Gerard Joseph Pugh v. Hugh Smith

Citations: 465 F.3d 1295; 2006 U.S. App. LEXIS 24665; 2006 WL 2788639Docket: 05-12100, 05-13021

Court: Court of Appeals for the Eleventh Circuit; September 29, 2006; Federal Appellate Court

Original Court Document: View Document

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The Eleventh Circuit Court of Appeals addressed the timeliness of Gerard Joseph Pugh's federal habeas corpus petition following his Georgia conviction for aggravated assault and burglary. Pugh's conviction was affirmed by the Georgia Court of Appeals on August 13, 2001, and he did not seek further review from the Supreme Court of Georgia. The district court determined that Pugh's conviction became final 10 days after the appellate decision, as he had the opportunity to seek review in the state Supreme Court. The court concluded that Pugh was not entitled to the 90-day period for seeking review in the Supreme Court of the United States because he did not pursue his case in the highest state court. Consequently, his habeas petition was dismissed as untimely. Pugh had previously filed a state habeas petition in 2002, which was denied, and he later filed in federal court on October 27, 2004. The warden, Hugh Smith, asserted the untimeliness of Pugh’s petition, which was supported by claims that Pugh's counsel had failed to file necessary appeals. A magistrate judge recommended dismissal based on the expired statute of limitations, noting Pugh did not provide grounds for tolling the limitations period. The Court affirmed the dismissal.

Pugh raised objections regarding the lack of responses to his filings, including a notice of appeal and a motion to reconsider, asserting that both the Court of Appeals and the Georgia Supreme Court indicated they had not received his documents. Consequently, he filed a writ of habeas corpus. The district court upheld a report and recommendation, granted Smith’s motion, and dismissed Pugh’s petition as untimely, also denying him a certificate of appealability. However, a certificate was granted to assess the timeliness dismissal. Subsequently, Pugh filed a second habeas petition, which was dismissed by the district court as impermissibly successive; Pugh conceded this point, abandoning the issue on appeal. 

Two standards of review apply: the dismissal of a habeas corpus petition is reviewed de novo for timeliness, while the denial of an evidentiary hearing is reviewed for abuse of discretion. The appeal raises two main issues: whether Pugh could seek Supreme Court review without first appealing to the Georgia Supreme Court and whether the district court abused its discretion by denying an evidentiary hearing to ascertain if Pugh had filed for certiorari in Georgia or was eligible for equitable tolling. 

It was determined that, since the Georgia Supreme Court was available for Pugh to appeal his conviction, he was not entitled to seek review in the U.S. Supreme Court or the associated 90-day filing period. Under the Antiterrorism and Effective Death Penalty Act, a state prisoner's habeas corpus petition is subject to a one-year statute of limitations that begins when the conviction becomes final, either after direct review or the expiration of the time for seeking such review. If a prisoner petitions for certiorari, the conviction is final upon denial or affirmation by the U.S. Supreme Court; otherwise, it becomes final when the time for filing expires. The Supreme Court mandates that petitioners seek review from the highest state court before filing for certiorari.

Pugh's eligibility for direct review by the Supreme Court of the United States is pivotal in assessing the timeliness of his federal habeas petition. If Pugh could seek review in the Supreme Court of Georgia after the Georgia Court of Appeals affirmed his conviction on August 13, 2001, then his conviction would finalize on August 23, 2001, following the 10-day period for seeking that review. Consequently, the one-year limitation for filing a federal habeas petition would expire on August 22, 2002. Conversely, if he could directly petition the Supreme Court of the United States without first going to the Georgia Supreme Court, his conviction would finalize on November 12, 2001, 90 days post the appellate decision, allowing 41 days remaining in the limitation period when he filed his state habeas petition on October 11, 2002. This state petition would toll the limitation period until October 13, 2004, when his application for a certificate of probable cause was denied. Pugh's federal habeas petition was filed on October 27, 2004, 27 days before the one-year deadline. 

In determining the finality of convictions, precedent from Florida cases indicates that a conviction is deemed final 90 days after affirmance by the appellate court if a prisoner can seek review in the U.S. Supreme Court. While no precedent exists for Georgia, Pugh concedes that the Supreme Court of Georgia is the highest court available for direct review. Despite the constitutional limitations on the court's review, it retains certiorari jurisdiction for cases of significant public importance. Since Pugh was not entitled to petition the U.S. Supreme Court for certiorari and did not warrant the additional 90 days, his conviction became final on August 23, 2001, which was over a year before he filed his state habeas petition. Additionally, the district court did not err in refusing to hold an evidentiary hearing regarding Pugh's attempts to seek direct review or claims for equitable tolling.

Section 2244 of Title 28 of the United States Code grants district courts discretion regarding whether to hold a hearing on issues of time-bar or equitable tolling. An evidentiary hearing is warranted only when material facts are disputed. A petitioner cannot claim an evidentiary hearing based on conclusory allegations lacking specific details. In Pugh’s case, even liberally construed, his pro se pleadings did not establish a factual dispute about the timeliness of his petition. Pugh admitted that his attorneys did not seek Supreme Court of Georgia review, and there was no record of such a filing. The record did not necessitate further inquiry, nor did it indicate a need for a hearing on equitable tolling. Pugh’s assertion of attorney negligence, insufficient for equitable tolling, failed to demonstrate diligence or extraordinary circumstances required for such consideration. Ultimately, Pugh did not meet his burden to show that equitable tolling was justified, and the district court's decision not to investigate further was not an abuse of discretion. The dismissal of Pugh’s habeas petition was affirmed.