This interlocutory appeal was permitted pursuant to 28 U.S.C. § 1292(b) (interlocutory review of an “order [that] may materially advance the ultimate termination of the litigation....”). Being reviewed is an order that the 28 U.S.C. § 2254 habeas petition of Carl Dewayne Watts, Mississippi prisoner # 18202, is timely. In that regard, at issue is whether the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year limitations period, 28 U.S.C. § 2244(d)(1), was tolled, under § 2244(d)(2), between the Mississippi Supreme Court’s denial of discretionary review and issuance of the mandate. (Watts has not filed a brief; that, of course, does not preclude our review. Schmidt v. Gray,
I.
On 29 November 2005, Watts pleaded guilty to transfer of a controlled substance and, that same day, was sentenced to 30 years’ imprisonment. His sentence was suspended, and he did not file a direct appeal. Therefore, his conviction became final on 29 December 2005.
In January 2006, the trial court found Watts had violated the terms of his sus
On 31 August 2006, Watts sought state habeas review. The trial court denied habeas relief on 12 April 2007, and Watts appealed. On 1 July 2008, by written opinion, the intermediate appellate court affirmed the trial court’s decision. Watts v. State,
Watts petitioned for review by the Mississippi Supreme Court. On 5 February 2009, such discretionary review was denied. In accordance with Mississippi Rule of Appellate Procedure 41(b), the mandate was issued on 26 February 2009, 21 days after that denial.
On 25 June 2009, proceeding pro se and pursuant to 28 U.S.C. § 2254, Watts applied for federal habeas relief. The State moved to dismiss Watts’ petition as time-barred, contending: the one-year limitations period began running on 29 December 2005, 30 days after his non-appealed conviction; that period was tolled from 31 August 2006, when he filed his state habeas petition, through 5 February 2009, when the Mississippi Supreme Court denied his petition for writ of certiorari, leaving 120 days to apply for federal habeas relief; and, therefore, his federal application had to have been filed no later than 5 June 2009.
After referral, a magistrate judge recommended Watts’ federal application was timely, recommending that the state habeas application was pending until 26 February 2009, when the mandate was issued by the appellate court. The district court adopted the magistrate judge’s report and recommendation. In a thorough opinion, it ruled that the tolling period extended until the mandate was issued, and, therefore, denied the State’s motion to dismiss. Watts v. Brewer, No. 10-60242,
Pursuant to 28 U.S.C. § 1292(b), the State requested an interlocutory appeal. The district court agreed, and our court allowed the State to appeal from the limitations ruling. Resolution in district court of Watts’ § 2254 application was, of course, stayed pending this interlocutory appeal.
II.
AEDPA’s one-year limitations period for applying for federal habeas relief, following a state-court judgment, 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”. 28 U.S.C. § 2244(d)(1)(A). That period is tolled, however, while a petitioner’s state post-conviction review “is pending”. 28 U.S.C. § 2244(d)(2); see Grooms v. Johnson,
At issue is whether the district court erred in ruling that Watts’ state habeas petition was pending until the issuance of the state appellate court’s mandate. Restated, we review whether the mandate’s issuance date is relevant in calculating the § 2244(d)(2) tolling period. The district court’s legal conclusions are reviewed de novo. E.g., Buntion v. Quarrterman,
A.
Watts’ petition was not stamped as “filed” until 1 July 2009. According to the prison mailbox rule however, “a pro se prisoner’s habeas petition is filed, for pur
Watts’ petition was signed as executed on 25 June 2009, and he provides additional evidence that he submitted the petition to prison officials that day. In the absence of any contrary evidence, the district judge assumed 25 June 2009 was the date Watts submitted his petition to prison officials for purposes of AEDPA’s limitations period. Although the State does not contest that finding, and asserts no evidence to the contrary, it suggests in its brief here that Watts’ petition was filed on 1 July 2009, i.e. his “habeas petition was filed 20 to 26 days beyond the ... limitations period”.
Whether Watts filed his § 2254 petition on 25 June, instead of 1 July, 2009 is of importance: as the district judge ruled, with the limitations period resuming after the mandate issued, in order to satisfy the one-year limitations period, Watts’ federal habeas petition had to be filed no later than 26 June 2009. Consequently, a 1 July 2009 filing would be untimely, regardless of the mandate’s significance vel non for calculating § 2244(d)(2)’s tolling period. Because the State failed to address this issue in its brief, we deem any 1 July-filing contention abandoned. E.g., United States v. Lopez-Velasquez,
B.
The State contends: AEDPA’s tolling period ended on 5 February 2009, when the Mississippi Supreme Court denied Watts’ petition for a writ of certiorari, and not on 26 February 2009, when the mandate issued. Our analysis of when the tolling period ended starts, of course, with the language in the statute. Windland v. Quarterman,
1.
In Carey v. Saffold,
Although our court in Windland evaluated AEDPA’s § 2244(d)(2) tolling provision, the focus was upon whether the tolling period encompassed the filing and decision dates for state habeas petitions; the relevance of the mandate was not in question.
Our understanding of AEDPA’s tolling provision is further informed by the Supreme Court’s 2007 decision in Lawrence. In an earlier proceeding, petitioner had sought Supreme Court review of the denial of his state habeas application. Review was denied. But, while that first petition was pending in the Supreme Court, petitioner applied for federal habeas relief. The application was denied as untimely. Following that ruling’s being upheld in circuit court, the Supreme Court addressed whether, pursuant to § 2244(d)(2), AEDPA’s limitations period was tolled during the pendency of the first petition for certiorari before the Court, following denial of the state habeas application. Lawrence,
The Court held it was not: Because the Court “is not a part of a ‘State’s post-conviction procedures’ ”, “[t]he application for state postconviction review is therefore not ‘pending’ [under § 2244(d)(2)] after the state court’s postconviction review is complete.... ” Id. at 332,
2.
Accordingly, § 2244(d)(2) requires us to consider state post-conviction procedures to determine, under Lawrence, when “state review end[ed]” in this instance. “While the present question requires us to apply the tolling provision of a federal statute, application of that provision ultimately rests on state-law procedural rules.” Evans v. Chavis,
Mississippi has a two-tiered appellate court system. All appeals are initially docketed with the Mississippi Supreme Court, where some appeals must be considered. Miss. RApp. P. 16(b). Many appeals, such as Watts’ habeas appeal, are, however, assigned to the Mississippi Court of Appeals. Miss.Code Ann. § 9-4-3.
Mississippi law provides for discretionary review (certiorari) by the Mississippi Supreme Court of Court of Appeals decisions; and “[a]t any time before final decision by the Court of Appeals, the Supreme Court may, by order, transfer to the Supreme Court any case pending before the Court of Appeals”. Id.; see also Cohen v. State,
Under Mississippi law, state appellate review becomes final on the date the mandate is issued. See Puckett v. State,
For example, Mississippi measures its three-year filing deadline for state habeas petitions “from the date the mandate was issued....” Bell v. State,
As another example, a motion for rehearing is relevant to tolling AEDPA’s limitations period, even if that motion is untimely. Our court has previously held, in the light of Supreme Court precedent, that “AEDPA’s one-year statute of limitations is tolled during the period in which a Texas habeas petitioner has filed ... a motion [for rehearing or reconsideration]”. Emerson,
Contrary to the State’s suggestion, Roberts v. Cockrell,
In determining when a judgment becomes “final” for purposes of subpart (d)(l)’s triggering provision, Roberts held AEDPA’s limitations period begins to run on the last day, under state law, that petitioner could seek direct review of the judgment. Roberts,
Gonzalez held Roberts had not been overruled by the Supreme Court’s above-discussed, intervening, 2007 decision in
Therefore, in the light of Mississippi law, AEDPA’s one-year limitations period was tolled until 26 February 2009, when the mandate was issued by the state appellate court. This was the date on which all state post-conviction procedures were complete.
Watts’ conviction became final on 29 December 2005. AEDPA’s one-year limitations period was tolled from 31 August 2006 to 26 February 2009, leaving 120 days for filing his § 2254 petition. The limitations period resumed on 27 February 2009, and Watts filed his federal petition on 25 June 2009-within those 120 days.
III.
For the foregoing reasons, the timely-filing order is AFFIRMED and this matter is REMANDED to district court for further proceedings.
Notes
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.