United States District Court, M.D. Georgia, Valdosta Division
MARC T. TREADWELL, District Judge.
Petitioner Ray Jefferson Cromartie filed his federal petition for a writ of habeas corpus on March 20, 2014. (Doc. 1.) Believing AEDPA's statute of limitations had run on March 3, 2014, the Respondent moved to dismiss. (Doc. 9.) Cromartie then claimed that he was entitled to equitable tolling, but the Court questioned whether the statute of limitations in fact had run. (Doc. 15). The answer to that question turns on whether Cromartie's state habeas action stopped pending on the day the Georgia Supreme Court denied his application for a certificate of probable cause to appeal ("CPC application"), as the Respondent claims, or the date the Georgia Supreme Court issued its remittitur, or the date the remittitur was received by the trial court. AEDPA's statute of limitations has run only if Cromartie's state habeas action stopped pending on the day the Georgia Supreme Court denied his CPC application. Georgia law, which governs this issue, is clear - an appeal is pending until "the appellate court has issued the remittitur and it has been received and filed in the clerk's office of the court below." Day v. Chatman, 130 F.Appx. 349, 350 (11th Cir. 2005) (quoting Chambers v. State, 262 Ga. 200, 201, 415 S.E.2d 643, 644-645 (1992)). Consequently, as the Eleventh Circuit held in Day, a state habeas petition is pending until the trial court receives the remittitur. Id. at 351. Accordingly, the Respondent's motion to dismiss is DENIED.
I. PROCEDURAL HISTORY
On September 26, 1997, Cromartie was convicted of malice murder, armed robbery, aggravated battery, aggravated assault, and four counts of possession of a firearm during the commission of a crime. Cromartie v. State, 270 Ga 780, 781 n.1, 514 S.E.2d 205, 209 n.1 (1999). On October 1, 1997, Cromartie was sentenced to death for the murder. Id. The Georgia Supreme Court affirmed his conviction and sentence on March 8, 1999. Id. at 781, 514 S.E.2d at 209. The United States Supreme Court denied certiorari on November 1, 1999. Cromartie v. Georgia, 528 U.S. 974 (1999). AEDPA's one-year statute of limitations started to run. 28 U.S.C. § 2244(d)(1)(A).
Cromartie filed his state habeas corpus petition on May 9, 2000. (Doc. 19-14). This tolled the statute of limitations. 28 U.S.C. § 2244(d)(2). The trial court denied relief in an order entered February 9, 2012. (Doc. 23-37). Cromartie was granted an extension of time to file his CPC application on March 2, 2012. (Docs. 23-38; 23-39). Around this time, according to Cromartie, a prosecution witness came forward and "indicated" he testified falsely at Cromartie's trial. (Doc. 1 at 8). On March 8, 2012, Cromartie filed an emergency motion in the Georgia Supreme Court requesting an extension of time to file his notice of appeal. (Doc. 23-40). On March 9, 2012, the Georgia Supreme Court granted a 30-day extension. (Doc. 23-41.)
Cromartie then moved for reconsideration in the trial court. (Doc. 1 at 9). Because his motion for reconsideration did not toll the time for filing a notice of appeal, Cromartie filed a notice of appeal on April 9, 2012. (Docs. 1 at 8; 24-2). Although Cromartie's notice of appeal had divested its jurisdiction, the trial court denied Cromartie's motion for reconsideration. (Doc. 24-3). The Georgia Supreme Court, on October 1, 2012, remanded the case to the trial court "to allow it to regain jurisdiction and... enter an appropriate new order." (Doc. 24-8). In an order entered October 9, 2012, the trial court again denied Cromartie's motion for reconsideration. (Doc. 24-9).
Cromartie filed a notice of appeal on October 24, 2012, and his CPC application on November 8, 2012. (Docs. 24-10; 24-11). The supreme court denied the CPC application on September 9, 2013. (Doc. 24-14). The supreme court issued its remittitur on December 10, 2013, and the remittitur was filed in the trial court on February 4, 2014. (Doc. 33-1). The United States Supreme Court denied Cromartie's petition for writ of certiorari on April 21, 2014. Cromartie v. Chatman, 134 S.Ct. 1879 (2014).
Cromartie filed his federal habeas petition in this Court on March 20, 2014. (Doc. 1). At Cromartie's request, the Court appointed Brian Kammer, Executive Director of the Georgia Resource Center, to represent him. (Doc. 6). On March, 28, 2014, Cromartie requested the additional appointment of attorney Martin McClain. (Doc. 8). Both Kammer and McClain had represented Cromartie in his state habeas proceedings. (Doc. 8 at 1-2).
On April 1, 2014, the Respondent moved to dismiss Cromartie's federal habeas petition as untimely. (Doc. 9). The motion alleges that the Georgia Supreme Court denied Cromartie's CPC application on September 9, 2013, and then concludes that his federal habeas petition was filed "382 days after his conviction and death sentence became final." (Doc. 9 at 4). Although the motion does not state it expressly, clearly the Respondent contends that § 2244(d)(2) tolling for Cromartie's state habeas action ended the day the Georgia Supreme Court denied Cromartie's CPC application.
On April 2, 2014, Kammer moved to withdraw, claiming that he could not represent Cromartie because his conduct could be at issue in determining whether Cromartie was entitled to equitable tolling. (Doc. 11 at 2). The Court granted Kammer's motion to withdraw and appointed McClain on April 14, 2014. (Doc. 13.)
On June 16, 2014, Cromartie filed a response to the motion to dismiss. (Doc. 15). Cromartie did not dispute Respondent's assertion that statutory tolling ended on September 9, 2013-the date the Georgia Supreme Court denied his CPC application. Rather, he argued that 28 U.S.C. § 2244(d)(1)(D) was the triggering date for AEDPA's statute of limitations for several of his claims and that equitable tolling applied to any untimely filed claims. (Doc. 15 at 7-9).
On September 16, 2014, McClain moved to withdraw as counsel and to substitute new counsel from the Federal Community Defender Office for the Eastern District of Pennsylvania. (Docs. 27; 28; 31). On October 9, 2014, the Court granted Cromartie's motion to substitute counsel. (Doc. 36).
Because the record filed by the Respondent did not include a copy of the Georgia Supreme Court's remittitur in Cromartie's state habeas action, the Court obtained a copy from the trial court. (Doc. 33-1). The Court learned that the supreme court issued the remittitur on December 10, 2013, and it was filed in the trial court on February 4, 2014. (Doc. 33-1). It was then apparent that Cromartie's federal petition was untimely only if statutory tolling ended on September 9, 2013, the day the Georgia Supreme Court denied his CPC application. If the state habeas action was still "pending" until either December 10, 2013, or February 4, 2014, his federal habeas petition was timely.
Based on this new information, Day, and Georgia cases holding that a Georgia judgment is final only when the appellate court's remittitur is filed with the trial court, the Court asked counsel for the Respondent whether the Respondent stood by his motion to dismiss. (Doc. 33 at 2). On September 24, 2014, Respondent confirmed that he did. (Doc. 34). He argued there "appears to be no clear rule from the Georgia Supreme Court holding that its denial of a state habeas appeal is only final after the issuance of remittitur, the transmittal of the remittitur to the trial court or its filing in the trial court." (Doc. 34 at 7-8). The Respondent suggested that, "given the lack of precedent on this issue, " the Court should certify a question to the Georgia Supreme Court for guidance. (Doc. 34 at 15).
AEDPA sets a one-year statute of limitations for seeking federal habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides: "The 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." Thus, this limitations period is tolled while a prisoner seeks post-conviction relief in state court. A state habeas "application is pending as long as the ordinary state collateral review process is in continuance'-i.e., until the completion of' that process. In other words, until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains pending.'" Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (quoting Webster's Third New International Dictionary 1669 (1993)). The Supreme Court has also explained that "[s]tate review ends when the ...