[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 23, 2003
No. 02-11312 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00252-CV-4
JAMES EDWARD STAFFORD, JR.,
Petitioner-Appellant,
versus
PAUL THOMPSON, Warden,
THURBERT E. BAKER,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 23, 2003)
Before DUBINA, RONEY and COX, Circuit Judges.
PER CURIAM:
Petitioner James Edward Stafford, Jr., a Georgia state prisoner, appeals the
district court’s dismissal of his pro se 28 U.S.C. § 2254 petition for writ of habeas
corpus as time-barred under the one-year filing limitation set forth in § 2244(d).
During oral argument, it appeared that the dispositive issue on appeal is whether the
federal habeas corpus statute tolled for the 110 days between the voluntary dismissal
of Stafford’s first Georgia state habeas corpus petition until the filing of his second
Georgia state habeas corpus petition. After careful de novo review of all issues
presented in the briefs and at oral argument, we hold that the district court properly
determined that once Stafford voluntarily dismissed his first state habeas corpus case,
there was nothing left “pending” in Georgia state courts to toll the federal habeas
corpus statute under § 2244(d)(2) until he filed his second state habeas corpus
application 110 days later. Therefore, the federal habeas corpus statute did not toll
during that 110-day period.
Stafford was sentenced to life imprisonment in Georgia state court after a jury
found him guilty of felony murder, aggravated assault, and driving with an unlawful
blood alcohol level. His convictions and sentences were affirmed in a direct appeal
by the Georgia Supreme Court on November 1, 1999. See Stafford v. State, 523
S.E.2d 307 (Ga. 1999). The convictions became final ninety days later, on January
30, 2000, at the expiration of the ninety day period permitted for him to seek
discretionary direct review to the United States Supreme Court.
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After that date, Stafford had one year within which to apply for writ of habeas
corpus. That one-year limitation period would be tolled, however, during the time
any state court collateral proceedings were “pending,” as provided by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Coates v.
Byrd, 211 F.3d 1225, 1226-27 (11th Cir. 2000); 28 U.S.C. § 2244. The statute
explicitly sets forth that “[t]he 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 shall not be counted toward any period of limitation under this
subsection.” Id. § 2244(d) (emphasis supplied); see Wilcox v. Florida Dep’t of
Corrections, 158 F.3d 1209, 1210 n.2 (11th Cir. 1998).
The issue before the Court concerns exactly the number of days that Stafford
did not have an application for collateral relief pending in the Georgia courts. The
days when nothing was pending would count toward the one-year limitation period.
On May 8, 2000, after ninety-nine (99) days elapsed, with nothing pending,
Stafford filed his first Georgia state habeas corpus petition, asserting several claims.
That 99 days would reduce the one-year period to 266 days. The state court, at
Stafford’s request, voluntarily dismissed his claim without prejudice on July 10, 2000
during a court hearing on the state petition. One hundred and ten days (110) elapsed
before Stafford filed his second state habeas corpus petition on October 24, 2000.
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If there was nothing pending during that 110 days, there would only be 156 days for
him to file a federal habeas corpus petition. That second state habeas corpus petition
was denied on March 9, 2001. Stafford failed to submit a notice of appeal of that
denial before the expiration of the thirty days required to do so under Georgia law.
Although Stafford argues otherwise, record evidence suggests that the earliest he
submitted a notice of appeal to prison officials was April 10, 2001, one day after the
April 9, 2001 thirty-day deadline. The statute of limitations for federal habeas corpus
filing purposes therefore clearly tolled from October 24, 2000, the day of the filing
of the second state habeas corpus petition to April 9, 2001, the last day of which
Stafford could have timely appealed the state court’s denial of that petition to the
Georgia Supreme Court.
If the 110-day period is excluded from tolling, on April 9, 2001, there remained
for federal habeas corpus statute of limitation purposes, the 156 days. One hundred
and seventy-two days (172) elapsed, however, before Stafford submitted his § 2254
petition to prison officials for mailing on September 28, 2001. That was sixteen (16)
days beyond the limitations period. Under that scenario, the petition would have been
properly dismissed as time-barred under the § 2254 one-year filing limitation.
Stafford argues, however, that the 110-day period between dismissal and
refiling should have been counted as tolling the federal statute.
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Georgia’s renewal statute, O.C.G.A. § 9-2-61 states the following:
9-2-61. Renewal of case after dismissal.
(a) When any case has been commenced in either a state or
federal court within the applicable statute of limitations
and the plaintiff discontinues or dismisses the same, it may
be recommenced in a court of this state or in a federal court
either within the original applicable period of limitations or
within six months after the discontinuance or dismissal,
whichever is later . . .
Id. Stafford argues that his first Georgia state habeas corpus petition remained
“pending” for the purposes of § 2244(d)(2) during the interim “renewal” period
provided in § 9-2-61 following the voluntary dismissal. Stated another way, Stafford
argues that his first state habeas corpus petition remained “pending,” and thus tolled
the one-year statute of limitation under § 2244(d)(2), from July 10, 2000 –the date of
the initial petition– until October 24, 2000, the date where he simply exercised his §
9-2-61 statutory option to “renew” and revive his petition.
No case law has been cited applying Georgia’s renewal statute to state habeas
corpus petitions. Citing to the text of the § 9-2-61, the State asserts that the statute
does not toll for the 110-day interim period between the voluntary dismissal of the
first state habeas corpus petition and the filing of the second state habeas corpus
petition, arguing that Georgia’s renewal statute only applies to civil proceedings
where there is a specified “limitation” time period. Since Georgia state habeas
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corpus proceedings do not have a limitation period for filing habeas corpus petitions,
the renewal statute does not apply to such petitions. Even if such a statute would
apply to state petitions, however, it does not appear that the federal limitation statute
would be tolled under the federal statute when there was nothing “properly filed” in
the state proceeding for the state court to consider.
The Supreme Court has set forth the purposes of the AEDPA. See Duncan v.
Walker, 533 U.S. 167, 178-80 (2001). Those purposes include: (1) ensuring “that the
state courts have the opportunity fully to consider federal-law challenges to a state
custodial judgment before the lower federal courts may entertain a collateral attack
upon that judgement,” and (2) serving “the well-recognized interest in the finality of
state court judgments.” Id. at 178-79 (emphasis supplied). The Court further
explained the purpose of the tolling provision of the AEDPA, “The tolling provision
of § 2244(d)(2) balances the interests served by the exhaustion requirement and the
limitation period . . . by protecting a state prisoner’s ability later to apply for federal
habeas relief while state remedies are being pursued.” Id. at 179; see also Bridges
v. Johnson, 284 F.3d 1201, 1203 (11th Cir. 2002).
When Stafford voluntarily dismissed his first state petition for habeas corpus
on July 10, 2000, there was nothing for the state court to “consider” until he filed his
second state habeas corpus claim 110 days later on October 24, 2000. Simply put,
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there was nothing “pending” before the state court during that interim 110-day period.
Cf. Woodford v. Garceau, ____ S.Ct. ____, 70 U.S.L.W. 4217 (U.S. Mar. 25, 2003)
(No. 01-1862) (holding in a pre-AEDPA case that, although habeas corpus petitioner
had previously moved for appointment of counsel and a stay of execution in federal
district court, “a case does not become ‘pending’ until an actual application for
habeas corpus relief is filed in federal court”).
There is a question as to whether the statute of limitations should have tolled
from April 10, 2001, the date Stafford filed a Certificate for Probable Cause (“CPC”)
to appeal the denial of his second state habeas corpus petition to the Georgia Supreme
Court, to November 5, 2001, when the Georgia Supreme Court dismissed that CPC
as untimely. The Georgia Supreme Court determined that it did not have jurisdiction
to hear the CPC because Stafford’s notice was untimely under Georgia’s procedural
rules.
Webster v. Moore, 199 F.3d 1256 (11th Cir. 2000) controls this issue. First,
Webster held that this Court must give “due deference” to that procedural
determination by the Georgia Supreme Court. Id. at 1259. Thus, we are bound by the
state court’s determination that the appeal was untimely. Second, Webster held that
a petitioner’s state court habeas corpus filing is not “properly filed” within the
meaning of § 2244 (d)(2) if the state court has determined that the petitioner’s state
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court filing did not conform with the state’s filing deadlines. Here, the Georgia
Supreme Court determined that Stafford’s CPC was untimely. Therefore, the petition
was not “properly filed” and the statute of limitations thus did not toll under §
2244(d)(2) while the Georgia Supreme Court had it under consideration.
Stafford has presented several other arguments in his pro se briefs, his court-
appointed attorney’s supplemental briefs, and at oral argument. All of these issues
have been carefully considered. None of those arguments merit discussion, however,
as none indicate any reversible error.
AFFIRMED.
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