Opinion
No. 4:00CV00867 JWC.
April 21, 2003
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Melvin Shoemate, an Arkansas Department of Correction inmate, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #2). Respondent concedes (docket entry #5) that Petitioner is in his custody and has exhausted all non-futile state court remedies, but asserts that the petition is untimely. Petitioner filed a pro se response to this argument (docket entries #7, #8).
The Magistrate Judge previously recommended that the petition be dismissed as untimely (docket entry #9). Following that recommendation, counsel appeared on behalf of Petitioner and submitted objections expressly raising, for the first time, an equitable tolling argument (docket entries #10, #11). The recommendation was denied and the matter was referred back to the Magistrate Judge for reconsideration in light of the objections (docket entry #13). Respondent has filed a court-ordered response (docket entry #15) to the arguments raised in Petitioner's objections. These proposed findings and recommendations supersede those previously submitted.
For the reasons that follow, it is again recommended that this petition be dismissed as untimely.
Background
Following a jury trial in May 1997 in the Circuit Court of Fulton County, Arkansas, Petitioner was convicted of rape and was sentenced to twenty years of imprisonment. (Resp't Ex. A.) On June 3, 1997, his wife filed a notice of appeal on his behalf, which the Arkansas Supreme Court returned because it was not filed by a licensed attorney or the appellant. On October 9, 1997, Petitioner filed a motion for belated appeal. The Arkansas Supreme Court remanded the matter to the trial court to determine whether Petitioner had asked his trial attorney to file a notice of appeal. The trial court found that Petitioner had not made any such request and, after reviewing this finding, the Arkansas Supreme Court denied, on March 26, 1998, the motion for belated appeal. Shoemate v. State, 965 S.W.2d 779 (Ark. 1998).On May 18, 1998, Petitioner filed a state petition for post-conviction relief pursuant to Ark. R. Crim. P. 37. His petition was denied as untimely, and the Arkansas Supreme Court affirmed the denial on December 2, 1999. Shoemate v. State, 5 S.W.3d 446 (Ark. 1999). There is no evidence or allegation of further efforts to obtain post-conviction relief in state court.
On November 28, 2000, Petitioner filed this federal habeas petition, advancing the following claims:
For purposes of this opinion, the Court has assumed that Petitioner submitted his habeas petition to prison officials for mailing on the day he signed it. See Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999) (timeliness of federal habeas petition measured from date delivered to prison authorities for mailing to court clerk).
1. He was denied his rights to due process, equal protection of the laws, and the effective assistance of counsel on appeal when, after being informed that Petitioner wanted to appeal his conviction, counsel abandoned the indigent Petitioner, which resulted in the loss of a direct appeal;
2. He was denied his rights to due process, equal protection of the laws, and the effective assistance of counsel on appeal when, after being informed that Petitioner wanted to appeal his conviction, counsel failed to inform Petitioner that he had a right to counsel on appeal and if he could not hire counsel on his own, the court would appoint one for him, which resulted in the loss of appeal;
3. He was denied his rights to due process and equal protection of the laws when he was denied his right to appeal his conviction; and
4. He was denied his right to the effective assistance of trial counsel.
Statute of Limitations
Respondent asserts that the petition should be dismissed as barred by the statute of limitations set forth in 28 U.S.C. § 2244(d), which provides as follows:
(d)(1) 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 period 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
In the instant case, Petitioner was found guilty at a jury trial on May 7, 1997, and the judgment of conviction was filed with the trial court the next day, May 8, 1997. (Resp't Ex. A.) After that date, Petitioner had thirty days to file a notice of appeal. Ark. R. App. P.-Crim. 2(a) (2002). Because the thirtieth day fell on a Saturday, he had until Monday, June 9, 1997, to file his notice of appeal. See Jones v. State, 819 S.W.2d 683, 683 n. 1 (Ark. 1991). Within that thirty-day period, his wife attempted to file a notice of appeal, but it was returned by the Arkansas Supreme Court as not being filed by the appellant or a licensed attorney.
On October 9, 1997, Petitioner filed a timely motion for belated appeal. See Ark. R. App. P.-Crim. 2(e) (permitting supreme court to entertain belated motions to appeal up to eighteen months after entry of judgment). The law is unclear as to whether the period between Petitioner's judgment of conviction and his belated appeal motion counts against the one-year limitations period. If the belated appeal proceedings are considered part of the "direct review" process in Arkansas, then the limitations period would not begin running until conclusion of that process, pursuant to § 2244(d)(1)(A). See Wright v. Norris, 299 F.3d 926, 928 n. 3 (8th Cir. 2002) (assuming without deciding that state post-conviction proceedings remain pending, for purposes of the statute of limitations, for the period during which the Arkansas Supreme Court will entertain a motion for belated appeal; suggesting the issue depends upon whether such a motion "is part of the ordinary appellate review procedure in the State," an issue for which clarification by the Arkansas Supreme Court would be helpful); Mills v. Norris, 187 F.3d 881, 884 n. 4 (8th Cir. 1999). The Court will assume the limitations period was tolled during this time, with the period beginning to run on March 26, 1998, when the Arkansas Supreme Court affirmed the denial of Petitioner's motion for belated appeal.
Cf. Orange v. Calbone, 318 F.3d 1167, 1171-73 (10th Cir. 2003) (finding that, when Oklahoma courts granted out-of-time appeal, it would be treated as part of "direct review" process under § 2244(d)(1)(A), but where application for out-of-time appeal was denied, limitations period was not "reset").
If the motion for belated appeal is considered part of the direct-review process, Petitioner's judgment presumably would not become final until the expiration of the time allotted for filing a petition for writ of certiorari before the United States Supreme Court after denial of the belated appeal motion. Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). This additional ninety-day period would not, however, materially affect the calculations in this opinion.
On May 18, 1998, Petitioner filed a Rule 37 post-conviction petition. The time between the belated appeal ruling and the Rule 37 filing counts against Petitioner's one-year clock. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (limitations period not tolled between date that direct review of conviction is completed and date that an application for state post-conviction relief is filed).
Unless, of course, Petitioner was allotted ninety days for seeking certiorari, see supra note 3.
As stated above, the time during which a properly filed state post-conviction proceeding is pending is not counted toward any period of limitation under § 2244(d)(2). Thus, if Petitioner's Rule 37 petition was properly filed under Arkansas law, the clock would stop running during the pendency of his post-conviction proceedings in both the trial court and the appellate court, as well as the interval in between. See Peterson v. Gammon, 200 F.3d 1202, 1204 (8th Cir. 2000) (limitations period tolled during interval between trial court's denial of post-conviction relief and filing of timely appeal from that denial); Snow v. Ault, 238 F.3d 1033, 1035-36 (8th Cir.), cert. denied, 532 U.S. 998 (2001) (limitations period not tolled for the ninety days during which certiorari could have been sought following a final decision denying state post-conviction relief).
A petition is "properly filed" under § 2244(d)(2) when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings," including "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee."Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis added).
Here, the Arkansas Supreme Court found that Petitioner's Rule 37 petition was untimely because, under the rule's language regarding convictions where no direct appeal was taken, he was required to file any such petition within ninety days of his judgment of conviction. Shoemate, 5 S.W.3d at 447-48. The supreme court rejected Petitioner's arguments (1) that his wife's attempted filing constituted the taking of a direct appeal, and (2) that he should be allowed sixty days to file a Rule 37 petition following the denial of his motion for belated appeal. Id.
Rule 37.2(c) provides in relevant part:
If . . . the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of entry of judgment . . .
If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court. In the event an appeal was dismissed, the petition must be filed in the appropriate circuit court within sixty (60) days of the date the appeal was dismissed. . . .
In this federal action, Petitioner argues that his Rule 37 petition was timely, disagreeing with the Arkansas Supreme Court's construction of the applicable language. He also contends that the current version of Rule 37 was illegally promulgated in violation of the separation of powers doctrine and his right to due process, and that any noncompliance thus should not bar federal habeas review. Specifically, he says the state supreme court acted unconstitutionally in setting time limitations for seeking post-conviction relief when an earlier statute allowed defendants to file such petitions at any time. He also argues that the limitations period should be equitably tolled.
In determining whether a state post-conviction petition is "properly filed" so as to toll the limitations period under § 2244(d)(2), Artuz requires courts to determine whether the petition complied with "applicable laws and rules governing filings." Artuz, 531 U.S. at 8. Here, Arkansas's highest court examined the relevant language and determined that Petitioner's Rule 37 petition did not comply with the rule's jurisdictional time constraints. Under Arkansas law, Rule 37's time limitations are jurisdictional, and relief may not be granted on an untimely petition for post-conviction relief. Shoemate, 5 S.W.3d at 447. Once it is determined that jurisdiction does not exist due to the untimeliness of a postconviction petition, the case must be disposed of on that basis. Maxwell v. State, 767 S.W.2d 303, 305 (Ark. 1989). Because, under the applicable state law, neither the trial court nor the supreme court had jurisdiction to consider Petitioner's untimely Rule 37 petition, it cannot be considered to have been "properly filed" within the meaning of § 2244(d)(2).
Petitioner's arguments regarding the alleged unconstitutionality of the state postconviction process are not sufficient to excuse his failure to comply with the federal statute of limitations. Courts must "apply statutes as written."Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002), cert. denied, 123 S. Ct. 1361 (2003). Section 2244(d) fixes a one-year period of limitation, includes several explicit exceptions, provides for tolling during properly filed state post-conviction proceedings, and says nothing about the adequacy of that process. "It is not [the Court's] place to engraft an additional judge-made exception onto congressional language that is clear on its face." Id.
Furthermore, the Arkansas Supreme Court has expressly found that the state legislature did not unlawfully delegate legislative authority, in violation of the separation of powers doctrine, by authorizing the state supreme court to prescribe its rules of criminal procedure, which include Rule 37. Miller v. State, 555 S.W.2d 563, 564 (Ark. 1977). If the court has the inherent power to make such rules, it also has the inherent power to abolish, amend, revise or reinstate them. Jennings v. State, 633 S.W.2d 373, 374 (Ark. 1982). Additionally, because there is no constitutional right to collaterally attack a final judgment of conviction in the first place, United States v. MacCollom, 426 U.S. 317, 323 (1976), due process protections are not implicated when the post-conviction procedures are modified.
Therefore, the statutory limitations period began running upon the Arkansas Supreme Court's decision on Petitioner's motion for belated appeal, on March 26, 1998. Petitioner filed his petition on November 28, 2000, over thirty-one months later, exceeding the one-year time limitation.
Petitioner invokes none of § 2244(d)(1)'s other grounds for extending the filing deadline, nor does any appear applicable. There is no allegation that any state-created impediment has prevented Petitioner from timely seeking federal habeas relief under § 2244(d)(1)(B). The underlying facts for the claims were obviously known to Petitioner in time to file a federal habeas petition, and the constitutional rights at issue are wellestablished, thereby precluding application of § 2244(d)(1)(C) or (D). See Evitts v. Lucey, 469 U.S. 387 (1985) (once a state has afforded a right of direct appeal to criminal defendants, procedures used in deciding the appeals must comport with the demands of the Due Process and Equal Protection Clauses); Strickland v. Washington, 466 U.S. 668 (1984) (criminal defendant's right to effective assistance of counsel).
Petitioner does raise an equitable tolling argument in this regard, but he does not contend that the limitations period wasstatutorily tolled due to state action (see docket entry #11, p. 1).
The Court, therefore, finds that no basis exists for statutorily tolling the one-year limitations period.
Equitable Tolling
Section 2244(d)'s one-year provision is a true statute of limitations, rather than a jurisdictional bar, and is thus subject to equitable tolling in addition to the specified statutory exceptions. Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), cert. denied, 534 U.S. 863 (2001). Equitable tolling of the limitations period is proper, however, only in certain "extraordinary circumstances" and affords "an exceedingly narrow window of relief." Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001). It applies "only when some fault on the part of a defendant has caused a plaintiff to be late in filing, or when other circumstances, external to the plaintiff and not attributable to his actions, are responsible for the delay."Flanders, 299 F.3d at 977. The Eighth Circuit has advised that "[a]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Jihad, 267 F.3d at 806.
Petitioner says that Arkansas law, as applied and interpreted by the Arkansas Supreme Court, effectively prevented Petitioner from filing a timely Rule 37 petition. Specifically, he says that he was forced, following his judgment of conviction, to choose between filing a Rule 37 petition or a motion for belated appeal and that he should not be penalized for choosing the wrong one. This, he says, is a "textbook example" of a situation in which equitable tolling should apply.
Under Arkansas law, all grounds for post-conviction relief are to be brought in a Rule 37 petition. Ark. R. Crim. P. 37.2(b). This includes challenges to the effectiveness of counsel in violation of the United States Constitution. Id. 37.1;Huddleston v. State, 5 S.W.3d 46, 50 (Ark. 1999) (Rule 37 petition is proper remedy for challenging adequacy of attorney's representation). As stated earlier, when no direct appeal is taken of a conviction, a Rule 37 petition must be filed within ninety days of the date of entry of judgment of conviction. Ark. R. Crim. P. 37.2(c).
On the other hand, Rule 2(e) allows a defendant to file a motion for belated appeal within eighteen months of the entry of judgment. Counsel's failure to perfect a direct appeal may constitute good cause under Arkansas law for granting a belated appeal of a conviction. Woodruff v. State, 916 S.W.2d 104, 104 (Ark. 1996); Gay v. State, 707 S.W.2d 320, 321 (Ark. 1986).
As Petitioner points out, the Arkansas Supreme Court has held on numerous occasions that, if a defendant believes his attorney failed to take a direct appeal when requested to do so, the proper means for seeking relief is through a motion for belated appeal under Rule 2(e), rather than through Rule 37. Shuffield v. State, 729 S.W.2d 11, 12 (Ark. 1987); Robbins v. State, 705 S.W.2d 6, 7-8 (Ark. 1986); Lomax v. State, 688 S.W.2d 283, 285 (Ark. 1985).
At the time of these decisions, defendants had three years to file a Rule 37 petition after conviction, as opposed to the current limitation of 60 or 90 days. The rationale of these cases was that allowing a defendant to utilize Rule 37 to seek a belated appeal "would have the effect of doubling the time" for requesting a belated appeal. Robbins, 705 S.W.2d at 8. That rationale no longer exists.
Nevertheless, the Court has found nothing in Arkansas law which prevents a criminal defendant from filing both a Rule 37 petition in the trial court and a motion for belated appeal in the Arkansas Supreme Court. In fact, this is what the Arkansas Supreme Court suggested that Petitioner should have done in this case:
It was [Petitioner's] burden to take prudent and diligent measures to protect his right of appeal. Here, [Petitioner] should have filed his Rule 37 petition within ninety days of his judgment of conviction despite the possibility that a motion for belated appeal might be filed.Shoemate, 5 S.W.3d at 448 (emphasis added).
While it is true that Arkansas law does not permit both an appeal and a Rule 37 petition to be pending at the same time,see Ark. R. Crim. P. 37.2(a), a motion for belated appeal does not equate with an appeal. No appeal would be pending until — and unless — the motion was granted. Again, the Arkansas Supreme Court recognized this in Petitioner's belated appeal proceeding, rejecting Petitioner's contention that he had a pending direct appeal because no order was ever entered dismissing his wife's attempted filing of a notice of appeal. The court stated that the attempted filing by his wife was "of no consequence" in preserving his right to appeal because it was never accepted or filed and that the court "never acquired jurisdiction of the appeal." Id. The court then stated that Petitioner `failed to take an appeal of the judgment." Id. The Arkansas Supreme Court reiterated this in a later case, Stephens v. State, No. CR 01-777, 2002 WL 228834 (Ark. Feb. 14, 2002), in which a motion for belated appeal was granted, making a subsequent Rule 37 petition timely. The supreme court distinguished Petitioner's case, stating that he had "failed to take an appeal of the judgment," which is why his subsequent Rule 37 petition was untimely. Id. at *1. Thus, it is clear that, even though Petitioner had a pending motion for belated appeal, the Arkansas Supreme Court did not consider him to have a pending appeal.
Alternatively to the simultaneous filing of Rule 37 and Rule 2(e) petitions, Petitioner could have first filed a Rule 37 motion, which had a shorter deadline (ninety days), and then, upon resolution of that motion, filed a motion for belated appeal, which he had eighteen months to file. This is what the defendant did in Strom v. State, 74 S.W.3d 233 (Ark. 2002). There, the defendant filed a timely Rule 37 petition within ninety days of her conviction, and it was denied two months later. She then filed a second Rule 37 motion alleging that her attorney refused to appeal her conviction. Before she obtained a ruling on her second Rule 37 motion, she filed a timely motion for belated appeal, within the allotted eighteen-month period. The motion for belated appeal was ultimately considered on the merits and denied. Id. at 234-35; see also Strom v. State, 55 S.W.3d 297, 298 (Ark. 2001). Strom illustrates not only that the Arkansas Supreme Court will consider a motion for belated appeal while a Rule 37 petition is pending in the trial court but also that Arkansas's procedure does not necessarily thwart a defendant in the same position as Petitioner. The Strom defendant was able to file a timely Rule 37 petition, have it resolved, then file a timely motion for belated appeal.
In a recent case, Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir. 2003), the Eighth Circuit refused to apply the equitable tolling doctrine to a habeas petitioner who, like Petitioner, was faced with a difficult strategic decision in his post-conviction proceedings. There, the decision was whether to continue prosecuting and amending a federal habeas petition containing both exhausted and unexhausted claims, or to seek a prompt voluntary dismissal of the federal habeas petition and return to state court to exhaust all of his claims. The Eighth Circuit held that the petitioner's "lack of understanding of the law and the effect of his voluntary dismissal, while regrettable, [did] not amount to an extraordinary circumstance beyond his control" that warranted equitable tolling. Id. at 1016.
Cross-Bey's strict application of the equitable tolling doctrine is consistent with every other Eighth Circuit case that has considered the doctrine in the context of the federal habeas statute of limitations. While the Eighth Circuit clearly holds that equitable tolling may be appropriate, it has yet to find any circumstances sufficiently "extraordinary" to justify its application. See Baker v. Norris, 321 F.3d 769, 771-72 (8th Cir. 2003) (no equitable tolling due to state prison's rules limiting inmate access to library, prisoner's ignorance of enactment of statute of limitations and its application to her, prisoner's alleged "actual innocence," or her state court attorney's alleged ineffectiveness); Beery v. Ault, 312 F.3d 948, 951-52 (8th Cir. 2002) (inaction of post-conviction counsel); Flanders, 299 F.3d at 977-78 ("actual innocence" claim where petitioner showed no state action or inaction that prevented him from timely discovering the relevant facts through reasonable diligence); Jihad, 267 F.3d at 805-07 (inability to obtain state post-conviction counsel, fact that petitioner wrote letters to trial judge inquiring about procedures for filing for post-conviction relief, and defense counsel's delay in sending petitioner his trial transcript); Gassler v. Bruton, 255 F.3d 492, 494 (8th Cir. 2001) (delays in obtaining trial transcript); Kreutzer, 231 F.3d at 463 (counsel's failure to recognize importance of statute of limitations); Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999) (inter-prison mail delay and reliance on another inmate).
The Eighth Circuit's unpublished opinions provide other examples of circumstances that are inadequate to justify equitable tolling. Freeman v. Norris, No. 02-3172, 2003 WL 873990 (8th Cir. Mar. 5, 2003) (claim of "actual innocence" with no showing of wrongdoing by state that prevented petitioner from filing timely habeas petition); Curtis v. Kemna, 22 Fed.Appx. 663, 2001 WL 1480108 (8th Cir. Nov. 23, 2001) (inadequate law library); Greene v. Washington, 14 Fed.Appx. 736, 2001 WL 817524 (8th Cir. July 20, 2001) (post-conviction attorney mistakenly advised petitioner about applicable limitations period); Nichols v. Dormire, 11 Fed.Appx. 633, 2001 WL 311006 (8th Cir. Apr. 2, 2001) (insufficient degree and duration of mental impairment); Collins v. Scurr, 230 F.2d 1362, 2000 WL 1341544 (8th Cir. Sept. 19, 2000) (alleged mental incompetency at the time of guilty plea); Preston v. State, 221 F.3d 1343, 2000 WL 995013 (8th Cir. July 20, 2000) (petitioner's unfamiliarity with federal law and inability to timely obtain transcripts from former attorney).
As a whole, these decisions establish that pro se status, lack of legal knowledge or legal resources, confusion about or miscalculation of the limitations period, or the failure to recognize the legal ramifications of actions taken in prior post-conviction proceedings, are inadequate to warrant equitable tolling. Where a habeas petitioner has encountered "the kinds of obstacles faced by many if not most habeas petitioners," equitable tolling is inapplicable because Congress is presumed to have considered such equities in enacting the limitations period and the enumerated statutory exceptions. Jihad, 267 F.3d at 806-07.
Therefore, like the petitioner in Cross-Bey, while Petitioner made an unfortunate choice in navigating his way through his post-conviction proceedings, there were no "extraordinary circumstances beyond [his] control that made it impossible for him to file a timely [federal habeas] petition, and nothing in [the state's] conduct can be said to have lulled [him] into inaction." Cross-Bey, 322 F.3d at 1015-16. When the Arkansas Supreme Court returned his attempted notice of appeal on July 8, 1997, he knew that he had no direct appeal pending. He allowed the ninety-day period for filing a timely Rule 37 petition to pass, then filed a motion for belated appeal. He has not demonstrated that it would have been impossible for him to seek and obtain a ruling on both a Rule 37 petition and a belated appeal motion during the prescribed time periods. His decision to bypass the Rule 37 remedy, "while regrettable," does not justify equitable tolling under Eighth Circuit precedent. See id. at 1016.
The Court finds that, under these circumstances, equitable tolling is not appropriate.
Conclusion
This petition for writ of habeas corpus (docket entry #2) was filed outside the limitations period provided in § 2244(d)(1) and was not tolled under any of the statutory exceptions or equitable principles. Therefore, it is untimely and should be dismissed in its entirety with prejudice.