Jason Quinard Bailey v. Hays State Prison, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11874
Non-Argument Calendar
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D. C. Docket No. 1:19-cv-04544-ELR
JASON QUINARD BAILEY,
Petitioner - Appellant,
versus
HAYS STATE PRISON,
WARDEN,
Respondents - Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 6, 2021)
Before MARTIN, ROSENBAUM, and BRANCH, Circuit Judges.
PER CURIAM:
Jason Bailey, proceeding pro se, appeals the district court’s order dismissing
his 28 U.S.C. § 2254 petition as untimely. On appeal, the state concedes that
Bailey’s § 2254 petition is timely and that the case should be remanded for
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consideration of the merits. Based on that concession, Bailey has filed a motion for
“summary judgment” requesting that we vacate the dismissal of his petition as
untimely. After careful review, we reverse the dismissal of Bailey’s petition as
untimely and remand for further proceedings.
I.
In September 2019, Bailey, a Georgia state prisoner, filed pro se a § 2254
federal habeas corpus petition. The state moved to dismiss the petition as untimely,
contending that Bailey had failed to file a federal petition or a state collateral attack
within one year of the date his convictions became final in November 2017, because
he did not file a state habeas corpus petition until December 2018. Bailey countered
that he mailed his state habeas petition in October 2018, and that the prison mailbox
rule should apply to make his filing timely.
The district court initially denied the state’s motion to dismiss, relying on the
prison mailbox rule. But it subsequently granted the state’s motion for
reconsideration and dismissed Bailey’s § 2254 petition as untimely, finding that the
prison mailbox rule did not apply to Bailey’s state habeas filing based on Georgia
Supreme Court precedent. See Roberts v. Cooper, 691 S.E.2d 875, 876 (Ga. 2010)
(holding that the prison mailbox rule does not apply to an initial state habeas
petition).
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Bailey timely filed a notice of appeal and also moved for reconsideration of
the judgment, asserting for the first time that he had filed two timely motions to
modify his sentence in October 2017 and December 2017, which were denied in
January 2018. Bailey contended that, therefore, his one-year limitation period did
not end until January 2019, making his federal habeas petition timely regardless of
the prison mailbox rule.
The district court issued an order finding that Bailey’s federal habeas petition
would still be untimely despite his timely motions to modify his sentence, but it
granted a certificate of appeal (“COA”) on the issue of whether Bailey was entitled
to rely on the prison mailbox rule to make his federal habeas petition timely.1 Bailey
filed a notice of appeal of that order and moved for reconsideration, asserting that
the two motions to modify, when combined with his state habeas petition, rendered
his § 2254 petition timely. In response, the district court recognized that Bailey may
be correct but that it was divested of jurisdiction to resolve that issue because of this
appeal.
1 After the district court issued this COA, we remanded the appeal so the district court
could include “what constitutional issue jurists of reason would find debatable” under Spencer v.
United States, 773 F.3d 1132, 1138 (11th Cir. 2014). On remand, the district court identified a
qualifying constitutional issue and once again granted Bailey a certificate of appeal on whether the
prison mailbox rule applied to his Georgia habeas filings.
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II.
On appeal, the state maintains that the district court properly declined to apply
the prison mailbox rule when determining the operative filing date for Bailey’s state
habeas petition. However, it concedes that Bailey is correct that the motions to
modify his sentence were tolling motions and that they “rendered his federal petition
timely when added to the tolling provided by his state habeas corpus petition.” We
need not consider whether the prison mailbox rule applies because, even assuming
it does not, we agree with the parties that the § 2254 petition is timely.2
We review de novo a district court’s dismissal of a habeas corpus petition as
untimely. Morris v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1351, 1353 (11th Cir. 2021).
Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), a one-year statute of limitations period that begins
to run on the latest of four triggering events governs § 2254 petitions for federal
habeas corpus. The relevant triggering event here is “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). And “a properly filed application
2 Although the COA granted by the district court was limited to the prison mailbox issue,
not to issues of timeliness more generally, “we may expand a COA sua sponte to include issues
that reasonable jurists would find . . . debatable.” Mays v. United States, 817 F.3d 728, 733 (11th
Cir. 2016) (quotation marks omitted). We conclude that expansion of the COA is clearly warranted
here because the state conceded for the first time on appeal that Bailey’s § 2254 petition was
timely, and the district court indicated that it would have reconsidered its timeliness ruling but for
this appeal.
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for State post-conviction or other collateral review” tolls the one-year limitation
period for filing a federal habeas petition. 28 U.S.C § 2244(d)(2). The Supreme
Court has held that “collateral review” in § 2244(d)(2) refers to “judicial review that
occurs in a proceeding outside of the direct review process.” Wall v. Kholi, 562 U.S.
545, 560 (2011).
Here, we agree with the parties that Bailey’s § 2254 petition is timely. It is
undisputed that Bailey’s convictions became “final” for AEDPA-limitations
purposes on November 29, 2017. In the state court, on October 2, 2017, and
December 22, 2017, Bailey filed two timely motions to modify his sentence, which
the state court denied on January 19, 2018. Neither motion is part of the record, but
the state concedes that these motions, which were denied on the merits by a state
judge after Bailey had already pursued direct criminal relief, tolled the limitations
period. We accept the state’s concession on this point, which is supported by the
available record evidence. See Wood v. Milyard, 566 U.S. 463, 474 (2012)
(explaining that courts should accept a state’s intentional concessions on AEDPA
statute of limitations issues).
Because a tolling motion was filed before Bailey’s convictions became
“final,” his one-year AEDPA limitations period began to run no earlier than January
19, 2018, when the tolling motion was denied. As a result, it is unnecessary to
determine whether the prison mailbox rule applied to Bailey’s Georgia habeas
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petition, because both filing dates—October 1, 2018, or December 5, 2018—fall
within the statute-of-limitations period. Thus, Bailey’s state habeas corpus petition
was timely filed and tolled the operation of the limitations period, rendering his
instant § 2254 petition timely. See § 2244(d)(2).
For these reasons, we reverse the dismissal of Bailey’s § 2254 petition as
untimely and remand for further proceedings consistent with this opinion.3
REVERSED AND REMANDED.
3 Bailey’s motions for oral argument and for summary judgment are DENIED as moot.
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