Brown III v. O'Dea

• Decision Date: 26 January 1999
• Docket Number: Nos. 97-6355,97-6425,s. 97-6355
• Parties: (6th Cir. 1999) James H. Brown, III, Petitioner-Appellant/ Cross-Appellee, v. Michael O'Dea, Warden, Eastern Kentucky Correctional Complex, Respondent-Appellee/ Cross-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 572

187 F.3d 572 (6th Cir. 1999)

James H. Brown, III, Petitioner-Appellant/ Cross-Appellee, v. Michael O'Dea, Warden, Eastern Kentucky Correctional Complex, Respondent-Appellee/ Cross-Appellant.

Nos. 97-6355, 97-6425

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 26, 1999

Decided and Filed: August 5, 1999

Appeal from the United States District Court for the Eastern District of Kentucky at Covington; No. 97-00030--William O. Bertelsman, District Judge. [Copyrighted Material Omitted] Gail Robinson, Kevin M. McNally, McNALLY & ROBINSON, Frankfort, Kentucky, for Appellant.

Todd D. Ferguson, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL APPELLATE DIVISION, Frankfort, Kentucky, for Appellee.

Before: MERRITT and MOORE, Circuit Judges; DUGGAN,^* District Judge.

DUGGAN, D. J., delivered the opinion of the court. MERRITT (pp. 580-83), and MOORE (pp. 583-87), JJ., delivered separate concurring opinions.

OPINION

DUGGAN, District Judge.

This matter is before the Court on petitioner's appeal from the district court's dismissal of his 28 U.S.C. 2254 petition for writ of habeas corpus. Petitioner is currently incarcerated at the Eastern Kentucky Correctional Complex.

Petitioner filed a 2254 petition for writ of habeas corpus in the United States District Court for the Eastern District of Kentucky, challenging his conviction in Kentucky state court for murder, for which he was sentenced to twenty years imprisonment. The district court denied the petition; however, it granted a certificate of appealability so that petitioner could appeal the court's denial of the writ. This appeal ensued.

Petitioner and his brother, Mark Brown, were convicted in 1976 of the murder of Bryant Dudley. Petitioner was sentenced to twenty years imprisonment on October 15, 1976 but released on a state court bond pending appeal on October 30, 1976. On October 5, 1977, the Kentucky Supreme Court dismissed petitioner's direct appeal as untimely. On October 31, 1977, petitioner filed a petition for writ of habeas corpus contending that the dismissal of his direct appeal was in error. On February 6, 1978, the district court denied petitioner's application due to his failure to exhaust his state court remedies, but retained the case on its docket pending exhaustion of those remedies.

The Kentucky Supreme Court granted petitioner's motion for a belated appeal on March 17, 1978, but dismissed it on August 22, 1978. On August 24, 1978, petitioner filed a motion to reconsider his petition for writ of habeas corpus in the district court. The state court resentenced petitioner to twenty years imprisonment on September 5, 1978. On June 27, 1979, the district court granted petitioner a conditional writ of habeas corpus, but stayed the writ for a period of sixty days so that petitioner's appeal to the Kentucky Supreme Court could be reinstated. The district court order stated that if petitioner's appeal were not reinstated, petitioner's conviction would be set aside. This Court affirmed that judgment and the United States Supreme Court denied Brown's petition for writ of certiorari. Brown v. Smith, 633 F.2d 213 (6th Cir. 1980), cert. denied, 451 U.S. 1002 (1981).

The Kentucky Supreme Court ultimately affirmed Brown's conviction on August 31, 1982, but remanded the case to the state trial court for resentencing following a presentence investigation. Resentencing never took place, however, because Brown, who was still free on appeal bond, became a fugitive from justice in Australia for more than ten years. In January 1993, the Commonwealth of Kentucky filed a motion for a bench warrant, which was executed by Brown's arrest in May 1993 when he was extradited. On June 23, 1993, petitioner filed a motion pursuant to Kentucky Civil Rule 60.02(f) to vacate the seventeen-year old judgment against him based upon the allegedly improper admission of expert testimony at trial. In July 1993, a state trial court denied the motion. The Kentucky Court of Appeals affirmed the trial court's denial of Brown's Rule 60.02(f) motion in December 1994. The Supreme Court of Kentucky granted discretionary review and also affirmed the trial court's decision.

On July 20, 1994, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The Commonwealth moved to dismiss the petition for failure to exhaust all available state court proceedings on the issue of the admission of certain controversial testimony at trial. The Commonwealth noted that the appeal from the denial of petitioner's Rule 60.02(f) motion regarding this testimony was pending in the Kentucky Court of Appeals and requested that the petition be dismissed without prejudice.

On September 22, 1994, a federal magistrate judge advised the district court in a Report and Recommendation that the Commonwealth's request should be granted. The district court entered a judgment adopting the magistrate judge's report on October 18, 1994, and this Court affirmed the district court's denial of a certificate of probable cause to appeal on January 23, 1995. On November 21, 1996, all available state court proceedings were exhausted pertaining to the issue of the controversial testimony when the Supreme Court of Kentucky denied Brown's petition for rehearing and its earlier opinion became final.

Petitioner's current petition for writ of habeas corpus was filed on February 12, 1997. In response, the Commonwealth filed a Motion for Summary Judgment.

The district court adopted, as its decision, the Report and Recommendation of the magistrate judge in which he construed the instant petition as a second or successive petition, concluded that such a filing constituted an abuse of the writ, and recommended dismissal of the petition. Petitioner asserts two points of error with respect to the conclusions of the magistrate judge. First, petitioner contends that the district court erred in sua sponte dismissing the petition for abuse of the writ because the instant petition does not constitute a second or successive petition. Second, petitioner claims that the district court erred in determining that the statute of limitations in the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA") is applicable to the petition. We find that the district court erred in dismissing the petition on procedural grounds.

The district court construed the petition as a second or successive petition because petitioner's initial application for writ of habeas corpus filed on July 20, 1994, was dismissed without prejudice for failure to exhaust the second issue on which petitioner sought habeas relief. In Carlson v. Pitcher, 137 F.3d 416 (6th Cir. 1998) we addressed the proper characterization accorded a second petition filed subsequent to a dismissal without prejudice for failure to exhaust.

We join with every other court to consider the question, and hold that a habeas petition filed after a previous petition has been dismissed on exhaustion grounds is not a "second or successive" petition implicating the pre-filing requirement of obtaining an order of authority from the court of appeals.

Carlson, 137 F.3d at 420.

Applying the holding of Carlson to the instant petition, we conclude that it is not a second or successive petition. The 1994 petition was dismissed without prejudice for failure to exhaust available state remedies. Petitioner subsequently exhausted his available state remedies on November 21, 1996 when the Supreme Court of Kentucky denied his petition for rehearing. Thus, the petition is not barred as a second or successive petition.

We further find that petitioner's application is not barred by the statute of limitations contained in the AEDPA. 28 U.S.C. 2244 provides:

(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 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 post-conviction 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.

28 U.S.C. 2244(d)(1). The district court, applying 28 U.S.C. 2244(d)(1)(A), concluded that petitioner's time for direct review expired on March 21, 1983, the date on which the Supreme Court denied review of the Kentucky Supreme Court's opinion affirming petitioner's conviction. We disagree and hold that the applicable statute of limitations under the AEDPA is one year from the effective date of the AEDPA, to wit April 24, 1996.

Courts have employed several approaches in applying the statute of limitations provisions of the AEDPA. Some courts have accepted a literal reading of the statute and applied the one-year period of limitations to all cases filed after the date of enactment of the statute. See United States v. Smith, 966 F. Supp. 408, 409 (E.D. Va. 1997) ("[T]he Court must measure one year from the most recent date provided by subsections (1) through (4) of Section 2255"); Clarke v. United States, 955 F. Supp. 593, 595 (E.D. Va. 1997). The Second Circuit has held that the Act requires petitions to be...