[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
May 23, 2008
No. 07-10453 THOMAS K. KAHN
_____________ CLERK
D.C. Docket No. 05-00062 CV-JTC-3
JOHNEL EDWARD TAYLOR,
Petitioner-Appellant,
versus
WARDEN ROSE WILLIAMS,
Respondent-Appellee.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
__________________________
(May 23, 2008)
Before TJOFLAT, ANDERSON and COX, Circuit Judges.
TJOFLAT, Circuit Judge:
The petitioner, Johnel Edward Taylor, is serving sentences in a Georgia
prison for murder and possession of a firearm. On July 8, 2005, he challenged the
constitutional validity of his convictions in a petition for a writ of habeas corpus
filed with the United States District Court for the Northern District of Georgia
pursuant to 28 U.S.C. § 2254.1 On October 26, 2006, the district court denied the
writ as time-barred by the one-year statute of limitations created by the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2244(d)(1).2 He thereafter filed a timely notice of appeal, and we granted his
application for a certificate of appealability (“COA”) as to one issue: whether the
district court erred when it found that the Georgia procedural rule, which deems a
petition for post-conviction relief filed when it is received and marked as filed by
the clerk of the petitioned court, governs the date when AEDPA’s one-year
limitations period is tolled.
1
28 U.S.C. § 2254(a) provides that:
[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.
2
28 U.S.C. § 2244(d)(1) states, in pertinent part:
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
limitation shall run from the latest of –
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review . . . .
2
I.
On December 1, 1998, a Spalding County Superior Court jury found Taylor
guilty of felony murder and possession of a firearm during the commission of a
crime. The superior court thereafter sentenced him to life imprisonment on the
murder charge and a consecutive five-year term for the firearm possession offense.
His convictions and sentences were affirmed by the Georgia Supreme Court on
July 5, 2000. Taylor v. State, 532 S.E.2d 395 (Ga. 2000). Taylor did not move the
court for a rehearing or seek a writ of certiorari from the United States Supreme
Court. Accordingly, his convictions became final on October 3, 2000. See Sup.
Ct. R. 13 (“[A] petition for a writ of certiorari to review a judgment in any case,
civil or criminal, entered by a state court of last resort . . . is timely when it is filed
with the Clerk of this Court within 90 days after entry of judgment.”); Bond v.
Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that AEDPA’s statute of
limitations does not begin to run until the 90-day window for seeking a writ of
certiorari in the Supreme Court expires.).
On January 17, 2001, Taylor signed and deposited a pro se petition for a
writ of habeas corpus, directed to the Superior Court of Chattooga County, into the
prison mail system. The clerk of that court filed Taylor’s petition on February 2,
2001. On August 26, 2002, following two evidentiary hearings, the superior court
3
denied relief. The Georgia Supreme Court denied Taylor a certificate of probable
cause to appeal that decision on October 25, 2004.
On July 8, 2005, Taylor, proceeding pro se, signed the habeas petition now
before us and presumably delivered it to the prison authorities for mailing. It was
received by the clerk of the United States District Court for the Northern District
of Georgia four days later.3 Warden Williams, the respondent, moved the court to
dismiss the petition as untimely, arguing that Taylor failed to file it within
AEDPA’s one-year limitations period. As noted above, the district court
dismissed the petition as time-barred on October 26, 2006.
II.
A.
In this case, AEDPA’s one-year limitations period began to run on October
3, 2000, the undisputed date that Taylor’s convictions became final. See 28
U.S.C. § 2244(d)(1)(A). Thus, absent a tolling of the one-year limitations period,
Taylor had until October 3, 2001, to file the instant petition.4
3
Under the federal “mailbox rule,” a pro se federal habeas petition is deemed to be filed
on the date it is delivered to prison authorities for mailing. Alexander v. Sec’y, Dep’t of Corr.,
No. 06-12501, slip op. at 2 n.4 (11th Cir. Apr. 8, 2008). After filing his petition, Taylor retained
counsel and, on December 21, 2005, counsel filed an amended habeas petition.
4
We review a district court’s determination that a § 2254 petition is time-barred under
AEDPA de novo. Wade v. Battle, 379 F.3d 1254, 1259 n.5 (11th Cir. 2004).
4
AEDPA’s limitations period is tolled while “a properly filed application for
State post-conviction or other collateral review . . . is pending.” 28 U.S.C. §
2244(d)(2).5 Taylor argues that we should use January 17, 2001, the date he
signed his state habeas petition and deposited it into the prison mail system, as the
date that the petition was properly filed for tolling purposes. Warden Williams
responds that February 2, 2001, the date the clerk of the Superior Court filed
Taylor’s petition, is the appropriate date to begin tolling the limitations period.
This distinction is of utmost importance. If tolling began on the date Taylor
signed his petition, then only 362 days passed before he filed his federal petition.6
However, if tolling began on February 2, 2001, when Taylor’s state petition was
filed by the clerk of the Superior Court, then 378 days elapsed, and the instant
petition would be time-barred under AEDPA.7 Our decision in this case,
5
In addition to the statutory tolling provision, we have recognized that equitable tolling
is warranted “in rare circumstances.” See Diaz v. Sec’y for Dept. of Corr., 362 F.3d 698, 700
(11th Cir. 2004). Because Taylor has not invoked this exception and it is not included within the
COA, we do not address it. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998)
(holding that “appellate review is limited to the issues specified in the COA”).
6
This period of 362 days is calculated by taking the number of days from October 3,
2000, when Taylor’s conviction became final, to January 17, 2001, when Taylor signed his state
habeas petition (106 days), and adding to them the number of days that elapsed between October
25, 2004, when the Georgia Supreme Court denied Taylor’s application for a certificate of
probable cause to appeal, and July 8, 2005, when Taylor delivered his federal habeas petition to
the prison authorities for filing (256 days).
7
This period of 378 days is calculated by taking the number of days from October 3,
2000, when Taylor’s conviction became final, to February 2, 2001, when the clerk of the
5
therefore, turns on when Taylor “properly filed” his state habeas petition, thereby
tolling the one-year limitations period for filing his federal petition.8
B.
To determine when a state habeas petition has been “properly filed,” we
look to the applicable state law governing filings. See Artuz v. Bennett,
531 U.S. 4, 8, 121 S. Ct. 361, 364, 148 L. Ed. 2d 213 (2000); Wade v. Battle, 379
F.3d 1254, 1260 (11th Cir. 2004). At the outset, it is important to note that the
particular question before us has not been addressed by the Georgia courts. See
Wade, 379 F.3d at 1258 n.2 (“[W]e are aware of no Georgia court applying the
mailbox rule to initial pro se state habeas petitions.”).9 A lack of explicit Georgia
precedent on an issue, however, does not absolve us of our duty “to decide what
the state courts would hold if faced with [the issue].” Arceneaux v. Texaco, Inc.,
Superior Court filed his state habeas petition (122 days), and adding to them the number of days
that elapsed between October 25, 2004, when the Georgia Supreme Court denied Taylor’s
application for a certificate of probable cause to appeal, and July 8, 2005, when Taylor delivered
his federal habeas petition to the prison authorities for filing (256 days).
8
In contrast to many of our cases analyzing the “properly filed” language, the question
before us today requires an inquiry focused on when the proper filing occurred rather than
whether a proper filing ever occurred. For a discussion of this latter and more complex inquiry,
see Siebert v. Campbell, 334 F.3d 1018 (11th Cir. 2003).
9
The understandable explanation for this judicial silence is that Georgia did not establish
a limitations period for the filing of habeas petitions until 2004. See 2004 Ga. Laws Act 661
(codified as amended at O.C.G.A. § 9-14-42).
6
623 F.2d 924, 926 (5th Cir.1980) (citations omitted).10 We must anticipate what
the Georgia Supreme Court would say. See Ernie Haire Ford, Inc. v. Ford Motor
Co., 260 F.3d 1285, 1290 (11th Cir. 2001).
In Massaline v. Williams, 554 S.E.2d 720, 722-23 (Ga. 2001), the Georgia
Supreme Court adopted the mailbox rule when a pro se prisoner seeks to appeal
from a superior court decision denying his habeas corpus petition. Adopting the
reasoning of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245
(1988), the Massaline court recognized that a mailbox rule was necessary because
of the “unique obstacles” faced by pro se prisoners:
Unlike litigants who are not incarcerated, pro se prisoners cannot
monitor the processing of their appellate filings to ensure that the
clerk of the court timely receives them. . . . And, of course, being pro
se, they cannot rely on their lawyer to ensure the safe and timely
filing of their appeals. Pro se prisoners also must entrust their legal
papers to the prison officials, even though the warden is typically the
named defendant in a habeas corpus action.
Massaline, 554 S.E.2d 720 at 552-53 (citing Houston, 487 U.S. at 270-72, 108 S.
Ct. at 2382, 101 L. Ed. 2d 245).
The rationale of Massaline applies equally in the case at hand. We discern
no basis for distinguishing between a pro se prisoner filing a habeas petition and a
10
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent decisions of the former Fifth Circuit handed down prior to October
1, 1981.
7
pro se prisoner filing a habeas appeal, and we have no reason to believe that the
Georgia Supreme Court would find one. “[A]dopting a mailbox rule for pro se
prisoners promotes judicial fairness and helps assure that habeas corpus cases are
decided on the merits and not the overly technical application of procedural rules.”
Id. at 722.11
We therefore hold that Taylor’s state habeas petition was “properly filed”
when Taylor deposited it into his prison’s mail system on January 17, 2001. This
was three days prior to the expiration of AEDPA’s one-year limitations period and
thus was timely. The judgment of the district court is accordingly vacated, and the
case is remanded for further proceedings.
VACATED and REMANDED.
11
The Georgia Supreme Court’s concern for pro se prisoners seeking habeas relief does
not extend to pro se prisoners seeking non habeas relief. As the court stated in Riley v. State,
626 S.E. 2d 116, 117 (Ga. 2006), “the mailbox rule established in Massaline does not exempt a
pro se prisoner from complying with the statutory requirements to file a timely notice in any non
habeas criminal or civil filing.” See, e.g., Mingledorff v. Stokely, 477 S.E.2d 374, 775 (Ga. Ct.
App. 1996) (rejecting the mailbox rule in the context of a negligence action brought by a prisoner
proceeding pro se). This distinction is grounded in Georgia’s vigorous protection of “a pro se
prisoner’s ability to pursue his constitutional right to habeas corpus.” Massaline v. Williams,
554 S.E.2d 720, 722 (Ga. 2001); see also Ga. Const. art. I, § 1, ¶ XV.
8
COX, Circuit Judge, dissenting:
My guess is that the Georgia Supreme Court would decide this case the
same way today’s court decides it. The result is certainly equitable. A decision to
certify a question of state law to the supreme court of that state is a discretionary
one, Escareno v. Noltina Crucible & Refractory Corp., 139 F.3d 1456, 1461 (11th
Cir. 1998), but in my view a proper exercise of our discretion in this case requires
certification. Along the way to reaching the result the court reaches today it
overrules sub silentio some Georgia precedent and decides an important question
of Georgia law.
Today’s decision finds little support in Georgia precedent. Georgia’s Civil
Practice Act (“CPA”), Ga. Code Ann. §§ 9-11-1 to -133, “applies in habeas corpus
proceedings with regard to questions of pleading and practice.” Rolland v. Martin,
637 S.E.2d 23, 24 (Ga. 2006) (quoting State v. Jaramillo, 620 S.E.2d 798, 800
(Ga. 2005). Under the CPA, “[a] civil action is commenced by filing a complaint
with the court.” Ga. Code Ann. § 9-11-3(a). Thus in Georgia, a petition for a writ
of habeas corpus is “properly filed” with the court. Georgia has not liberally
interpreted the phrase “with the court.” “While some federal courts allow pro se
inmates to file certain civil pleadings with the jailer, such a rule does not prevail in
Georgia. ‘A civil action is commenced by filing a complaint with the court.’ And
9
filing ‘with the court’ does not mean depositing the complaint in the mail.”
Mingledorff v. Stokely, 477 S.E.2d 374, 375 (Ga. Ct. App. 1996) (citations
omitted). Nothing in Massaline v. Williams, 554 S.E.2d 720 (Ga. 2001), or in any
other Georgia decision, overrules precedent that a civil action is commenced by a
proper filing “with the court.”
The habeas appeals statute at issue in Massaline, Ga. Code Ann. § 9-14-
52(b), includes a similar requirement, that habeas appeals must be filed “with the
clerk.” Over a vigorous dissent, the supreme court held, consistent with other
Georgia statutes including a “with the clerk” requirement, that a prisoner’s notice
of appeal and certificate of probable cause to appeal denial of habeas relief are
deemed filed “on the date [the prisoner] delivers them to prison authorities for
forwarding to the clerks of this Court and the superior court . . . .” 554 S.E.2d at
722-23. But, Georgia courts have not yet expanded this narrow and judicially-
created exception, which, before today, applied only to habeas appeals.
In Riley v. State, 626 S.E.2d 116 (Ga. 2006), the Georgia Supreme Court
said, “Massaline . . . by its explicit terms applies only in the narrow context of
habeas corpus appeals to permit a pro se prisoner’s notice of appeal to be deemed
filed on the date delivered to prison authorities.” Id. at 117. Although the issue
before the Riley court was not whether the mailbox rule applied to initial habeas
10
filings, the court twice explicitly limited Massaline’s application to “appeals.”
Also, in McCroskey v. State, ---S.E.2d---, No. 07-2173, 2008 WL 518219 (Ga. Ct.
App. Feb. 28, 2008), the Georgia Court of Appeals refused to extend Massaline to
a pro se prisoner’s notice of direct appeal.
Two federal district courts in Georgia, the Northern and Middle Districts,
have relied on Riley in holding, in unpublished opinions, that the mailbox rule
does not apply to initial habeas filings. See Phillips v. Brown, No. 07-01601, 2008
WL 140712, *3 n.2 (N.D. Ga. Jan. 11, 2008) (citing Riley) (“[I]t appears that,
under Georgia law, this [prison mailbox] rule does not apply to the original filing
of a state habeas petition.”); Green v. Nelson, No. 06-00120, 2007 WL 2460770,
*3 (M.D. Ga. Aug. 24, 2007) (citing Riley) (“The Georgia Mailbox rule does not
apply to the filing of the original state habeas petition, only to the application for
certificate of probable cause to appeal and the notice of appeal of the state habeas
petition.”).
I would certify the question to the Georgia Supreme Court.
11