James Manuel Phillips, Jr. v. Warden, 908 F.3d 667

In 2000 Phillips was convicted in Georgia of child molestation; the Georgia Court of Appeals affirmed that conviction and denied reconsideration in August 2006.
Under Ga. Sup. Ct. R. 38, Phillips had 20 days (until Sept. 5, 2006) to file a certiorari petition in the Georgia Supreme Court; he filed on Sept. 7, 2006 and the Georgia Supreme Court dismissed the petition as untimely on Nov. 6, 2006 and denied reconsideration on Dec. 15, 2006.
Phillips filed a state habeas petition on Feb. 12, 2007; the state habeas process concluded on July 25, 2008 when the Georgia Supreme Court denied reconsideration of the denial of a certificate of probable cause.
Phillips filed a federal § 2254 petition on June 29, 2009; the State moved to dismiss as time-barred under AEDPA’s one-year limitations period.
The district court adopted R&Rs concluding Phillips’s conviction became final on Sept. 5, 2006 (the deadline to file certiorari in Georgia), denied equitable tolling, and dismissed the § 2254 petition as untimely; a COA was later granted solely on whether finality began on Sept. 5, 2006 or 90 days after the Georgia Supreme Court dismissed the untimely cert petition.
The Eleventh Circuit affirmed, holding finality occurred when the time to seek review in the state court expired (Sept. 5, 2006), so Phillips’s federal petition was filed after AEDPA’s one-year period (even accounting for tolling during state habeas).

Issue	Plaintiff's Argument	Defendant's Argument	Held
When did conviction become "final" under 28 U.S.C. § 2244(d)(1)(A)?	Phillips: final when 90 days after Georgia Supreme Court dismissed his untimely certiorari petition (i.e., date to seek U.S. Supreme Court review).	State: final when time to seek certiorari in Georgia expired (Sept. 5, 2006) because Phillips failed to timely seek available state review.	Held: Finality occurred on Sept. 5, 2006 — the expiration of time to seek review in the Georgia Supreme Court.
Equitable tolling / ability to seek U.S. Supreme Court review	Phillips: dismissal of his untimely state cert petition should trigger the 90-day period to seek certiorari to the U.S. Supreme Court; alternatively equitable tolling because State impeded timely filing.	State: dismissal for untimeliness did not afford a new right to seek U.S. Supreme Court review; no basis for equitable tolling.	Held: No entitlement to an additional 90-day period to seek U.S. Supreme Court review because he was not entitled to file certiorari; equitable tolling not warranted.

Gonzalez v. Thaler, 565 U.S. 134 (conviction becomes final at conclusion of direct review or expiration of time for seeking such review)
Holland v. Florida, 560 U.S. 631 (AEDPA limitations period is subject to equitable tolling in appropriate cases)
Jimenez v. Quarterman, 555 U.S. 113 (out-of-time state appeal can restore pendency of direct review for AEDPA purposes)
Butler v. Cain, 533 F.3d 314 (conviction became final when petitioner missed state deadline, not when state supreme court later dismissed appeal as untimely)
Pugh v. Smith, 465 F.3d 1295 (petitioner not entitled to petition SCOTUS for certiorari unless he first sought review in highest state court able to decide merits)
Dolphy v. Warden, Cent. State Prison, 823 F.3d 1342 (standard of review for AEDPA time-bar determinations)
Cadet v. Florida Dep’t of Corr., 853 F.3d 1216 (review standards for legal and factual determinations on AEDPA limitations)
American Railway Express Co. v. Levee, 263 U.S. 19 (discussed in context of Supreme Court certiorari jurisdiction)