Gerard Joseph Pugh v. Hugh Smith

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 05-12100, 05-13021 September 29, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket Nos.
04-00184-CV-BAE-4
05-00062-CV-4
GERARD JOSEPH PUGH,
Petitioner-Appellant,
versus
HUGH SMITH,
Warden,
Respondent-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(September 29, 2006)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PRYOR, Circuit Judge:
The main issue in this appeal involves the timeliness of a federal habeas
petition, which depends upon when a Georgia conviction became final on direct
appeal. A petition for a writ of habeas corpus must be filed within a year after the
petitioner’s conviction becomes 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).
Gerard Joseph Pugh appeals the dismissal of his habeas petition as untimely under
this rule. Pugh appealed his conviction to the Georgia Court of Appeals, but not
to the Supreme Court of Georgia. The district court concluded that Pugh’s
conviction became final 10 days after the Georgia Court of Appeals affirmed his
conviction, because Pugh could have sought review during that period in the
Supreme Court of Georgia. If Pugh instead was entitled to seek in the Supreme
Court of the United States review of the judgment of the Georgia Court of
Appeals, then his conviction would have become final upon the expiration of the
90-day period for seeking that review, and his habeas petition would be timely.
Because we conclude that the Supreme Court of Georgia was the highest court of
the state in which direct review of Pugh’s conviction could have been had, Pugh’s
failure to seek review in that court means that he was not entitled to seek review in
the Supreme Court of the United States and not entitled to the 90-day period for
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seeking that review. We affirm the dismissal of Pugh’s habeas petition as
untimely.
I. BACKGROUND
On March 26, 1997, a grand jury in Chatham County, Georgia, indicted
Pugh on charges of aggravated assault and burglary. Pugh was convicted of
aggravated assault and sentenced to 20 years of imprisonment. The Georgia Court
of Appeals affirmed Pugh’s conviction and sentence on August 13, 2001.
Fourteen months later, on October 11, 2002, Pugh filed a petition for a writ of
habeas corpus in the Superior Court of Tattnall County, Georgia, and that court
denied Pugh’s petition on March 8, 2004. Pugh’s application for a certificate of
probable cause to appeal that decision was denied on October 13, 2004.
On October 27, 2004, Pugh filed pro se a petition for a writ of habeas
corpus in the Southern District of Georgia. 28 U.S.C. § 2254. Pugh’s petition
alleged, among other things, “Counsel didnt appeal direct appeal to Supreme
Court of GA . . . .” The warden of Pugh’s prison, Hugh Smith, filed an answer
that asserted untimeliness as a defense, a motion to dismiss the petition as
untimely based on the expiration of the one-year statute of limitations, and a brief
in support of that motion, which noted that Pugh “did not move for
reconsideration or file a certiorari petition to the Georgia Supreme Court” after the
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Court of Appeals affirmed his conviction. 28 U.S.C. § 2244(d). Pugh filed a
response to Smith’s answer, in which he alleged attorney negligence; a response to
Smith’s motion to dismiss, in which he argued that his attorneys had failed to file
“sentence Modification, appeal to higher court in motion for New trial and motion
to Reconsideration after Court of Appeal decision” and that “I filed but never get a
response before (10) ten day time frame”; and a response to Smith’s brief in
support of the motion to dismiss, in which he asserted, “When Court of Appeal
and GA Supreme Court handed there decision I responded to the courts.”
A magistrate judge issued a report and recommendation that Pugh’s petition
be dismissed as untimely because the statute of limitations had expired and Pugh
“ha[d] not alleged any other grounds for tolling of the limitations period.” Pugh
filed objections and argued in part:
[L]et’s remember I am not the only person filing petition or other
document in these court of GA or law, and that I stated earlier I filed
notice of appeal get no response, filed motion to reconsider got not
response. Both court of appeal and Ga Supreme Court did say
nothing was received from me, so a writ heabus corpus was file.
The district court adopted the report and recommendation over Pugh’s objection,
granted Smith’s motion, and dismissed Pugh’s petition as untimely. The district
court denied Pugh a certificate of appealability, but we granted a certificate of
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appealability to determine whether the district court erred when it dismissed
Pugh’s petition as untimely.
On April 18, 2005, Pugh filed pro se a second habeas petition in the
Southern District of Georgia. The district court dismissed the petition as
impermissibly successive. We granted a certificate of appealability to determine
whether the district court erred when it dismissed the petition as impermissibly
second or successive, and we consolidated Pugh’s appeals. Pugh has conceded
that the second petition was impermissibly successive, so that issue has been
abandoned and is no longer before us. See Cheffer v. Reno, 55 F.3d 1517, 1519
n.1 (11th Cir. 1995).
II. STANDARDS OF REVIEW
Two standards of review govern this appeal. We review de novo the
dismissal of a petition for a writ of habeas corpus as untimely. Nix v. Sec’y for
the Dep’t of Corr., 393 F.3d 1235, 1236 (11th Cir. 2004). We review for abuse of
discretion the denial of an evidentiary hearing for a habeas petition. Drew v.
Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002).
III. DISCUSSION
To resolve this appeal, we must consider two issues. First, we address
whether Pugh was entitled, after the Georgia Court of Appeals affirmed his
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conviction, to seek review in the Supreme Court of the United States without first
seeking review in the Supreme Court of Georgia. Second, we address whether the
district court abused its discretion by denying Pugh an evidentiary hearing to
determine whether he had filed a petition for a writ of certiorari in the Supreme
Court of Georgia or was entitled to equitable tolling.
A. Because the Supreme Court of Georgia Was Available to Review
Pugh’s Conviction on Direct Appeal, Pugh Was Not Yet Entitled to Petition
the Supreme Court of the United States and Was Not Entitled to the
90-Day Period for Filing That Petition.
Under the Antiterrorism and Effective Death Penalty Act of 1996, a state
prisoner’s petition for a writ of habeas corpus is governed by a one-year statute of
limitations, and that year commences on the date the conviction becomes 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). This statute of limitations allows a prisoner
the time to seek direct review in the Supreme Court of the United States. Coates
v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000). If a prisoner petitions the Supreme
Court for a writ of certiorari, his conviction becomes final when the Supreme
Court denies the petition or affirms the conviction. Cf. Clay v. United States, 537
U.S. 522, 527, 123 S. Ct. 1072, 1076 (2003) (applying the one-year statute of
limitations for federal habeas petitions, 28 U.S.C. § 2255). If he does not petition
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the Supreme Court, the prisoner’s conviction becomes final when the time for
filing that petition expires. Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002);
Nix, 393 F.3d at 1237.
The Supreme Court of the United States may grant a writ of certiorari to
review the final judgment of “the highest court of a State in which a decision
could be had.” 28 U.S.C. § 1257(a). A defendant has 90 days from the judgment
of the state court of last resort to file a petition for a writ of certiorari in the
Supreme Court of the United States. U.S. Sup. Ct. R. 13.1. In the absence of a
clear statutory or constitutional bar to higher state court review, see, e.g., Brown v.
Texas, 443 U.S. 47, 50, 99 S. Ct. 2637, 2640 (1979), the Supreme Court requires
petitioners to seek review in the state’s highest court before filing a petition for
certiorari. See, e.g., Stratton v. Stratton, 239 U.S. 55, 56, 36 S. Ct. 26, 27 (1915);
Gotthilf v. Sills, 375 U.S. 79, 80, 84 S. Ct. 187, 188 (1963); Banks v. California,
395 U.S. 708, 708, 89 S. Ct. 1901, 1901 (1969); Sandquist v. California, 419 U.S.
1066, 1066, 95 S. Ct. 651, 651 (1974).
Whether Pugh was entitled to seek direct review in the Supreme Court of
the United States determines the timeliness of his federal habeas petition. If Pugh,
on the one hand, was entitled to seek review of his conviction in the Supreme
Court of Georgia after the Georgia Court of Appeals affirmed his conviction on
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August 13, 2001, then Pugh’s conviction became final on August 23, 2001, when
the 10-day period for seeking review in the Supreme Court of Georgia expired.
See Ga. Sup. Ct. R. 38(2). In that event, the limitation period expired on August
22, 2002. If Pugh, on the other hand, was entitled to petition the Supreme Court
of the United States to review the judgment of the Georgia Court of Appeals
without first seeking review in the Supreme Court of Georgia, then his conviction
became final on November 12, 2001, which was 90 days after the decision of the
Georgia Court of Appeals. In that event, 41 days of the limitation period would
have remained on October 11, 2002, when Pugh filed his state habeas petition.
That filing would have tolled the limitation period until October 13, 2004, when
Pugh’s application for a certificate of probable cause to appeal the denial of the
habeas petition was denied. See 28 U.S.C. § 2244(d)(2); Ford v. Moore, 296 F.3d
1035, 1038 (11th Cir. 2002). Pugh filed his federal habeas petition on October 27,
2004, which was 27 days before the one-year limitation period would have
expired.
In our decisions regarding the timeliness of habeas petitions filed by Florida
prisoners, we have required the inclusion of the 90-day period for seeking direct
review in the Supreme Court whenever the prisoner sought review in the highest
court of Florida in which direct review could have been had. In Nix, for example,
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we held that a Florida prisoner’s conviction became final 90 days after the Florida
district court of appeal affirmed his conviction, because the prisoner could have
sought review in the Supreme Court of the United States without first seeking
review in the Supreme Court of Florida. Nix, 393 F.3d at 1237. In Bond, the
conviction of another Florida prisoner, who was entitled to seek review in the
Supreme Court of Florida, became final 90 days after that court denied his motion
for rehearing. Bond, 309 F.3d at 774.
We have not yet considered when a Georgia conviction becomes final, but
Smith argues that the court of last resort in Georgia is its supreme court. Pugh
concedes the point, and we agree. Although the Georgia Constitution
circumscribes review by the state supreme court and vests the remainder of
appellate jurisdiction in the court of appeals, Ga. Const. Art. VI, § VI, ¶¶ II-V; id.
§ V, ¶ III, the certiorari jurisdiction of the supreme court to hear cases of “great
public importance,” Ga. Const. Art. VI, § VI, ¶ V; Ga. Code § 5-6-15; Ga. Sup. Ct.
R. 40, according to that court, “places no limit on [its] certiorari jurisdiction.”
State v. Tyson, 273 Ga. 690, 692, 544 S.E.2d 444, 446 (2001). The Supreme
Court of Georgia was the highest court in the state in which a decision on direct
review of Pugh’s conviction could have been had. Because Pugh was not entitled
to petition the Supreme Court of the United States for a writ of certiorari and was
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not entitled to the 90-day period for filing that petition, Pugh’s conviction became
final on August 23, 2001, which was more than a year before he filed his first
petition for habeas relief in state court.
B. The District Court Did Not Abuse Its Discretion When
It Did Not Hold an Evidentiary Hearing.
Although Pugh concedes that the Supreme Court of Georgia was available
to review his conviction, Pugh argues that the district court erred by not holding
an evidentiary hearing to determine whether he, in fact, sought direct review in
that court or was otherwise entitled to equitable tolling. We disagree. “Section
2244 of Title 28 of the United States Code does not require a hearing on the issue
of time-bar or equitable tolling, so the decision as to whether to conduct an
evidentiary inquiry is a matter left to the sound discretion of the district court.”
Drew v. Dep’t of Corr., 297 F.3d 1278, 1292 (11th Cir. 2002). An evidentiary
hearing may be necessary “[w]here the material facts are in dispute,” Turner v.
Crosby, 339 F.3d 1247, 1274 (11th Cir. 2003), but “‘[a] petitioner is not entitled to
an evidentiary hearing . . . when his claims are merely conclusory allegations
unsupported by specifics.’” Drew, 297 F.3d at 1293 n.7 (quoting Tejida v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)).
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The cryptic allegations in Pugh’s pro se pleadings in the district court, even
when construed liberally, see Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998), did not create a dispute of material facts about the timeliness of
Pugh’s petition. On the contrary, Pugh’s habeas petition admitted, even before
Smith moved to dismiss the petition as untimely, that his attorneys on direct
appeal had not sought review in the Supreme Court of Georgia. Smith then
alleged and Pugh did not dispute that the Georgia courts had no record of Pugh’s
filing of a petition in the Supreme Court of Georgia. The record provided no basis
for further inquiry by the district court.
Neither did the record suggest a need for an evidentiary hearing regarding
equitable tolling. At most, Pugh alleged attorney negligence, which is not a
ground for the “extraordinary remedy” of equitable tolling. Howell v. Crosby, 415
F.3d 1250, 1252 (11th Cir. 2005). A prisoner is not entitled to equitable tolling
unless he demonstrates both diligence in his efforts to file a timely petition and
extraordinary and unavoidable circumstances. Arthur v. Allen, 452 F.3d 1234,
1252 (11th Cir. 2006). Pugh bore the burden of establishing that equitable tolling
was warranted, Rainey v. Sec’y for the Dep’t of Corr., 443 F.3d 1323, 1330 (11th
Cir. 2006), but Pugh’s allegations actually undermined any suggestion of diligence
on his part. The district court did not abuse its discretion by failing to inquire
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further, when Pugh alleged nothing that would have called into question either the
untimeliness of his petition or his entitlement to equitable tolling.
IV. CONCLUSION
The dismissal of Pugh’s habeas petition is
AFFIRMED.
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