Robert Marvin Powles v. Warden Paul Thompson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 24, 2008
No. 07-11247
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-02853-CV-JEC-1
ROBERT MARVIN POWLES,
Petitioner-Appellant,
versus
WARDEN PAUL THOMPSON,
THURBERT BAKER,
Attorney General of the State
of Georgia,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 24, 2008)
Before BLACK, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Robert Marvin Powles, a Georgia state prisoner proceeding pro se, appeals
the district court’s dismissal of his habeas petition, 28 U.S.C. § 2254 as time-
barred under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996). Because the mailbox rule
applied to Powles’s state habeas filings, we conclude the federal petition was
timely filed and accordingly, we vacate and remand for further proceedings.
Powles is serving a term of fifty-five years imprisonment following his 2000
conviction for aggravated assault, drug trafficking, and possession of a firearm.
Powles filed a direct appeal, which the Georgia Court of Appeals denied on
February 8, 2001. Powles v. State, 545 S.E.2d 153 (Ga. Ct. App. 2001). Powles
did not file a petition for cert. with the Georgia Supreme Court. Thereafter, Powles
filed state motions seeking to compel corrections in the trial transcripts; the
motions were denied. Powles filed his state habeas petition on February 18, 2002.
On April 19, 2006, the state court denied relief, and the Georgia Supreme Court
denied a certificate of probable cause to appeal on October 31, 2006. While the
state petition was pending, Powles filed a federal habeas petition, which was
dismissed without prejudice.
On November 14, 2006, Powles signed the instant § 2254 petition and
delivered it to prison authorities for mailing. The magistrate judge sua sponte
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recommended that the petition be dismissed as untimely because more than one-
year had expired since the conviction became final under 28 U.S.C. § 2244(d)(1).
According to the magistrate judge, the time period began to run on February 18,
2001, which was ten days after the conviction was affirmed on direct appeal and
signified the expiration of the time in which to file for cert. review in the state
supreme court. The time ran until February 18, 2002 when Powles filed his state
habeas petition. It then tolled until the state petition was denied and the state
supreme court decline to issue a certificate of probable cause to appeal on October
31, 2006. The magistrate judge determined that, had Powles filed his petition on
that date, it would have been timely filed. Powles, however, did not file the federal
petition until November 14, 2006. The magistrate judge noted that none of the
other state motions Powles filed would have tolled the limitations period. The
magistrate judge further concluded that the limitations period would not toll during
the time it took for Powles to learn of the court’s decisions.
Powles objected to the recommendation, arguing that the limitations did not
begin to run until February 26, 2001 and tolled when he placed his state habeas
petition in the prison mail services on February 4, 2002, and that he was not
notified of the state supreme court’s denial of review until November 3, 2006. He
thus claimed that he had eleven days remaining in the limitations period when he
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filed his federal petition on November 14, 2006.
The district court considered Powles’s arguments, but adopted the magistrate
judge’s recommendation and dismissed the petition as time-barred. Powles
requested a certificate of appealability (“COA”) on the timeliness determination
and the merits of his § 2254 petition. The district court granted the COA without
specifying the issues.
“This court reviews de novo the district court’s determination that the
petition for federal habeas corpus relief was time-barred under the AEDPA.”
Moore v. Crosby, 321 F.3d 1377, 1379 (11th Cir. 2003). The AEDPA imposes a
one-year statute of limitations on petitions for writs of habeas corpus. In particular,
28 U.S.C. § 2244(d)(1) provides “[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.” 28 U.S.C. § 2244(d)(1). Relevant to this case, the
limitation 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.”
Id. § 2244(d)(1)(A). The one-year statute of limitations set forth in § 2244 is tolled
when a state prisoner properly files an application for post-conviction or collateral
review with the state and such application is pending. 28 U.S.C. § 2244(d)(2)
(emphasis added). The Supreme Court has determined that “an application is
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‘properly filed’ when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121
S. Ct. 361, 364, 148 L. Ed. 2d 213 (2000) (emphasis in original). An untimely
application is not properly filed, and thus does not toll the limitations period.
Wade v. Battle, 379 F.3d 1254, 1262 (11th Cir. 2004).
At issue in this case is whether the mailbox rule applies to state habeas
petitions. Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245
(1988). If so, Powles’s petition was filed on February 4, 2002, and the time tolled
until the state denied relief on October 31, 2006, and then ran for an additional
fourteen days until the § 2254 petition was filed. Under that scenario, a total of
364 days expired. If the mailbox rule does not apply, and the petition was filed on
February 18, 2002, the petition was untimely.
The outcome of this case is dictated by this court’s recent decision in Taylor
v. Williams, No. 07-10453 (11th Cir. May 23, 2008), in which this court concluded
that the mailbox rule applied to a prisoner’s state habeas petition. Because the
mailbox rule applied, Powles’s petition was timely filed. Accordingly, we
VACATE and REMAND with instructions for the district court to consider the
merits of Powles’s habeas petition. Powles’s pending motion for reconsideration is
denied as moot.
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