James Manuel Phillips, Jr. v. Warden

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11910
________________________
D.C. Docket No. 1:09-cv-01855-TCB
JAMES MANUEL PHILLIPS, JR.,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 31, 2018)
Before ROSENBAUM, JULIE CARNES, Circuit Judges, and SCHLESINGER, ∗
District Judge.
JULIE CARNES, Circuit Judge:
∗
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
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Petitioner James Manuel Phillips, a Georgia prisoner, appeals the district
court’s order dismissing his federal habeas corpus petition as time-barred. The
dismissal order was based on the district court’s conclusion that Petitioner’s
conviction became final, and thus triggered the one-year statute of limitations
applicable to his federal habeas petition, on the date Petitioner missed the deadline
for filing a petition for certiorari review of his conviction by the Georgia Supreme
Court. We granted a certificate of appealability on the sole issue of whether the
district court erred by concluding that the statute of limitations began to run when
the deadline expired for Petitioner to file a certiorari petition in the Georgia
Supreme Court, rather than ninety days after the date the Georgia Supreme Court
dismissed Petitioner’s certiorari petition as time-barred. After a careful review of
the record and with the benefit of oral argument, we affirm.
I. BACKGROUND
A. State Court Conviction and Direct Appeal
A Georgia jury convicted Petitioner in 2000 of child molestation, two counts
of sexual exploitation of children, two counts of theft by receiving stolen property,
and obstruction of a law enforcement officer. In 2004, the Georgia Court of
Appeals affirmed Petitioner’s child molestation conviction, but reversed the other
convictions due to insufficient evidence. Phillips v. State, 269 Ga. App. 619
(2004). In 2005, Petitioner was sentenced to twenty years for the child molestation
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conviction. The Georgia Court of Appeals dismissed Petitioner’s appeal of the
child molestation conviction and sentence on July 24, 2006, and denied his motion
for reconsideration on August 16, 2006.
Pursuant to Georgia Supreme Court Rule 38, Petitioner had ten days from
the date the Georgia Court of Appeals denied reconsideration, or until August 26,
2006, to file a notice of intent to apply to the Georgia Supreme Court for certiorari,
and twenty days, or until September 5, 2006, to submit a certiorari petition to the
clerk of the Georgia Supreme Court. See Ga. Sup. Ct. R. 38. Rule 38 describes
both requirements—filing a notice of intent to apply for certiorari within ten days
and submitting the certiorari petition to the clerk within twenty days—as
“mandatory.” Id. Petitioner never filed a notice of intent to apply for certiorari,
and he did not submit his petition for certiorari until September 7, 2006, two days
after the September 5 deadline.1
On November 6, 2006, the Georgia Supreme Court dismissed Petitioner’s
certiorari petition as untimely, noting that it was due on September 5, 2006, but
was not filed until September 7, 2006. Phillips v. State, No. S07C0074 (Ga. Nov.
6, 2006). Petitioner moved for reconsideration on November 14, 2006. The
Georgia Supreme Court denied the request on December 15, 2006. Petitioner did
1
Petitioner claims he mailed his certiorari petition on September 5th, but Georgia does not
apply the prison-mailbox rule to direct appeals. See Riley v. State, 280 Ga. 267, 268 (Ga. 2006).
Thus, the petition was not considered filed until it was received by the clerk on September 7,
2006.
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not seek further review by moving for a rehearing in the Georgia Supreme Court,
and he did not file a petition for certiorari to the United States Supreme Court.
B. State Habeas Petition
On February 12, 2007, Petitioner filed a pro se state habeas corpus petition
in which he challenged the validity of his child molestation conviction. Following
an evidentiary hearing, the state habeas court denied the petition on April 2, 2008.
Petitioner’s state habeas proceeding concluded on July 25, 2008, when the Georgia
Supreme Court denied Petitioner’s motion for reconsideration of its order denying
Petitioner’s application for a certificate of probable cause.
C. Federal Habeas Petition
Petitioner filed his § 2254 federal habeas corpus petition on June 29, 2009.
The State moved to dismiss the petition as untimely pursuant to the one-year
statute of limitations that is applicable to federal habeas petitions under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2244(d).
A magistrate judge issued a Report and Recommendation (“R&R”),
recommending that the State’s motion be granted. The magistrate judge
determined that Petitioner’s conviction became final—and AEDPA’s one-year
statute of limitations thus began to run—when the deadline for Petitioner to submit
a timely certiorari petition to the Georgia Supreme Court expired on September 5,
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2006. The magistrate judge noted that Petitioner subsequently waited over five
months—until February 12, 2007—to file his state habeas petition. The statute of
limitations was tolled while Petitioner’s state habeas petition was pending, but
began to run again when the state habeas proceeding concluded on July 25, 2008.
Petitioner then waited over eleven months—until June 29, 2009—before filing his
§ 2254 petition in federal court. Because the untolled periods of time amounted to
more than one year, the magistrate judge concluded that AEDPA’s limitations
period had already expired by the time Petitioner filed his § 2254 petition. Over
Petitioner’s objection, the district court adopted the R&R.
Petitioner subsequently filed a request for a certificate of appealability,
asserting that he was entitled to equitable tolling because the State had impeded his
ability to timely file his certiorari petition in the Georgia Supreme Court.
Construing his request as a motion for reconsideration, the district court vacated its
order and referred the case back to the magistrate judge to address Petitioner’s
equitable tolling argument. The magistrate judge issued a second R&R concluding
that equitable tolling was not warranted and again recommending that the district
court grant the State’s motion to dismiss the § 2254 petition as untimely. Petitioner
did not file any objections, and the district court adopted the R&R dismissing
Petitioner’s § 2254 petition as untimely.
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Petitioner later objected and moved for reconsideration, arguing that his
conviction did not become final on September 5, 2006, when the deadline expired
for him to file a petition for certiorari in the Georgia Supreme Court, but rather that
the conviction became final on February 5, 2007, ninety days after the Georgia
Supreme Court dismissed Petitioner’s certiorari petition as untimely. In asserting
this argument, Petitioner relied upon the general rule that a conviction becomes
final for AEDPA purposes when the Supreme Court denies or rules on the merits
of a certiorari petition or, in the event that certiorari review by the Supreme Court
is available but no petition for certiorari to the Supreme Court is filed, when the
deadline for filing such a petition expires. See Gonzalez v. Thaler, 565 U.S. 134,
149–50 (2012). Pursuant to Supreme Court Rule 13.1, “[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” must be filed within ninety
days “after entry of the order denying discretionary review.” Sup. Ct. R. 13.1.
According to Petitioner, the Georgia Supreme Court’s order dismissing his
certiorari petition as untimely qualified as an “order denying discretionary review”
that was subject to certiorari review by the Supreme Court. See id. Thus, under
Petitioner’s reasoning, his conviction became final ninety days after the Georgia
Supreme Court’s dismissal order.
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After reviewing Petitioner’s objections, the district court denied his motion
for reconsideration. In accordance with its initial decision on the issue, the court
held that when a petitioner misses a deadline for seeking review of his direct
appeal in the state’s highest court, his conviction becomes final on the date the
deadline expires. Accordingly, the court concluded that Petitioner’s conviction
became final on September 5, 2006, when he missed the deadline for petitioning
the Georgia Supreme Court for certiorari, and that his § 2254 petition was
therefore untimely. The court also determined that Petitioner was not entitled to
equitable tolling, and denied Petitioner a certificate of appealability (“COA”) as to
both of those issues.
A member of this Court subsequently granted Petitioner a COA on the
following issue:
Whether the district court erred in dismissing [Petitioner’s] 28 U.S.C.
§ 2254 petition as time-barred based on its calculation of the date
[Petitioner’s] conviction became final under 28 U.S.C.
§ 2244(d)(1)(A).
II. DISCUSSION
A. Standard of Review
We review de novo the district court’s determination that Petitioner’s § 2254
habeas corpus petition is time-barred. Dolphy v. Warden, Cent. State Prison, 823
F.3d 1342, 1344 (11th Cir. 2016). We also review de novo the district court’s
resolution of any questions of law underlying that determination. Cadet v. Florida
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Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017). We review the district
court’s factual findings for clear error. Id.
B. AEDPA’s Statute of Limitations
AEDPA imposes a one-year statute of limitations for filing a § 2254 petition.
See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.”). The limitations period begins to run on the date the
petitioner’s conviction becomes “final by the conclusion of direct review or the
expiration of the time for seeking such review.” 2 Id. § 2244(d)(1)(A). Assuming a
petitioner timely pursues all available state and federal relief, his conviction
becomes final for purposes of AEDPA’s limitations period when the Supreme
Court denies or rules on the merits of his certiorari petition. See Gonzalez, 565
U.S. at 149–50. If the petitioner timely pursues all available state relief on direct
review, but does not file a petition for certiorari to the Supreme Court, his
conviction becomes final at the expiration of the period for filing such a petition.
See id. But if the petitioner fails to timely pursue all available state relief on direct
review, his conviction becomes final when the time for seeking review in the
relevant state court expires. See id.
2
There are three other possible dates for commencement of the limitations period, but none of
those dates are applicable here. See 28 U.S.C. § 2244(d)(1)(B)–(D).
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The AEDPA limitations period is statutorily tolled for “[t]he time during
which a properly filed application for State post-conviction or other collateral
review . . . is pending.” Id. § 2244(d)(2). In addition, it is “subject to equitable
tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010).
C. Petitioner’s Federal Habeas Petition Is Time-Barred
Based on the plain language of § 2244(d)(1)(A), the district court correctly
held that Petitioner’s conviction became final on September 5, 2006, and that his
federal habeas petition was therefore time-barred. Section 2244(d)(1)(A) provides
two alternative dates on which a conviction becomes final: (1) at the “conclusion
of direct review” or (2) upon the “expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A). As the Supreme Court has explained, each of these
alternatives applies to a “distinct category of petitioners.” Gonzalez, 565 U.S. at
150. “For petitioners who pursue direct review all the way to [the Supreme] Court,
the judgment becomes final at the ‘conclusion of direct review’—when [the
Supreme] Court affirms a conviction on the merits or denies a petition for
certiorari.” Id. But for all other petitioners, “the judgment becomes final at the
‘expiration of the time for seeking such review’—when the time for pursuing
direct review in [the Supreme] Court, or in state court, expires.” Id.
Because Petitioner did not pursue direct review all the way to the Supreme
Court, he falls within the second category of petitioners—those whose judgment of
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conviction becomes final at the “expiration of the time for seeking such review” in
the Supreme Court or in state court. See id. To seek review in the Georgia
Supreme Court, Petitioner was required to file a petition for certiorari within 20
days of the entry of judgment by the Georgia Court of Appeals. Ga. Sup. Ct. R.
38(2). It is undisputed that Petitioner failed to meet that requirement. Pursuant to
the plain language § 2244(d)(1)(A), Petitioner’s conviction thus became final for
purposes of AEDPA’s limitations period when the time expired for him to submit a
certiorari petition to the Georgia Supreme Court on September 5, 2006. Accord
Butler v. Cain, 533 F.3d 314, 316–20 (5th Cir. 2008) (holding that a habeas
petitioner’s conviction became final when he missed the 30-day period for
appealing an intermediate court’s decision to the Louisiana Supreme Court, rather
than when the Louisiana Supreme Court dismissed his appeal as untimely).
The limitations period subsequently ran for approximately five months (160
days)—from September 5, 2006 until February 12, 2007—before it was tolled by
Petitioner’s filing of a state habeas petition. See 28 U.S.C. § 2244(d)(2). The
limitations period was tolled until the conclusion of Petitioner’s state habeas
proceedings on July 25, 2008. See id. At that point, Petitioner had 205 days left to
file a timely § 2254 petition in federal court. Yet, he waited approximately eleven
months (339 days) to file his petition, which was well outside of AEDPA’s one-
year limitations period. See 28 U.S.C. § 2244(d)(1).
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In reaching this conclusion, we necessarily reject Petitioner’s argument that
his conviction did not become final until February 5, 2007—ninety days after the
Georgia Supreme Court dismissed his certiorari petition as untimely. 3 The fatal
flaw in Petitioner’s argument is that he has not shown he was entitled to petition
the United States Supreme Court for certiorari after the Georgia Supreme Court
dismissed his petition. Federal law provides for certiorari review by the United
States Supreme Court of:
[f]inal judgments or decrees rendered by the highest court of a State in
which a decision could be had . . . where the validity of a treaty or
statute of the United States is drawn in question or where the validity
of a statute of any State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or laws of the United
States, or where any title, right, privilege, or immunity is specially set
up or claimed under the Constitution or the treaties or statutes of, or
any commission held or authority exercised under, the United States.
28 U.S.C. § 1257(a). The Georgia Supreme Court’s decision that Petitioner’s state
certiorari petition was untimely under its own court rules did not raise a federal
statutory or constitutional issue that would have given rise to certiorari review
under § 1257(a). 4
3
Petitioner calculates the ninety-day period as beginning on the date the Georgia Supreme Court
dismissed his certiorari petition as untimely, not the date the Georgia Supreme Court denied his
motion for reconsideration. Based on the dismissal date, the ninety-day period actually would
have expired on February 4, 2007. However, because that day fell on a Sunday, we refer to the
date of expiration as February 5, 2007.
4
The Supreme Court’s decision in American Railway Express Company v. Levee, 263 U.S. 19
(1923) does not suggest otherwise. In that case, the Louisiana Supreme Court denied the
defendant’s writ of certiorari in a conversion action, based on its determination that the judgment
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Nor did the Georgia Supreme Court’s timeliness decision entitle Petitioner
to certiorari review by the United States Supreme Court of the merits of the claims
he asserted on direct review. In order to petition for certiorari review in the United
States Supreme Court on the merits of his direct review claims, Petitioner was
required to first seek review of the merits in the highest state court “in which a
decision” on the merits “could be had.” Id. See also Pugh v. Smith, 465 F.3d
1295, 1299 (11th Cir. 2006) (“In the absence of a clear statutory or constitutional
bar to higher state court review, the Supreme Court requires petitioners to seek
review in the state’s highest court before filing a petition for certiorari.” (citation
omitted)). The Georgia Supreme Court is the highest state court that could rule on
the merits of the claims asserted on direct review of Petitioner’s criminal
conviction. Pugh, 465 F.3d at 1300. Our precedent is clear that Petitioner was not
entitled to bypass a decision on the merits by the Georgia Supreme Court and
petition the United States Supreme Court directly for certiorari review. See id.
of the lower court was “correct.” 263 U.S. at 20. Addressing an objection that the writ of
certiorari was to the Louisiana Court of Appeals rather than to the Louisiana Supreme Court, the
United States Supreme Court explained that “the fact that the [Louisiana Supreme Court’s]
reason [for denying discretionary review] happened to be an opinion upon the merits rather than
some more technical consideration, did not take from the refusal its ostensible character of
declining jurisdiction.” Id. at 21. Petitioner interprets this statement to mean that the Supreme
Court will review a state supreme court’s dismissal of a certiorari petition as untimely. We
disagree. In context, this statement merely explains that the Supreme Court could exercise
certiorari where the Louisiana Supreme Court had denied discretionary review based on its
assessment of the merits of the case. See id. That explanation has no bearing on our inquiry
here.
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(holding that the petitioner, who had failed to seek review of his conviction in the
Georgia Supreme Court, was not entitled to petition the United States Supreme
Court for a writ of certiorari).
Moreover, we are unpersuaded by Petitioner’s argument that he was entitled
to petition the United States Supreme Court for certiorari review because the
Georgia Supreme Court could have waived the untimeliness of his petition. The
authority cited by Petitioner, State v. Tyson, 273 Ga. 690 (Ga. 2001), does not
support his position. In Tyson, the Georgia Supreme Court explained that:
The Constitution of the State of Georgia of 1983 gives the Supreme
Court the power to ‘review by certiorari cases in the Court of Appeals
which are of gravity or great public importance.’ This constitutional
provision places no limit on this Court’s certiorari jurisdiction. As a
result, we have jurisdiction to review any decision of the court of
appeals by certiorari so long as the case presents an issue of great
concern, gravity, and importance to the public.
Tyson, 273 Ga. at 692. Although Tyson makes clear that there is no limit on the
Georgia Supreme Court’s subject matter jurisdiction, it does not hold that the court
must—or should—review untimely certiorari petitions. See id. Indeed, Tyson
does not address the Georgia Supreme Court’s authority to consider untimely
petitions at all.
But even assuming the Georgia Supreme Court could have waived the
untimeliness of Petitioner’s certiorari petition, the fact is that it did not. The
Supreme Court has held that “the possibility that a state court may reopen direct
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review does not render convictions and sentences that are no longer subject to
direct review nonfinal.” Jimenez v. Quarterman, 555 U.S. 113, 120 n.4 (2009)
(internal quotations marks omitted). Consequently, the fact that the Georgia
Supreme Court arguably had the authority to consider the merits of Petitioner’s
untimely certiorari petition has no impact on our determination that Petitioner’s
conviction became final for purposes of § 2244(d)(1) when the time for him to
pursue direct review in the Georgia Supreme Court expired on September 5, 2006.
28 U.S.C. § 2244(d)(1)(A). 5
We note that, taken to its logical conclusion, Petitioner’s argument to the
contrary would allow any Georgia habeas petitioner to indefinitely and unilaterally
extend the finality of his conviction simply by filing an untimely petition for
certiorari to the Georgia Supreme Court. Under Petitioner’s reasoning, the Georgia
Supreme Court’s subsequent dismissal of such a petition as untimely would undo
the finality of the petitioner’s conviction and reset the AEDPA’s limitations period,
giving the petitioner ninety days from the date of the dismissal order to file a
federal habeas petition that otherwise would be time-barred. That result would be
5
Of course, the result would be different if the Georgia Supreme Court had granted Petitioner an
out-of-time appeal and considered the merits of the claims he asserted on direct review. See
Jimenez, 555 U.S. at 120. In that event, the out-of-time appeal would have “restored the
pendency of the direct appeal” such that Petitioner’s conviction was “no longer final for purposes
of § 2244(d)(1)(A).” Id. (alteration adopted and internal quotation marks omitted). The
judgment would then become final when the Supreme Court denied or ruled on the merits of a
certiorari petition seeking review of the out-of-time appeal, or at the expiration of the time for
seeking certiorari review of the state court’s decision on the out-of-time appeal. Id. at 121.
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completely at odds with the finality interests AEDPA was intended to protect. See
Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004) (“The
central purpose behind the AEDPA was to ensure greater finality of state and
federal court judgments in criminal cases. . . .”).
Because Petitioner has not shown that he was entitled to petition the United
States Supreme Court for review either of the Georgia Supreme Court’s decision to
dismiss his state certiorari petition as untimely or of any state court’s rulings on the
merits of his direct review claims, there is no basis for incorporating the ninety-day
period for seeking such review into our determination of the date upon which
Petitioner’s conviction became final for purposes of § 2244(d)(1). See Gonzalez,
565 U.S. at 154 (declining to incorporate the 90-day period for seeking certiorari
where the Supreme Court would have lacked jurisdiction over a petition for
certiorari); Pugh, 465 F.3d at 1300 (noting that a petitioner who was not entitled to
petition the Supreme Court for certiorari review was likewise not entitled to an
extension of AEDPA’s limitations period to account for the 90-day period in which
to file such a petition). Nor is there any other ground for delaying the
commencement of AEDPA’s limitations period beyond the date upon which
Petitioner’s time for seeking certiorari review in the Georgia Supreme Court
expired on September 5, 2006.
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Finally, Petitioner’s argument that his conviction did not become final until
the remittitur from the Georgia Court of Appeals was filed in the superior court on
January 23, 2007 is wholly without merit. In support of this argument, Petitioner
relies on our decision in Day v. Chatman, 130 F. App’x 349 (11th Cir. 2005). Day
is unpublished, and therefore it is not binding precedent. See 11th Cir. R. 36-2.
But in any event, Day interpreted the meaning of the term “pending” as used in the
tolling provision of § 2244(d)(2), rather than the meaning of the term “final” as
used in § 2244(d)(1). Specifically, the Court held in Day that a state proceeding is
no longer pending in Georgia—and thus AEDPA’s statute of limitations is no
longer tolled—“where the appellate court has issued the remittitur and it has been
received and filed in [the] clerk’s office of the court below.” Day, 130 F. App’x at
350. It did not hold that a conviction is not final for AEDPA purposes until the
remittitur is filed, which would be contrary to the plain language of § 2244(d)(1).
In short, and for all of the reasons discussed above, we agree with the district
court that Petitioner’s conviction became final for purposes of AEDPA’s statute of
limitations provision on September 5, 2006. As Petitioner’s federal habeas petition
was thus filed well outside of the one-year limitations period, the district court
correctly dismissed the petition as time-barred.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Petitioner’s § 2254 petition as time-barred.
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