United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, Chief District Judge.
After an independent and de novo review of the entire record, the undersigned rejects the Magistrate Judge's Report and Recommendation, to which Respondents filed Objections. In their Objections, Respondents assert that Petitioner Michael Clements ('Clements") failed to establish the existence of an extraordinary circumstance which prevented him from filing his 28 U.S.C. § 2254 petition in a timely manner. Respondents maintain that the delays the Magistrate Judge discussed in his Report were avoidable with diligence. Respondents also contend that the explanations given for the delays do not constitute the type of extreme circumstances necessary to justify the application of equitable tolling. A prisoner must file a petition for a writ of habeas corpus in federal court within one (1) year. 28 U.S.C. § 2244 (d) (1) This statute of limitations period shall run from the latest of four possible dates:
(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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Clements's conviction became final at the time of his completion of the direct review process or when the time for seeking such review expired. 28 U.S.C. § 2244 (d) (1) (A); Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir. 2000). Clements was convicted in the Long County Superior Court on April 19, 2007. Clements timely filed a motion for new trial, which was denied on April 21, 2010. Clements filed a direct appeal on May 19, 2010. The Georgia Court of Appeals affirmed Cleinents's conviction and sentence on May 4, 2011. Clements had a period of ten (10) days to file a motion for reconsideration or a petition for a writ of certiorari. GA. CT. APP. R.38. Clements filed neither of these pleadings. Thus, his conviction became final on May 16, 2011, as May 14, 2011 fell on Saturday. FED. R. CIV. P.6(a) (1) (C) (if the last day of a period is a Saturday, Sunday, or legal holiday, the period continues until the next day that is not a Saturday, Sunday, or legal holiday). Because Clements's conviction became final on May 16, 2011, he had one year from that date in which to file a timely federal habeas petition. 28 U.S.C. § 2244(d) (1).
The applicable statute of limitations is tolled for "[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[.]" 28 U.S.C. § 2244(d) (2) (emphasis added). "[Aln 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) (internal citations and quotations omitted). A petitioner should be mindful that "once a deadline has expired, there is nothing left to toll." Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004); see also Alexander v. Sec'y, Dep't of Corr., S23 F.3d 1291, 1294 (11th Cir. 2008) (a state court motion for post-conviction relief cannot toll the federal limitations period if that period has already expired), abrogated on other grounds by Wall v. Kholi, 562 U.S. 545 (2011)
Clements's conviction became final on May 16, 2011, and he filed his state habeas corpus petition on April 18, 2012. By that time, 338 days of the statute of limitations period applicable to § 2254 petitions had elapsed. Clements's state habeas petition was denied on June 2, 2014, and he had until July 2, 2014 to file properly a notice of appeal in the Wheeler County Superior Court and an application for certificate of probable cause to appeal with the Georgia Supreme Court. O.C.G.A. § 9-14-52(b) ("If an unsuccessful petitioner desires to appeal, he must file a written application for a certificate of probable cause to appeal with the clerk of the Supreme Court within 30 days from the entry of the order denying him relief. The petitioner shall also file within the same period a notice of appeal with the clerk of the concerned superior court.")
Clements submitted his original application for a certificate of probable cause to appeal to the Georgia Supreme Court sometime in mid-June of 2014. The Georgia Supreme Court notified Clements by letter dated June 25, 2014 that he did not pay the filing costs or supply a sufficient pauper's affidavit along with his application. (Doc. No. 8, p. 6). If the original filing had been proper, Clements's application for a certificate of probable cause to appeal would have been timely pursuant to Georgia Supreme Court Rule 13. This Rule states that a document submitted by a pro se prisoner "shall be deemed filed on the date the prisoner delivers the document to prison officials for forwarding to the Supreme Court Clerk." GA. StJPR. CT. R. 13. However, the Georgia Supreme Court also requires that costs associated with filing a case with that court be paid at the time of the filing of the application. "The Clerk is prohibited from receiving or filing an application... unless the costs have been paid or sufficient evidence of indigency... is filed or contained in the appellate record." GA.SUPR. CT. R. 5, ¶ 2. Because Clements did not supply a sufficient pauper's affidavit with his original filing, the Georgia Supreme Court did not deem Clements's application acceptable until it was filed again on July 11, 2014. (Doc. No. 5-4). The Georgia Supreme Court has noted that "nothing in O.C.G.A. § 9-14-52 excuses compliance by a pro se petitioner with all of the requirements for invoking this Court's jurisdiction over an appeal from an adverse order[.]" Fuliwood v. Sivley, 517 S.E.2d 511, 516 (Ga. 1999). The Georgia Supreme Court also determined that:
the requirement that the unsuccessful petitioner timely apply for a certificate of probable cause is more than a procedural nicety related to securing appellate review of adverse judgments. Cases are not dismissed for failure to comply with procedural niceties, but only for failing to comply with jurisdictional prerequisites. Although an application for a certificate of probable cause was filed in this case, it was late. There is no legal distinction between the failure to file any application and the failure to file a timely application. In either event, there is a lack of compliance with the jurisdictional requirement of O.C.G.A. § 9-14-52(b). An appellant's strict adherence to statutorily mandated time limits has always been considered an absolute requirement to confer jurisdiction upon an appellate court. In habeas corpus cases, the General Assembly has determined that the unsuccessful petitioner must timely file both a notice of appeal and an application for a certificate of probable cause in order to invoke this Court's jurisdiction. This Court cannot denigrate the General Assembly's determination by considering either a timely notice of appeal or a timely application as a mere procedural nicety. By filing his notice of appeal timely, Fullwood may have substantially complied with one of the elements for obtaining appellate review, but he failed utterly to satisfy the equally mandatory requirement that he also file a timely application for a certificate of probable cause.
Id. at 514 (internal citations omitted)
Because Clements's certificate of probable cause to appeal was not "properly filed" on or before July 2, 2014, the statute of limitations period was not tolled while Clements's application remained pending (until September 18, 2014) Williams v. Crist, 230 F.Appx. 861, 865-66 (11th Cir. 2006) (citing Pace v. DiGuglielmo, 544 U.S. 408 (2005), and Wade v. Battle, 379 F.3d 1254, 1260 (11th Cir. 2004), for the proposition that state procedural rules govern whether a filing in the state court is properly filed). Because Clements's appeal of the denial of his state habeas corpus petition was not properly filed on or before July 2, 2014, the applicable statute of limitations period began running once again. Clements did not place his § 2554 petition in the prison mail system until July 31, 2014, which is deemed the date he filed his petition. From July 2, 2014 until July 31, 2014, 29 days ...