[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 13392 Non

- Argument Calendar

________________________ D.C. Docket No . 1:15

- cv - 00103

- WBH

DARRELL DOLPHY , Petitioner

- Appellant,

versus WARDEN, CENTRAL S TATE PRISON , Respondent

- Appellee.

________________________ Appeal from the United S tates District Court for the Nor thern District of Ge orgia

________________________ (May 24, 2016) Before WILSON, WILLIAM PRYOR and FAY, Circuit Judges. PER CURIAM:

Case: 15-13392 Date Filed: 05/24/2016 Page: 1 of 62 Darrell Dolphy, a Georgia prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 federal habeas petition. The district court found that t he petition w as untimely filed under the one

- year statute of limitations established by the Anti

- Terrorism and Effective Death Penalty Ac t of 1996 (AEDPA )

. See 28 U.S.C. § 2244(d)(1). Whether Dolphy’s petition was timely turns o n when his

s tate habeas proceedings stopped “pending” for purposes of AEDPA’s tolling provision, 28 U.S.C. § 2244(d)(2). The district court concluded that those proceedings became complete once the Georgia Supreme Court denied Dolphy’ s application for a certificate of probable c ause and the period for seeking reconsideration of that denial lapsed . However, Dolphy argues that his proceedings were pending until the Georgia Supreme Court issued the remittitur for the denial. We a gree with Dolphy. Accordingly, w e reverse and remand. 1
I. BACKGROUND Dolphy filed a s tate habeas petition 280 days after his convictions became final . The s tate superior court rejected the petition, and Dolphy timely sought review by the Georgia Supreme Court, applying for a certificate of probable caus e . The Court denied the application. Dolphy then had 10 days to seek reconsideration of the denial, but he did not do so. Eighteen days after that 10

- day period expired,

1 Because reversal is warranted based on our conclusion that Dolphy’s state habeas proceedings were pending until the Georgia Supreme Court issued the remittitur for its denial of his request for a certificate of probable cause, we need not address the other “timeliness” arguments that he raises on appeal.

Case: 15-13392 Date Filed: 05/24/2016 Page: 2 of 63 the Court issued the remittitur for its denial of Dolphy’s application

. 2 Dolphy fi led his § 22 54 petition 84 days after the Court issued the remittitur. In considering Dolphy’s petition, the district court found that his s tate habeas proceedings tolled his AEDPA one - year statute of limitations. However , the court determined that those proceedings became complete once Dolphy’s 10

- day reconsideration period expired. Therefore, it held that Dolphy filed his § 22 54 petition 17 days after the

one - year statute of limitations lapsed

. II. DISCUSSION We review de novo the distr ict court’s determination that Dolphy’s § 22 54 petition w as time barred under § 2244(d). Bridges v. Johnson , 284 F .3d 1201, 1202 (11th Cir. 2002). Under AEDPA, p risoners like Dolphy have one year from when their convictions become final to file a § 2254 petition. S ee 28 U.S.C. § 2244(d)(1)(A)

. This one

- year statute of limitations is subject to tolling while “ a properly filed application for [ s ] tate post

- convic tion” relief is “ pending

. ” See id. § 2244(d)(2)

. U ntil a s tate habeas peti tion “ has achieve d final resolution through the [s] tate’s post

- conviction procedures, by definition it remains ‘pending.’” Carey v. Safford , 536 U.S. 214, 219

– 20, 122 S . Ct. 2134, 2138 (2002) ; see also Holland v. Florida ,

2 The Georgia Supreme Court must transmit a remittitur to the court from which the case was received “as soon as practicable after the expiration of 10 days after the entry of the judgment or upon the denial of a motion for reconsideration.” Ga. R. S. Ct. 60.

Case: 15-13392 Date Filed: 05/24/2016 Page: 3 of 64 560 U.S. 631, 635, 638, 130 S. Ct. 2549, 2554 , 2556 (2010) (c oncluding that the

one - year statute of limitations “clock again began to tick” when the state supreme
court issued its mandate because, at that time, its decision on the petitioner’s habeas petition became final). Hence , the one

- year statute of limitat ions for filing

a § 2254 petition is tolled “as long as the [petitioner’s] ordinary state collateral review process is ‘in continuance’

— i.e. , ‘until the completion of’ tha t process.” Carey , 53 6 U.S. at 219

– 20, 122 S . Ct. at 2138

. Here, w e must determine when Dolphy’s state habeas proceedings became complete. If his proceedings were final 10 days after the Georgia Supreme Court decided to deny his request for a certificate of probable cause, then

— as the district court found

—he filed his § 2254 petition 1 7 days after his one

- year statute of limitations lapsed . On the other hand, if the proceedings did not become complete until the Georgia Supreme Court issued the remittitur for the denial, then Dolphy filed his § 2254 petition one day befo re his limitations period lapsed. To determine the point at which a petitioner’s s tate habeas proceedings become complete , we look to the s tate’s procedural rules. See Wade v. Battle , 379 F.3d 1254, 126 0

– 6 2 (11th Cir. 2004) (per curiam)

. In Georgia, after a superior

co urt denies a petitioner’s s tate habeas petition, the petitioner must obtain a certificate of probable cause to appeal the denial to the Georgia Supreme Court. See O.C.G.A. § 9

- 14

- 52(a )

. In other words, the Court’s decision to deny an

Case: 15-13392 Date Filed: 05/24/2016 Page: 4 of 65 application for a certificate of probable cause disposes of the petitioner’s habeas proceedings. See id. Thus , once such a decision becomes final, the petitioner’s proceedings are complete

. This occurs when the remittitur for the decision is transmitted

. A Georgia Supreme Court “ decision is amendable during the term of rendition and therefore not final until the remittitur is transmitte d. ” See Radford v. State , 233 S.E.2d 7 85, 786 (Ga. 1977); Ramsey v. State , 92 S.E.2d 866 , 869 ( Ga. 1956) (“[D]uring the time before the remittitur is transmitted, this [C]ourt may alter, amend, or set aside its judgments.” ); Atkins v. Estate of Callaway , 763 S.E.2d 369, 371 (Ga. Ct. App. 2014) (“Until the remittitur is issued, the direct a ppeal is still pending.”). Accordingly , when a state habeas petitioner seeks a certificate of probable cause from the Georgia Supreme Court and the Court deni es the request, the petitioner’s case becomes complete when the Court issues the remittitur for the denial. See O.C.G.A. § 9

- 14

- 52(a ) ; Radford , 233 S.E.2d at 786 ; Ramsey , 92 S.E.2d at 869; Atkins , 763 S.E.2d at 371

. This means that the case remain s pending

— and tolled

— under § 2244(d)(2) until the Court issues the remittitur

. S ee Carey , 536 U.S. at 219

– 20, 122 S . Ct. at 2138

. As noted above , Dolphy filed his s tate habeas petition 280 days after his convictions became final , tolling his one

- year statute of limitations. He then filed his § 2254 petition 84 days after that tolling period ended . That is to say, he filed

Case: 15-13392 Date Filed: 05/24/2016 Page: 5 of 66 the petition 84 days after the Georgia Supreme Court issued the remittitur for its denial of his request for a certificate of probable cause. As such , only 364 days lapsed on Dolphy’s one - ye ar statute of limitations, and his petitio n was timely, s ee 28 U.S.C. § 22 44(d)(1). III. CONCLUSION We hold that , for purposes of § 22 44(d)(2), when the Georgia Supreme Court denies a s tate habeas petitioner’s application for a certificate of probable cause, the petitioner’s proceedings remain “pen ding” until the Court issues the remittitur for the denial

. Applying this holding to Dolphy , his § 22 54 petition was timely

. REVERSED AND REM ANDED. Case: 15-13392 Date Filed: 05/24/2016 Page: 6 of 6