817 F.3d 751
11th Cir.2016Background
- Westmoreland filed a pro se federal habeas petition under 28 U.S.C. § 2254; the District Court dismissed it as untimely under the one-year limit in 28 U.S.C. § 2244(d)(1).
- Westmoreland had filed an extraordinary motion for new trial in Georgia state court on May 2, 2011 (filed more than 30 days after judgment), and repeatedly asked the state and the district court to include that motion in the federal record.
- The state repeatedly told the District Court it had supplied all exhibits "germane to" timeliness; the District Court decided without the extraordinary-motion record and dismissed the federal petition.
- On appeal, this Court granted a COA on whether a Georgia extraordinary motion for new trial tolls § 2244(d)(2), whether Westmoreland’s motion was properly filed, and whether dismissal was erroneous if the motion tolled the limitations period.
- The state conceded on appeal that the extraordinary motion tolled the federal limitations period and that Westmoreland’s § 2254 petition was timely; the Eleventh Circuit agreed and reversed and remanded.
- The Eleventh Circuit declined to resolve exhaustion, holding the District Court should address exhaustion, procedural default, and any Rhines stay issues on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Georgia extraordinary motion for new trial is an "application for State post-conviction or other collateral review" under § 2244(d)(2) | Westmoreland: such a motion is collateral review and tolls § 2244(d) | State: initially disputed; later conceded it tolls | Yes — a Georgia extraordinary motion can be an application for collateral review under § 2244(d)(2) |
| Whether Westmoreland properly filed the Georgia extraordinary motion so as to toll the federal limitations period | Westmoreland: motion was properly filed in state trial court on May 2, 2011 | State: previously withheld relevant records and contested timeliness but later conceded the filing | Yes — the motion was properly filed and tolled the clock while pending |
| Whether the tolling from the extraordinary motion plus subsequent state habeas filings made Westmoreland's § 2254 petition timely | Westmoreland: timeline (conviction final 10/25/2010; extraordinary motion 5/2/2011; denial 6/9/2011; appeal period to 7/9/2011; state habeas 10/28/2011) results in federal petition timely filed on 5/1/2014 while state habeas pending | State: initially argued untimeliness; later conceded petition was timely | Yes — calculation shows federal petition was within the one-year period and tolled while state proceedings were pending |
| Whether appellate court should decide exhaustion now | Westmoreland: COA limited to timeliness; exhaustion should be decided on remand | State: invited affirmance based on exhaustion failure | No — court will not address exhaustion; remand for district court to decide exhaustion, procedural default, and any stay request under Rhines |
Key Cases Cited
- Day v. Hall, 528 F.3d 1315 (11th Cir.) (per curiam) (standard of de novo review for timeliness dismissals)
- Wall v. Kholi, 562 U.S. 545 (2011) (defining "application" for collateral review as a proceeding outside direct review)
- Artuz v. Bennett, 531 U.S. 4 (2000) (definition of "properly filed" for tolling under § 2244(d)(2))
- Cramer v. Sec'y, Dep't of Corr., 461 F.3d 1380 (11th Cir.) (per curiam) (tolling continues through time to appeal a state collateral denial)
- Mize v. Hall, 532 F.3d 1184 (11th Cir.) (characterizing Georgia extraordinary motion as "in the nature of a collateral proceeding")
- Thomas v. State, 727 S.E.2d 123 (Ga. 2012) (Georgia Supreme Court describing extraordinary motion as a post-direct-appeal challenge)
- Rhines v. Weber, 544 U.S. 269 (2005) (stay-and-abeyance framework for mixed habeas petitions)