                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             JUNE 24, 2008
                              No. 07-11247
                                                           THOMAS K. KAHN
                          Non-Argument Calendar
                                                               CLERK
                        ________________________

                   D. C. Docket No. 06-02853-CV-JEC-1

ROBERT MARVIN POWLES,

                                                    Petitioner-Appellant,

                                    versus

WARDEN PAUL THOMPSON,
THURBERT BAKER,
Attorney General of the State
of Georgia,


                                                    Respondents-Appellees.

                        ________________________

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

                                (June 24, 2008)

Before BLACK, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
      Robert Marvin Powles, a Georgia state prisoner proceeding pro se, appeals

the district court’s dismissal of his habeas petition, 28 U.S.C. § 2254 as time-

barred under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996). Because the mailbox rule

applied to Powles’s state habeas filings, we conclude the federal petition was

timely filed and accordingly, we vacate and remand for further proceedings.

      Powles is serving a term of fifty-five years imprisonment following his 2000

conviction for aggravated assault, drug trafficking, and possession of a firearm.

Powles filed a direct appeal, which the Georgia Court of Appeals denied on

February 8, 2001. Powles v. State, 545 S.E.2d 153 (Ga. Ct. App. 2001). Powles

did not file a petition for cert. with the Georgia Supreme Court. Thereafter, Powles

filed state motions seeking to compel corrections in the trial transcripts; the

motions were denied. Powles filed his state habeas petition on February 18, 2002.

On April 19, 2006, the state court denied relief, and the Georgia Supreme Court

denied a certificate of probable cause to appeal on October 31, 2006. While the

state petition was pending, Powles filed a federal habeas petition, which was

dismissed without prejudice.

      On November 14, 2006, Powles signed the instant § 2254 petition and

delivered it to prison authorities for mailing. The magistrate judge sua sponte



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recommended that the petition be dismissed as untimely because more than one-

year had expired since the conviction became final under 28 U.S.C. § 2244(d)(1).

According to the magistrate judge, the time period began to run on February 18,

2001, which was ten days after the conviction was affirmed on direct appeal and

signified the expiration of the time in which to file for cert. review in the state

supreme court. The time ran until February 18, 2002 when Powles filed his state

habeas petition. It then tolled until the state petition was denied and the state

supreme court decline to issue a certificate of probable cause to appeal on October

31, 2006. The magistrate judge determined that, had Powles filed his petition on

that date, it would have been timely filed. Powles, however, did not file the federal

petition until November 14, 2006. The magistrate judge noted that none of the

other state motions Powles filed would have tolled the limitations period. The

magistrate judge further concluded that the limitations period would not toll during

the time it took for Powles to learn of the court’s decisions.

      Powles objected to the recommendation, arguing that the limitations did not

begin to run until February 26, 2001 and tolled when he placed his state habeas

petition in the prison mail services on February 4, 2002, and that he was not

notified of the state supreme court’s denial of review until November 3, 2006. He

thus claimed that he had eleven days remaining in the limitations period when he



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filed his federal petition on November 14, 2006.

      The district court considered Powles’s arguments, but adopted the magistrate

judge’s recommendation and dismissed the petition as time-barred. Powles

requested a certificate of appealability (“COA”) on the timeliness determination

and the merits of his § 2254 petition. The district court granted the COA without

specifying the issues.

      “This court reviews de novo the district court’s determination that the

petition for federal habeas corpus relief was time-barred under the AEDPA.”

Moore v. Crosby, 321 F.3d 1377, 1379 (11th Cir. 2003). The AEDPA imposes a

one-year statute of limitations on petitions for writs of habeas corpus. In particular,

28 U.S.C. § 2244(d)(1) provides “[a] 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court.” 28 U.S.C. § 2244(d)(1). Relevant to this case, the

limitation period runs from, “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

Id. § 2244(d)(1)(A). The one-year statute of limitations set forth in § 2244 is tolled

when a state prisoner properly files an application for post-conviction or collateral

review with the state and such application is pending. 28 U.S.C. § 2244(d)(2)

(emphasis added). The Supreme Court has determined that “an application is



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‘properly filed’ when its delivery and acceptance are in compliance with the

applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121

S.Ct. 361, 364, 148 L.Ed.2d 213 (2000) (emphasis in original). An untimely

application is not properly filed, and thus does not toll the limitations period.

Wade v. Battle, 379 F.3d 1254, 1262 (11th Cir. 2004).

      At issue in this case is whether the mailbox rule applies to state habeas

petitions. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245

(1988). If so, Powles’s petition was filed on February 4, 2002, and the time tolled

until the state denied relief on October 31, 2006, and then ran for an additional

fourteen days until the § 2254 petition was filed. Under that scenario, a total of

364 days expired. If the mailbox rule does not apply, and the petition was filed on

February 18, 2002, the petition was untimely.

      The outcome of this case is dictated by this court’s recent decision in Taylor

v. Williams, No. 07-10453 (11th Cir. May 23, 2008), in which this court concluded

that the mailbox rule applied to a prisoner’s state habeas petition. Because the

mailbox rule applied, Powles’s petition was timely filed. Accordingly, we

VACATE and REMAND with instructions for the district court to consider the

merits of Powles’s habeas petition. Powles’s pending motion for reconsideration is

denied as moot.



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