Sallie v. Humphrey
| Decision Date | 09 June 2011 |
| Docket Number | Civil Action No. 5:11–CV–75 (MTT). |
| Citation | 789 F.Supp.2d 1351 |
| Parties | William Cary SALLIE, Petitionerv.Carl HUMPHREY, Warden, Respondent. |
| Court | U.S. District Court — Middle District of Georgia |
OPINION TEXT STARTS HERE
Brian S. Kammer, Kirsten Salchow, Atlanta, GA, Joseph John Perkovich, Church Street Station, New York, NY, for Petitioner.Beth Attaway Burton, Richard Tangum, Office of the Attorney General, Atlanta, GA, for Respondent.
Before the Court is Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus as Untimely. The Court agrees that Petitioner William Cary Sallie did not timely file his petition. However, the petition is not subject to dismissal because further development of the record is necessary to resolve Sallie's claim that he is entitled to equitable tolling of the statute of limitations.
I. PROCEDURAL HISTORY
On March 30, 1991, a jury convicted Petitioner William Cary Sallie of malice murder, burglary, aggravated assault, two counts of kidnaping with bodily injury, and possession of a firearm during the commission of a felony. Sallie v. State, 269 Ga. 446, 446 n. 1, 499 S.E.2d 897, 898 n. 1 (1998). The jury recommended death for the murder conviction and the trial court imposed a life sentence for each kidnaping count, twenty years for burglary, twenty years for aggravated assault, and five years for possession of a firearm during the commission of a felony. Id. The Georgia Supreme Court reversed Sallie's convictions because “one of Sallie's trial lawyers was laboring under a conflict of interest” and remanded the case for a new trial. Id. at 446, 499 S.E.2d 897.
On June 26, 2000, a grand jury again indicted Sallie, this time for malice murder, felony murder, burglary, aggravated assault, two counts of kidnaping with bodily injury, and possession of a firearm during the commission of a felony. Sallie v. State, 276 Ga. 506, 506 n. 2, 578 S.E.2d 444, 448 n. 2 (2003). After a change of venue to Houston County, a jury again found Sally guilty and recommended a sentence of death for the malice murder on March 5, 2001. Id.
On April 3, 2001, Sallie filed a motion for new trial, which was denied on June 17, 2002. (Doc. 8, at 1). The Georgia Supreme Court affirmed Sallie's conviction and sentence on March 24, 2003. Sallie, 276 Ga. at 506, 578 S.E.2d at 448.
Sallie filed a petition for certiorari in the United States Supreme Court, which was denied on October 6, 2003. Sallie v. Georgia, 540 U.S. 902, 124 S.Ct. 251, 157 L.Ed.2d 185 (2003). Sallie petitioned for rehearing, and that petition was denied on December 8, 2003. Sallie v. Georgia, 540 U.S. 1086, 124 S.Ct. 954, 157 L.Ed.2d 767 (2003). On December 10, 2003, the Georgia Supreme Court transmitted the remittitur to the trial court. (Doc. 8, at 1).
Sallie filed his state habeas corpus petition in the Superior Court of Butts County on October 14, 2004. (Doc. 8, at 2). Following an evidentiary hearing, the Court denied the petition on June 29, 2009. (Doc. 9, at 4). On January 14, 2011, the Georgia Supreme Court denied Sallie's Application for Certificate of Probable Cause to Appeal. (Doc. 9, at 4).
Sallie filed his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 in this Court on February 28, 2011. (Doc. 1).
II. DISCUSSIONA. The statute of limitations under 28 U.S.C. § 2244(d)
The Antiterrorism and Effective Death Penalty Act (AEDPA) “imposes a one-year statute of limitations on all federal habeas corpus petitions.” San Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir.2011). The relevant provisions of 28 U.S.C. § 2244(d) are:
(1) 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. The limitation period shall run from the latest of—
(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;
....
(2) 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 shall not be counted toward any period of limitation under this subsection.
The Respondent argues that under the clear language of the statute, a state court judgment becomes final, for AEDPA purposes, upon “the conclusion of direct review,” which, in this case, was October 6, 2003, the date the United States Supreme Court denied Sallie's petition for certiorari. Because Sallie did not file by October 6, 2004,1 either a federal petition for writ of habeas corpus or an “application for State post-conviction” relief, which would have tolled the statute of limitations, he cannot now seek federal habeas relief. 28 U.S.C. § 2244(d)(2).
Sallie responds that Georgia law determines when a state court judgment becomes final for purposes of 28 U.S.C. § 2254, and, under Georgia law, his conviction became final only when the trial court received the remittitur on December 10, 2003. Because AEDPA's clock did not start until December 10, 2003, Sallie argues that his October 14, 2004 state habeas petition tolled AEDPA's statute of limitations, leaving him 57 days under AEDPA. Therefore, he timely filed his federal habeas petition on February 28, 2011, 45 days after his state habeas action concluded and well within the time remaining under AEDPA.
In the alternative, Sallie contends that the State of Georgia created an impediment to the filing of his federal petition and, pursuant to § 2244(d)(1)(B), AEDPA's clock did not start until that impediment was removed. This argument is also based on Georgia's final judgment rule. Sallie contends he could not file his federal habeas petition until he had exhausted his state court remedies, and he could not file his state habeas petition to pursue those remedies until the remittitur had been returned to the trial court. In other words, Georgia's final judgment rule prevented him from filing his state habeas petition until December 10, 2003, the date the trial court received the remittitur. Thus, before December 10, 2003, Sallie could not file his state court habeas petition to toll AEDPA's statute of limitations. Nor could he file his federal petition because he had not exhausted his state court remedies. Thus, Sallie contends, the State of Georgia effectively created an unconstitutional impediment to the filing of his federal habeas petition, an impediment that was not removed until December 10, 2003 when his conviction became final under Georgia law. Therefore, pursuant to 28 U.S.C. § 2244(d)(1)(B), the one-year statute of limitations did not begin to run until December 10, 2003, and his October 6, 2004 state habeas petition tolled AEDPA's statute of limitations.
Sallie's contention that a Georgia state court conviction is not final until the remittitur has been returned to the trial court is based upon his interpretation of the Georgia Supreme Court's decision in Horton v. Wilkes, 250 Ga. 902, 302 S.E.2d 94 (1983), an interpretation which Respondent does not dispute. However, it is at least debatable whether Sallie reads Horton properly.
In Horton, the petitioner filed his petition for writ of habeas corpus on December 30, 1982 to avoid the application of changes in Georgia's habeas corpus law that were to become effective January 1, 1983. However, when Horton filed his habeas petition, the United States Supreme Court had not yet ruled on Horton's petition for certiorari. Accordingly, the Respondent moved to dismiss the petition on the grounds that the conviction was not final and therefore the petition had been prematurely filed. Because the Supreme Court had not ruled on the petition for certiorari, Horton's case was still in direct review, and thus his habeas petition was premature under any meaning of final judgment. However, in affirming the trial court's dismissal of the petition, the Georgia Supreme Court stated that “the judgment is not final until the judgment of this court is made the judgment of the trial court.” Id. at 903, 302 S.E.2d at 96 (emphasis added). The court did not say directly that judgments become final only upon the return of the remittitur and the authority cited by the court, Twilley v. Twilley, 195 Ga. 297, 298, 24 S.E.2d 46 (1943), sheds no further light on the matter.
No case, state or federal, has cited Horton for the proposition that judgments become final only upon the return of the remittitur, and the Respondent provides some evidence that practitioners in capital cases do not recognize this rule of finality. Presumably, Sallie would argue that “until the judgment of this court is made the judgment of the trial court” could only mean when the remittitur is returned to the trial court, and that argument would have some logic. Still, this interpretation is not essential to the Georgia Supreme Court's holding; again, under any interpretation of the meaning of final judgment, Horton filed his habeas petition before his judgment of conviction became final. Nevertheless, it is not unreasonable to read Horton to mean that convictions become final only when the remittitur is returned to the trial court.
Assuming, without deciding, that Sallie's reading of Horton is correct, the resolution of whether this action was timely filed turns on whether this Court should apply Georgia law to determine when Sallie's conviction became final. Sallie cites Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009) and Tinker v. Moore, 255 F.3d 1331 (11th Cir.2001) for the proposition that “Georgia law is dispositive as to the meaning of finality of judgment...
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...writ and, when the petitioner did receive notice, waited an additional two months before filing for habeas relief); Sallie v. Humphrey, 789 F.Supp.2d 1351 (M.D. Ga. 2011) (state procedural rule did not "prevent" petitioner from timely filing his petition for federal habeas relief). Even if ......
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...Eleventh Circuit case: Tinker v. Moore, 255 F.3d 1331 (11th Cir. 2001). See Doc. 11 at 2 n.1. As recognized in Sallie v. Humphrey, 789 F. Supp. 2d 1351, 1354-57 (M.D. Ga. 2011), Tinker is distinguishable, and it was decided before the United States Supreme Court's decision in Clay, 537 U.S.......