FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 23, 2008

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

_____________

No. 07-10453

_____________

D.C. Docket No. 05-00062 CV-JTC-3

JOHNEL EDWARD TAYLOR,

Petitioner-Appellant,

versus

WARDEN ROSE WILLIAMS, 

Respondent-Appellee. 

__________________________

Appeal from the United States District Court 

for the Northern District of Georgia

__________________________

(May 23, 2008)

Before TJOFLAT, ANDERSON and COX, Circuit Judges. 

TJOFLAT, Circuit Judge:

The petitioner, Johnel Edward Taylor, is serving sentences in a Georgia
 28 U.S.C. § 2254(a) provides that: 1

[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall

entertain an application for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.

 28 U.S.C. § 2244(d)(1) states, in pertinent part:

2

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 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 . . . .

2

prison for murder and possession of a firearm. On July 8, 2005, he challenged the

constitutional validity of his convictions in a petition for a writ of habeas corpus

filed with the United States District Court for the Northern District of Georgia

pursuant to 28 U.S.C. § 2254. On October 26, 2006, the district court denied the

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writ as time-barred by the one-year statute of limitations created by the AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §

2244(d)(1). He thereafter filed a timely notice of appeal, and we granted his

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application for a certificate of appealability (“COA”) as to one issue: whether the

district court erred when it found that the Georgia procedural rule, which deems a

petition for post-conviction relief filed when it is received and marked as filed by

the clerk of the petitioned court, governs the date when AEDPA’s one-year

limitations period is tolled. 
3

I.

On December 1, 1998, a Spalding County Superior Court jury found Taylor

guilty of felony murder and possession of a firearm during the commission of a

crime. The superior court thereafter sentenced him to life imprisonment on the

murder charge and a consecutive five-year term for the firearm possession offense. 

His convictions and sentences were affirmed by the Georgia Supreme Court on

July 5, 2000. Taylor v. State, 532 S.E.2d 395 (Ga. 2000). Taylor did not move the

court for a rehearing or seek a writ of certiorari from the United States Supreme

Court. Accordingly, his convictions became final on October 3, 2000. See Sup.

Ct. R. 13 (“[A] petition for a writ of certiorari to review a judgment in any case,

civil or criminal, entered by a state court of last resort . . . is timely when it is filed

with the Clerk of this Court within 90 days after entry of judgment.”); Bond v.

Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that AEDPA’s statute of

limitations does not begin to run until the 90-day window for seeking a writ of

certiorari in the Supreme Court expires.).

On January 17, 2001, Taylor signed and deposited a pro se petition for a

writ of habeas corpus, directed to the Superior Court of Chattooga County, into the

prison mail system. The clerk of that court filed Taylor’s petition on February 2,

2001. On August 26, 2002, following two evidentiary hearings, the superior court
 Under the federal “mailbox rule,” a pro se federal habeas petition is deemed to be filed 3

on the date it is delivered to prison authorities for mailing. Alexander v. Sec’y, Dep’t of Corr.,

No. 06-12501, slip op. at 2 n.4 (11th Cir. Apr. 8, 2008). After filing his petition, Taylor retained

counsel and, on December 21, 2005, counsel filed an amended habeas petition. 

 We review a district court’s determination that a § 2254 petition is time-barred under

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AEDPA de novo. Wade v. Battle, 379 F.3d 1254, 1259 n.5 (11th Cir. 2004).

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denied relief. The Georgia Supreme Court denied Taylor a certificate of probable

cause to appeal that decision on October 25, 2004.

On July 8, 2005, Taylor, proceeding pro se, signed the habeas petition now

before us and presumably delivered it to the prison authorities for mailing. It was

received by the clerk of the United States District Court for the Northern District

of Georgia four days later. Warden Williams, the respondent, moved the court to

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dismiss the petition as untimely, arguing that Taylor failed to file it within

AEDPA’s one-year limitations period. As noted above, the district court

dismissed the petition as time-barred on October 26, 2006.

II.

A.

In this case, AEDPA’s one-year limitations period began to run on October

3, 2000, the undisputed date that Taylor’s convictions became final. See 28

U.S.C. § 2244(d)(1)(A). Thus, absent a tolling of the one-year limitations period,

Taylor had until October 3, 2001, to file the instant petition.4
 In addition to the statutory tolling provision, we have recognized that equitable tolling 5

is warranted “in rare circumstances.” See Diaz v. Sec’y for Dept. of Corr., 362 F.3d 698, 700

(11th Cir. 2004). Because Taylor has not invoked this exception and it is not included within the

COA, we do not address it. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998)

(holding that “appellate review is limited to the issues specified in the COA”).

 This period of 362 days is calculated by taking the number of days from October 3, 6

2000, when Taylor’s conviction became final, to January 17, 2001, when Taylor signed his state

habeas petition (106 days), and adding to them the number of days that elapsed between October

25, 2004, when the Georgia Supreme Court denied Taylor’s application for a certificate of

probable cause to appeal, and July 8, 2005, when Taylor delivered his federal habeas petition to

the prison authorities for filing (256 days).

 This period of 378 days is calculated by taking the number of days from October 3, 7

2000, when Taylor’s conviction became final, to February 2, 2001, when the clerk of the

5

AEDPA’s limitations period is tolled while “a properly filed application for

State post-conviction or other collateral review . . . is pending.” 28 U.S.C. §

2244(d)(2). Taylor argues that we should use January 17, 2001, the date he 5

signed his state habeas petition and deposited it into the prison mail system, as the

date that the petition was properly filed for tolling purposes. Warden Williams

responds that February 2, 2001, the date the clerk of the Superior Court filed

Taylor’s petition, is the appropriate date to begin tolling the limitations period. 

This distinction is of utmost importance. If tolling began on the date Taylor

signed his petition, then only 362 days passed before he filed his federal petition.

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However, if tolling began on February 2, 2001, when Taylor’s state petition was

filed by the clerk of the Superior Court, then 378 days elapsed, and the instant

petition would be time-barred under AEDPA. Our decision in this case, 7
Superior Court filed his state habeas petition (122 days), and adding to them the number of days

that elapsed between October 25, 2004, when the Georgia Supreme Court denied Taylor’s

application for a certificate of probable cause to appeal, and July 8, 2005, when Taylor delivered

his federal habeas petition to the prison authorities for filing (256 days).

 In contrast to many of our cases analyzing the “properly filed” language, the question 8

before us today requires an inquiry focused on when the proper filing occurred rather than

whether a proper filing ever occurred. For a discussion of this latter and more complex inquiry,

see Siebert v. Campbell, 334 F.3d 1018 (11th Cir. 2003).

 The understandable explanation for this judicial silence is that Georgia did not establish 9

a limitations period for the filing of habeas petitions until 2004. See 2004 Ga. Laws Act 661

(codified as amended at O.C.G.A. § 9-14-42).

6

therefore, turns on when Taylor “properly filed” his state habeas petition, thereby

tolling the one-year limitations period for filing his federal petition. 

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B.

To determine when a state habeas petition has been “properly filed,” we

look to the applicable state law governing filings. See Artuz v. Bennett,

531 U.S. 4, 8, 121 S. Ct. 361, 364, 148 L. Ed. 2d 213 (2000); Wade v. Battle, 379

F.3d 1254, 1260 (11th Cir. 2004). At the outset, it is important to note that the

particular question before us has not been addressed by the Georgia courts. See

Wade, 379 F.3d at 1258 n.2 (“[W]e are aware of no Georgia court applying the

mailbox rule to initial pro se state habeas petitions.”). A lack of explicit Georgia 9

precedent on an issue, however, does not absolve us of our duty “to decide what

the state courts would hold if faced with [the issue].” Arceneaux v. Texaco, Inc.,
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

10

adopted as binding precedent decisions of the former Fifth Circuit handed down prior to October

1, 1981.

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623 F.2d 924, 926 (5th Cir.1980) (citations omitted). We must anticipate what 10

the Georgia Supreme Court would say. See Ernie Haire Ford, Inc. v. Ford Motor

Co., 260 F.3d 1285, 1290 (11th Cir. 2001). 

In Massaline v. Williams, 554 S.E.2d 720, 722-23 (Ga. 2001), the Georgia

Supreme Court adopted the mailbox rule when a pro se prisoner seeks to appeal

from a superior court decision denying his habeas corpus petition. Adopting the

reasoning of Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245

(1988), the Massaline court recognized that a mailbox rule was necessary because

of the “unique obstacles” faced by pro se prisoners: 

Unlike litigants who are not incarcerated, pro se prisoners cannot

monitor the processing of their appellate filings to ensure that the

clerk of the court timely receives them. . . . And, of course, being pro

se, they cannot rely on their lawyer to ensure the safe and timely

filing of their appeals. Pro se prisoners also must entrust their legal

papers to the prison officials, even though the warden is typically the

named defendant in a habeas corpus action.

Massaline, 554 S.E.2d 720 at 552-53 (citing Houston, 487 U.S. at 270-72, 108 S.

Ct. at 2382, 101 L. Ed. 2d 245).

The rationale of Massaline applies equally in the case at hand. We discern

no basis for distinguishing between a pro se prisoner filing a habeas petition and a
 The Georgia Supreme Court’s concern for pro se prisoners seeking habeas relief does 11

not extend to pro se prisoners seeking non habeas relief. As the court stated in Riley v. State,

626 S.E. 2d 116, 117 (Ga. 2006), “the mailbox rule established in Massaline does not exempt a

pro se prisoner from complying with the statutory requirements to file a timely notice in any non

habeas criminal or civil filing.” See, e.g., Mingledorff v. Stokely, 477 S.E.2d 374, 775 (Ga. Ct.

App. 1996) (rejecting the mailbox rule in the context of a negligence action brought by a prisoner

proceeding pro se). This distinction is grounded in Georgia’s vigorous protection of “a pro se

prisoner’s ability to pursue his constitutional right to habeas corpus.” Massaline v. Williams,

554 S.E.2d 720, 722 (Ga. 2001); see also Ga. Const. art. I, § 1, ¶ XV. 

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pro se prisoner filing a habeas appeal, and we have no reason to believe that the

Georgia Supreme Court would find one. “[A]dopting a mailbox rule for pro se

prisoners promotes judicial fairness and helps assure that habeas corpus cases are

decided on the merits and not the overly technical application of procedural rules.”

Id. at 722. 

11

We therefore hold that Taylor’s state habeas petition was “properly filed”

when Taylor deposited it into his prison’s mail system on January 17, 2001. This

was three days prior to the expiration of AEDPA’s one-year limitations period and

thus was timely. The judgment of the district court is accordingly vacated, and the

case is remanded for further proceedings. 

VACATED and REMANDED. 
9

COX, Circuit Judge, dissenting:

My guess is that the Georgia Supreme Court would decide this case the

same way today’s court decides it. The result is certainly equitable. A decision to

certify a question of state law to the supreme court of that state is a discretionary

one, Escareno v. Noltina Crucible & Refractory Corp., 139 F.3d 1456, 1461 (11th

Cir. 1998), but in my view a proper exercise of our discretion in this case requires

certification. Along the way to reaching the result the court reaches today it

overrules sub silentio some Georgia precedent and decides an important question

of Georgia law.

Today’s decision finds little support in Georgia precedent. Georgia’s Civil

Practice Act (“CPA”), Ga. Code Ann. §§ 9-11-1 to -133, “applies in habeas corpus

proceedings with regard to questions of pleading and practice.” Rolland v. Martin,

637 S.E.2d 23, 24 (Ga. 2006) (quoting State v. Jaramillo, 620 S.E.2d 798, 800

(Ga. 2005). Under the CPA, “[a] civil action is commenced by filing a complaint

with the court.” Ga. Code Ann. § 9-11-3(a). Thus in Georgia, a petition for a writ

of habeas corpus is “properly filed” with the court. Georgia has not liberally

interpreted the phrase “with the court.” “While some federal courts allow pro se

inmates to file certain civil pleadings with the jailer, such a rule does not prevail in

Georgia. ‘A civil action is commenced by filing a complaint with the court.’ And
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filing ‘with the court’ does not mean depositing the complaint in the mail.”

Mingledorff v. Stokely, 477 S.E.2d 374, 375 (Ga. Ct. App. 1996) (citations

omitted). Nothing in Massaline v. Williams, 554 S.E.2d 720 (Ga. 2001), or in any

other Georgia decision, overrules precedent that a civil action is commenced by a

proper filing “with the court.”

The habeas appeals statute at issue in Massaline, Ga. Code Ann. § 9-14-

52(b), includes a similar requirement, that habeas appeals must be filed “with the

clerk.” Over a vigorous dissent, the supreme court held, consistent with other

Georgia statutes including a “with the clerk” requirement, that a prisoner’s notice

of appeal and certificate of probable cause to appeal denial of habeas relief are

deemed filed “on the date [the prisoner] delivers them to prison authorities for

forwarding to the clerks of this Court and the superior court . . . .” 554 S.E.2d at

722-23. But, Georgia courts have not yet expanded this narrow and judiciallycreated exception, which, before today, applied only to habeas appeals. 

In Riley v. State, 626 S.E.2d 116 (Ga. 2006), the Georgia Supreme Court

said, “Massaline . . . by its explicit terms applies only in the narrow context of

habeas corpus appeals to permit a pro se prisoner’s notice of appeal to be deemed

filed on the date delivered to prison authorities.” Id. at 117. Although the issue

before the Riley court was not whether the mailbox rule applied to initial habeas
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filings, the court twice explicitly limited Massaline’s application to “appeals.”

Also, in McCroskey v. State, ---S.E.2d---, No. 07-2173, 2008 WL 518219 (Ga. Ct.

App. Feb. 28, 2008), the Georgia Court of Appeals refused to extend Massaline to

a pro se prisoner’s notice of direct appeal.

Two federal district courts in Georgia, the Northern and Middle Districts,

have relied on Riley in holding, in unpublished opinions, that the mailbox rule

does not apply to initial habeas filings. See Phillips v. Brown, No. 07-01601, 2008

WL 140712, *3 n.2 (N.D. Ga. Jan. 11, 2008) (citing Riley) (“[I]t appears that,

under Georgia law, this [prison mailbox] rule does not apply to the original filing

of a state habeas petition.”); Green v. Nelson, No. 06-00120, 2007 WL 2460770,

*3 (M.D. Ga. Aug. 24, 2007) (citing Riley) (“The Georgia Mailbox rule does not

apply to the filing of the original state habeas petition, only to the application for

certificate of probable cause to appeal and the notice of appeal of the state habeas

petition.”).

I would certify the question to the Georgia Supreme Court.