James Manuel Phillips, Jr. v. Warden (11th Cir. October 2018)

Section 2254 – A petitioner’s conviction becomes “final” for purposes of filing a motion under § 2254 when the petitioner misses a deadline for seeking review of his direct appeal in the state of conviction’s highest court.

Petitioner Phillips, who had been convicted and imprisoned in Georgia, filed a federal habeas corpus petition under 28 U.S.C. § 2254 that was dismissed by the district court on the ground that it was time-barred.

At issue was whether the one-year statute of limitations governing § 2254 petitions began running when Phillips missed his deadline for filing a petition for certiorari review from the Georgia Supreme Court or 90-days after the date the Georgia Supreme Court dismissed Phillips certiorari petition as time-barred.

Under Georgia Supreme Court Rule 38, a petitioner has 20 days from a Court of Appeals order to submit a certiorari petition to the Supreme Court. Phillips submitted his petition for certiorari two days after the 20-day deadline, which had been September 5, 2006. Accordingly, Georgia Supreme Court dismissed his petition as untimely and denied his subsequent motion for reconsideration in late 2006.

Five months after the 20-day deadline, Phillips filed a pro se state habeas petition, which was denied. The Georgia Supreme Court denied Phillips’s application for certificate of probable cause and then denied his subsequent motion for reconsideration in July 2008.

In June 2009, almost eleven months after Phillips’ state habeas proceedings had concluded, Phillips filed his § 2254 motion in the district court. The district court dismissed Phillips’ motion as time-barred because, though the state habeas proceedings had tolled the one-year statute of limitations, the statute had begun running on September 5, 2006, the deadline for Phillips to file a petition for certiorari with the Georgia Supreme Court. Therefore, the court held, the “untolled periods of time amounted to more than one year.”

Had the statute of limitations started running 90 days after the Supreme Court dismissed Phillips untimely petition, Phillips’ § 2254 motion would not have been time-barred. Phillips therefore argued that his conviction was not “final” until 90 days after the Supreme Court denied his petition for certiorari as untimely, citing Georgia Supreme Court Rule 13.1, which allows a petition for certiorari to be filed 90 days “after entry of the order denying discretionary review.” Phillips argued that the Georgia Supreme Court’s dismissal of his untimely petition was an “order denying discretionary review.”

On appeal, the Eleventh Circuit rejected Phillips’ argument and agreed with the district court that the statute of limitations began running when Phillips missed his deadline to file a certiorari petition. 28 U.S.C. § 2244(d)(1) specifies that a petitioner’s conviction becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.”

The Court held that Phillip fell under the latter category of people—since his petition was untimely, he essentially “did not pursue direct review all the way to the Supreme Court.” And since the Georgia Supreme Court was the highest court where he could seek review, his conviction became final when “the time for seeking such review” expired.

Appeal from the Northern District of Georgia

Opinion by J. Carnes, joined by Rosenbaum and Schlesinger (by designation from M.D. Fla.)

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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