Adams v. Lemaster, No. 99-2348

• Citation: 223 F.3d 1177
• Decision Date: 18 August 2000
• Docket Number: No. 99-2348
• Parties: (10th Cir. 2000) DANIEL EVANS ADAMS, Petitioner-Appellant, v. TIM LEMASTER, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1177

223 F.3d 1177 (10th Cir. 2000)

DANIEL EVANS ADAMS, Petitioner-Appellant, v. TIM LEMASTER, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees.

No. 99-2348

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 18, 2000

Appeal from the United States District Court for the District of New Mexico D.C. No. CIV 97-1017) Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, New Mexico, for Petitioner-Appellant.

Anthony Tupler (Patricia A. Madrid, Attorney General, with him on the brief), Assistant Attorney General, Santa Fe, New Mexico, for Respondents-Appellees.

Before TACHA, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This appeal involves the proper application of the tolling provision of the one-year statute of limitations for habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, we must determine if the prison mailbox rule, as articulated in Houston v. Lack, 487 U.S. 266 (1988), applies to prisoners requesting state post-conviction relief in New Mexico. We hold the rule does not apply, and affirm the dismissal of this habeas corpus petition as time-barred.

BACKGROUND

This habeas petition is before us a second time. See Adams v. LeMaster, 172 F. 3d 62, 1999 WL 80381 (10th Cir. Feb. 17, 1999) (unpublished decision). Because we issued our initial disposition through an unpublished order and judgment, we will repeat the relevant facts here, borrowing generously from our earlier work.¹

Following a bench trial, the trial judge found Mr. Adams guilty of first degree kidnaping, second degree criminal sexual penetration and attempted second degree murder. Mr. Adams' conviction became final after the New Mexico Supreme Court denied his petition for writ of certiorari in January 1988. Later that same year, a state district court denied Mr. Adams' first state habeas petition. Mr. Adams filed a second state habeas petition in April 1997, the timing of which creates the dispute underlying this case.

Mr. Adams, acting pro se, mailed the petition to the state district court on April 12, 1997. While Mr. Adams claims the district court received the petition by April 16, the clerk of court file-stamped the petition April 22, 1997. The district court dismissed the second state petition with prejudice, and the New Mexico Supreme Court denied Mr. Adams' petition for certiorari on July 21, 1997. Pursuant to 28 U.S.C. § 2254, Mr. Adams then mailed his pro se federal habeas petition to the United States District Court for the District of New Mexico on July 30, and the clerk file-stamped the petition August 1, 1997. Adopting a magistrate judge's recommendation, the district court dismissed Mr. Adams' petition as untimely. In doing so, neither the district court nor the magistrate judge addressed Mr. Adams' contention that pursuant to Houston v. Lack, his second state petition was "filed" when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams' federal habeas petition timely. We granted a certificate of appealability, vacated the district court's order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams' federal petition untimely. We granted a certificate of appealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal.

DISCUSSION

Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). "A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams' federal petition. However,

[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595, 1604 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have "two components, one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Id. Because the district court did not reach the merits of Mr. Adams' petition, and our certificate of appealiability is confined to the procedural issue of timeliness, we must examine Mr. Adams' underlying constitutional claims. After reviewing the claims and the record on appeal, we hold "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right" and grant a certificate of appealability as to Mr. Adams' claim that sentencing him on both the kidnaping and criminal sexual penetration convictions violated the double jeopardy clause.² Having determined Mr. Adams meets this threshold standard, we turn to the timeliness of his federal habeas petition.

The Antiterrorism and Effective Death Penalty Act of 1996 includes a one-year statute of limitations for state prisoners to file an application for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). Because Mr. Adams' state convictions became final in 1988, well before the passage of the Antiterrorism and Effective Death Penalty Act, he had one year from the enactment of the Act to seek federal habeas relief. See Barnett v. LeMaster, 167 F.3d 1321, 1322 (10th Cir. 1999); Miller v. Marr, 141 F.3d 976, 977 (10th Cir.) (citing United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997)), cert. denied, 525 U.S. 891 (1998). Therefore, Mr. Adams was required to file his application prior to April 24, 1997 in order to beat the statute of limitations. Miller, 141 F.3d at 977. However, the limitations period is tolled during the pendency of state post-conviction review: "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)(2) (emphasis added). The question presented here is how do we determine when a state petition for post-conviction relief is "properly filed"?

The parties agree Mr. Adams' period of limitation was tolled from the time he filed his second state petition until July 21, 1997, when the New Mexico Supreme Court denied certiorari. See Barnett, 167 F.3d at 1323. Nor do the parties dispute Mr. Adams "filed" his federal petition on July 30, 1997, when he placed the petition in the care of prison officials via the prison mail system. See Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (citing Houston, 487 U.S. at 270). Thus, nine days elapsed from the end of the tolling period until Mr. Adams filed his federal petition. If we determine Mr. Adams filed his state petition when he mailed it on April 12, 1997, as is done for federal petitions, the tolling period commenced eleven days prior to the April 23, 1997 statute of limitations deadline. Therefore, Mr. Adams had eleven days from the end of the tolling period, or until August 1, 1997, to file his federal petition, and his petition filed July 30, 1997 was timely. However, if we determine Mr. Adams' state petition was filed when allegedly received by the district court clerk on April 16, 1997, or when file-stamped on April 22, 1997, Mr. Adams had from one to seven days after the tolling period, or until July 28 at the latest, to file his federal petition. Thus, his federal petition filed July 30, 1997 would be untimely.

On remand, we asked the district court to determine if "the mailbox rule of Houston v. Lack applies, for purposes of § 2244(d)(2) tolling, to filings of state habeas petitions." See Adams, 1999 WL 80381, at *3. The district court referred the question to a magistrate judge, who issued a recommended disposition which the district court subsequently adopted. Unfortunately, the magistrate and the district court answered an ancillary question to the one we posed, focusing instead solely on whether the New Mexico courts apply the mailbox rule to state habeas petitions. On appeal, Mr. Adams correctly points out the district court skipped an important step in its analysis. Before turning to an interpretation of state law, the district court should have determined if federal procedural law supplies the definition of a "properly filed" state petition for purposes of § 2244(d)(2). We undertake that analysis now and hold federal law does not apply.

Congress did not provide guidance on the meaning of a "properly filed application" under § 2244(d)(2). See Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000); see also Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999) (relying on legislative history and plain meaning of § 2244(d)(2)). However, we have clearly held, as has every one of our sister circuits, that state procedural law must govern when determining whether a state petition is "properly filed." "We believe that a 'properly filed' application is one filed according to the filing requirements for a motion for state post-conviction relief. These...