U.S.C. § 2244(d)(2); Tinker, 255 F.3d at 1333.
Second, Hawes claims he filed a petition for a writ of mandamus with the
Fulton County Superior Court in either October 2001 or October 2002.3 The
3
Hawes’s objection to the magistrate judge’s report and recommendation stated that
Hawes filed his state mandamus petition in October 2001. However, Hawes’s motion for
4
record does not contain a copy of Hawes’s mandamus petition. The only record
evidence pertaining to Hawes’s alleged petition for mandamus is a February 15,
2002 order by the Superior Court denying his request to file a mandamus petition
in forma pauperis. Specifically, the order states:
Pursuant to O.C.G.A. Section 9-15-2 (d), the Court finds that the
pleading has such a complete absence of any justiciable issue of fact
or law that it cannot be reasonably believed that a court could grant
relief. Accordingly, Petitioner’s request to file the pleading, in forma
pauperis, is DENIED.
Thus, the record is silent as whether and when Hawes actually ever filed his state
mandamus petition and what its contents might have been.
In his district court pleadings, Hawes stated that he mailed the state
mandamus petition and it was returned by the United States Postal Service in
March 2003 in an envelope “obviously not mailed from [the] court” and with a
handwritten notation “No Sender’s Address; Return to Sender.” According to
Hawes, the returned mandamus petition did not have a file number and had not
been served on the defendants.
This Court has not yet addressed whether a state mandamus petition
challenging a Parole Board decision constitutes an “application for State post-
conviction or other collateral review” within the meaning of § 2244(d)(2). See
reconsideration stated that the state mandamus petition was filed in October 2002.
5
Brown, 512 F.3d at 1308 n.2 (noting that “a properly filed state mandamus petition
would probably toll the limitations period,” but declining to address the question).
We need not reach the issue because Hawes has not presented any evidence that his
alleged mandamus petition was either “filed” or “properly filed” within the
AEDPA’s one-year limitations period that ended October 28, 1999. See Webster
v. Moore, 199 F.3d 1256, 1257-58 (11th Cir. 2000) (placing burden on habeas
petitioner to show post-conviction motions were properly filed and thus tolled
AEDPA’s limitations period under § 2244(d)(2)). Thus, Hawes has not shown that
his § 2254 petition is saved by the statutory tolling provision of § 2244(d)(2). For
these reasons, we affirm the district court’s dismissal of Hawes’s § 2254 petition as
time-barred.
AFFIRMED.
6