           Case: 15-13392   Date Filed: 05/24/2016   Page: 1 of 6


                                                                    [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13392
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:15-cv-00103-WBH



DARRELL DOLPHY,

                                                          Petitioner-Appellant,

                                 versus

WARDEN, CENTRAL STATE PRISON,

                                                         Respondent-Appellee.

                      ________________________

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

                             (May 24, 2016)

Before WILSON, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:
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       Darrell Dolphy, a Georgia prisoner, appeals the district court’s dismissal of

his 28 U.S.C. § 2254 federal habeas petition. The district court found that the

petition was untimely filed under the one-year statute of limitations established by

the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28

U.S.C. § 2244(d)(1). Whether Dolphy’s petition was timely turns on when his

state habeas proceedings stopped “pending” for purposes of AEDPA’s tolling

provision, 28 U.S.C. § 2244(d)(2). The district court concluded that those

proceedings became complete once the Georgia Supreme Court denied Dolphy’s

application for a certificate of probable cause and the period for seeking

reconsideration of that denial lapsed. However, Dolphy argues that his

proceedings were pending until the Georgia Supreme Court issued the remittitur

for the denial. We agree with Dolphy. Accordingly, we reverse and remand. 1

                                    I.     BACKGROUND

       Dolphy filed a state habeas petition 280 days after his convictions became

final. The state superior court rejected the petition, and Dolphy timely sought

review by the Georgia Supreme Court, applying for a certificate of probable cause.

The Court denied the application. Dolphy then had 10 days to seek reconsideration

of the denial, but he did not do so. Eighteen days after that 10-day period expired,

       1
         Because reversal is warranted based on our conclusion that Dolphy’s state habeas
proceedings were pending until the Georgia Supreme Court issued the remittitur for its denial of
his request for a certificate of probable cause, we need not address the other “timeliness”
arguments that he raises on appeal.
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the Court issued the remittitur for its denial of Dolphy’s application.2 Dolphy filed

his § 2254 petition 84 days after the Court issued the remittitur. In considering

Dolphy’s petition, the district court found that his state habeas proceedings tolled

his AEDPA one-year statute of limitations. However, the court determined that

those proceedings became complete once Dolphy’s 10-day reconsideration period

expired. Therefore, it held that Dolphy filed his § 2254 petition 17 days after the

one-year statute of limitations lapsed.

                                    II.    DISCUSSION

       We review de novo the district court’s determination that Dolphy’s § 2254

petition was time barred under § 2244(d). Bridges v. Johnson, 284 F.3d 1201,

1202 (11th Cir. 2002).

       Under AEDPA, prisoners like Dolphy have one year from when their

convictions become final to file a § 2254 petition. See 28 U.S.C. § 2244(d)(1)(A).

This one-year statute of limitations is subject to tolling while “a properly filed

application for [s]tate post-conviction” relief is “pending.” See id. § 2244(d)(2).

Until a state habeas petition “has achieved final resolution through the [s]tate’s

post-conviction procedures, by definition it remains ‘pending.’” Carey v. Safford,

536 U.S. 214, 219–20, 122 S. Ct. 2134, 2138 (2002); see also Holland v. Florida,


       2
        The Georgia Supreme Court must transmit a remittitur to the court from which the case
was received “as soon as practicable after the expiration of 10 days after the entry of the
judgment or upon the denial of a motion for reconsideration.” Ga. R. S. Ct. 60.
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560 U.S. 631, 635, 638, 130 S. Ct. 2549, 2554, 2556 (2010) (concluding that the

one-year statute of limitations “clock again began to tick” when the state supreme

court issued its mandate because, at that time, its decision on the petitioner’s

habeas petition became final). Hence, the one-year statute of limitations for filing

a § 2254 petition is tolled “as long as the [petitioner’s] ordinary state collateral

review process is ‘in continuance’—i.e., ‘until the completion of’ that process.”

Carey, 536 U.S. at 219–20, 122 S. Ct. at 2138.

      Here, we must determine when Dolphy’s state habeas proceedings became

complete. If his proceedings were final 10 days after the Georgia Supreme Court

decided to deny his request for a certificate of probable cause, then—as the district

court found—he filed his § 2254 petition 17 days after his one-year statute of

limitations lapsed. On the other hand, if the proceedings did not become complete

until the Georgia Supreme Court issued the remittitur for the denial, then Dolphy

filed his § 2254 petition one day before his limitations period lapsed.

      To determine the point at which a petitioner’s state habeas proceedings

become complete, we look to the state’s procedural rules. See Wade v. Battle, 379

F.3d 1254, 1260–62 (11th Cir. 2004) (per curiam). In Georgia, after a superior

court denies a petitioner’s state habeas petition, the petitioner must obtain a

certificate of probable cause to appeal the denial to the Georgia Supreme Court.

See O.C.G.A. § 9-14-52(a). In other words, the Court’s decision to deny an


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application for a certificate of probable cause disposes of the petitioner’s habeas

proceedings. See id. Thus, once such a decision becomes final, the petitioner’s

proceedings are complete. This occurs when the remittitur for the decision is

transmitted. A Georgia Supreme Court “decision is amendable during the term of

rendition and therefore not final until the remittitur is transmitted.” See Radford v.

State, 233 S.E.2d 785, 786 (Ga. 1977); Ramsey v. State, 92 S.E.2d 866, 869 (Ga.

1956) (“[D]uring the time before the remittitur is transmitted, this [C]ourt may

alter, amend, or set aside its judgments.”); Atkins v. Estate of Callaway, 763 S.E.2d

369, 371 (Ga. Ct. App. 2014) (“Until the remittitur is issued, the direct appeal is

still pending.”).

      Accordingly, when a state habeas petitioner seeks a certificate of probable

cause from the Georgia Supreme Court and the Court denies the request, the

petitioner’s case becomes complete when the Court issues the remittitur for the

denial. See O.C.G.A. § 9-14-52(a); Radford, 233 S.E.2d at 786; Ramsey, 92

S.E.2d at 869; Atkins, 763 S.E.2d at 371. This means that the case remains

pending—and tolled—under § 2244(d)(2) until the Court issues the remittitur. See

Carey, 536 U.S. at 219–20, 122 S. Ct. at 2138.

      As noted above, Dolphy filed his state habeas petition 280 days after his

convictions became final, tolling his one-year statute of limitations. He then filed

his § 2254 petition 84 days after that tolling period ended. That is to say, he filed


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the petition 84 days after the Georgia Supreme Court issued the remittitur for its

denial of his request for a certificate of probable cause. As such, only 364 days

lapsed on Dolphy’s one-year statute of limitations, and his petition was timely, see

28 U.S.C. § 2244(d)(1).

                                III.   CONCLUSION

      We hold that, for purposes of § 2244(d)(2), when the Georgia Supreme

Court denies a state habeas petitioner’s application for a certificate of probable

cause, the petitioner’s proceedings remain “pending” until the Court issues the

remittitur for the denial. Applying this holding to Dolphy, his § 2254 petition was

timely.

      REVERSED AND REMANDED.




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