                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            JULY 1, 2009
                             No. 08-11121                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 05-00683-CV-BBM-1

GARY L. HAWES,



                                                          Petitioner-Appellant,

                                  versus

TONY HOWERTON, Warden,
PAROLE BOARD,
THURBERT E. BAKER,


                                                       Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                               (July 1, 2009)

Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:

       Gary Lee Hawes, a Georgia state prisoner proceeding pro se, appeals the

dismissal of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. After

review, we affirm.

       Hawes is serving a life sentence for murder, armed robbery, aggravated

assault and possession of a firearm during the commission of a felony. Hawes was

convicted in 1977 and paroled in 1993. On October 28, 1998, after a hearing, the

Georgia Board of Pardons and Paroles (“Parole Board”) revoked Hawes’s parole

for failing to carry out his parole officer’s instructions to participate in mental

health counseling and to maintain gainful employment. On the same date, the

Parole Board notified Hawes of the decision by letter.

       On March 5, 2005, Hawes filed this § 2254 petition challenging the

revocation of his parole. The district court dismissed the § 2254 petition as

successive and time-barred. We conclude that the district court correctly dismissed

Hawes’s § 2254 petition as barred by the one-year statute of limitations in the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214. Thus, we do not address the district court’s alternative

conclusion that Hawes’s § 2254 petition was successive.1


       1
       The certificate of appealability (“COA”) granted by the district court limited the issues
on appeal to whether a 2001 letter Hawes wrote to the district court was an initial federal habeas

                                                 2
       The AEDPA imposes a one-year statute of limitations on petitions filed

pursuant to § 2254. 28 U.S.C. § 2244(d)(1). When, as here, the petitioner is

challenging a parole board decision, the limitations period begins to run on “the

date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.” See Brown v. Barrow, 512

F.3d 1304, 1307 & n.1 (11th Cir. 2008) (citing 28 U.S.C. § 2244(d)(1)(D)).2

       Here, on October 28, 1998, the Parole Board revoked Hawes’s parole and

sent him a letter notifying him of the decision. Thus, Hawes’s deadline for filing a

federal habeas petition was October 28, 1999. See Brown, 512 F.3d at 1307-08

(concluding that, for a Georgia prisoner serving a life sentence, the AEDPA’s one-

year limitations period begins to run when the Parole Board’s decision is made and

that subsequent requests for reconsideration do “not affect the finality [of the

Parole Board’s decision] or otherwise toll the limitations period”). However,

Hawes’s § 2254 was not filed until March 5, 2005, over five years after the

limitations period expired. Thus, unless the one-year limitations period was tolled,



corpus petition and whether the instant § 2254 petition was either successive or time-barred.
Thus, we do not address the other arguments Hawes raises relating to the merits of his parole
revocation, which are outside the scope of the COA. See Murray v. United States, 145 F.3d
1249, 1250-51 (11th Cir. 1998).
       2
        We review de novo the district court’s determinations that a petition for federal habeas
corpus relief is time-barred under § 2244(d) and that the limitations period was not tolled. Steed
v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000).

                                                3
Hawes’s § 2254 petition was untimely.

       AEDPA’s limitations period is tolled for 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.” 28 U.S.C. § 2244(d)(2). However, “a

state court petition . . . that is filed following the expiration of the federal

limitations period cannot toll that period because there is no period remaining to be

tolled.” Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (quotation

omitted). Therefore, if a state habeas petition is properly filed more than one year

after the § 2244 statute of limitations began to run, a subsequent federal habeas

petition will be time-barred notwithstanding the properly filed state habeas

petition. Id.

       Hawes filed two possible tolling documents between the time that his parole

was revoked and his § 2254 petition was filed. First, on October 14, 2002, Hawes

filed a state habeas petition. Because the one-year limitations period already had

expired on October 28, 1999, Hawes’s state habeas petition did not toll the statute

of limitations. See 28 U.S.C. § 2244(d)(2); Tinker, 255 F.3d at 1333.

       Second, Hawes claims he filed a petition for a writ of mandamus with the

Fulton County Superior Court in either October 2001 or October 2002.3 The


       3
       Hawes’s objection to the magistrate judge’s report and recommendation stated that
Hawes filed his state mandamus petition in October 2001. However, Hawes’s motion for

                                              4
record does not contain a copy of Hawes’s mandamus petition. The only record

evidence pertaining to Hawes’s alleged petition for mandamus is a February 15,

2002 order by the Superior Court denying his request to file a mandamus petition

in forma pauperis. Specifically, the order states:

       Pursuant to O.C.G.A. Section 9-15-2 (d), the Court finds that the
       pleading has such a complete absence of any justiciable issue of fact
       or law that it cannot be reasonably believed that a court could grant
       relief. Accordingly, Petitioner’s request to file the pleading, in forma
       pauperis, is DENIED.

Thus, the record is silent as whether and when Hawes actually ever filed his state

mandamus petition and what its contents might have been.

       In his district court pleadings, Hawes stated that he mailed the state

mandamus petition and it was returned by the United States Postal Service in

March 2003 in an envelope “obviously not mailed from [the] court” and with a

handwritten notation “No Sender’s Address; Return to Sender.” According to

Hawes, the returned mandamus petition did not have a file number and had not

been served on the defendants.

       This Court has not yet addressed whether a state mandamus petition

challenging a Parole Board decision constitutes an “application for State post-

conviction or other collateral review” within the meaning of § 2244(d)(2). See



reconsideration stated that the state mandamus petition was filed in October 2002.

                                                5
Brown, 512 F.3d at 1308 n.2 (noting that “a properly filed state mandamus petition

would probably toll the limitations period,” but declining to address the question).

We need not reach the issue because Hawes has not presented any evidence that his

alleged mandamus petition was either “filed” or “properly filed” within the

AEDPA’s one-year limitations period that ended October 28, 1999. See Webster

v. Moore, 199 F.3d 1256, 1257-58 (11th Cir. 2000) (placing burden on habeas

petitioner to show post-conviction motions were properly filed and thus tolled

AEDPA’s limitations period under § 2244(d)(2)). Thus, Hawes has not shown that

his § 2254 petition is saved by the statutory tolling provision of § 2244(d)(2). For

these reasons, we affirm the district court’s dismissal of Hawes’s § 2254 petition as

time-barred.

      AFFIRMED.




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