250 F.3d 1001 (6th Cir. 2001), 99-6456, Dunlap v United States

Docket Nº:99-6456
Citation:250 F.3d 1001
Party Name:Horace Lee Dunlap, Petitioner-Appellant, v. United States of America, Respondent-Appellee.
Case Date:May 07, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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250 F.3d 1001 (6th Cir. 2001)

Horace Lee Dunlap, Petitioner-Appellant,


United States of America, Respondent-Appellee.

No. 99-6456

United States Court of Appeals, Sixth Circuit

May 7, 2001

Argued: March 7, 2001

Rehearing Denied May 30, 2001

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 99-00334, Thomas A. Higgins, District Judge.

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Patrick T. McNally, HOLLINS, WAGSTER & YARBROUGH, Nashville, Tennessee, for Appellant.

Harold B. McDonough, Asst., U.S. Attorney, Van S. Vincent, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

Before: KEITH, SILER, and CLAY, Circuit Judges.

CLAY, Circuit Judge.


Petitioner, Horace Lee Dunlap, appeals from the district court's dismissal of his habeas petition, filed pursuant to 28 U.S.C. § 2255, as untimely. The district court issued a certificate of appealability specifically on the question of whether equitable tolling applies to the one-year period of limitation in habeas cases, and whether, in any event, equitable tolling would be applicable in Petitioner's case. For the reasons that follow, we conclude that equitable tolling does apply to the one-year limitation period applicable to habeas petitions, but AFFIRM the district court's order dismissing Petitioner's habeas petition inasmuch as Petitioner has failed to demonstrate that equitable tolling is appropriate in his case.


Petitioner was indicted on October 25, 1995 in the United States District Court for the Middle District of Tennessee. The indictment charged Petitioner in counts one and two with violating 18 U.S.C. § 922(g)(1), which criminalizes the possession of a firearm by a convicted felon; in count three of the indictment, Petitioner was charged with possessing a firearm with an obliterated serial number in violation of 18U.S.C. §§ 922(k), 924(a)(1)(B). Petitioner was tried and convicted of counts one and two of the indictment; count three was dismissed on motion of the government. Petitioner was thereafter sentenced to concurrent life sentences on counts one and two of the indictment and five years of supervised release on each count, to run concurrently.

On direct appeal, this Court affirmed his conviction on January 15, 1998; the Court's mandate issued on February 9, 1998. United States v. Dunlap, No. 96-6378, 1998 WL 24997 (6th Cir. Jan. 15, 1998) (per curiam).

Prior to this Court's decision in Petitioner's direct appeal, Petitioner, on March 21, 1997, filed a pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. On March 27, 1997, the district court dismissed Petitioner's action without prejudice because his underlying conviction was not yet final. After the dismissal of the first petition, Petitioner filed a second pro se petition on March 28, 1997. Again the district court dismissed the action without prejudice because his direct appeal was still pending before this Court.

On April 13, 1999, Petitioner filed a third habeas petition. On May 4, 1999, the government filed a motion to dismiss or, in the alternative, for an extension of time to respond. In its motion to dismiss, the government argued that Petitioner's habeas petition was untimely because it was filed more than one year after his conviction became final, which was February 9, 1998.

Counsel was appointed to represent Petitioner on May 5, 1999. Thereafter, Petitioner's counsel filed a response to the government's motion to dismiss.

The district court referred the matter to a magistrate judge, the Honorable Joe B. Brown, who, on September 21, 1999, issued a Report and Recommendation in which he recommended that the habeas petition be dismissed because it was time-barred by the one-year limitation period prescribed by 28 U.S.C. § 2255. The district court overruled Petitioner's objections to the Report

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and Recommendation and adopted it in its entirety. On October 12, 1999, the district court dismissed Petitioner's habeas petition with prejudice.

Petitioner filed a timely notice of appeal. The district court granted a certificate of appealability on November 29, 1999, to address the issue of whether equitable tolling is applicable to the one-year limitation period under § 2255 and whether equitable tolling would be appropriate in the instant case.



We review the district court's decision to grant or deny a writ of habeas corpus de novo; however, the district court's factual findings will not be disturbed unless they are clearly erroneous. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir. 2000). Questions of statutory construction are also reviewed de novo. Jordan v. Mich. Conference of Teamsters Welfare Fund, 207 F.3d 854, 858 (6th Cir. 2000).

The question now before this Court is whether the one-year limitation period applicable to § 2255, and similarly § 2254, habeas petitions is a statute of limitations subject to equitable tolling or a jurisdictional prerequisite which bars review by the federal courts if it is not satisfied. Although we have encountered this question before, we have yet to answer it definitively. See, e.g., Doran v. Birkett, No. 99-1639, 2000 WL 282882 (6th Cir. Mar. 13, 2000); Sluder v. United States, No. 98-5158, 1998 WL 940246 (6th Cir. Dec. 23, 1998). We now join our sister circuits that have to date addressed this issue and hold that the one-year limitation period is a statute of limitation. 1 Because there is a rebuttable presumption that equitable tolling applies to statutes of limitation and there is no indication that Congress did not intend for equitable tolling to apply to the limitation period in habeas cases, the one-year statute of limitations in § 2255 is subject to equitable tolling. See, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990).

Federal prisoners may file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255; however, the habeas petition is subject to a one-year period of limitation. Under §2255,

A [one]-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by government

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action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255.

To determine whether the limitation period in § 2255 is a statute of limitations or a jurisdictional requirement, we must consider the language of the statute, the legislative history and the statutory purpose. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). As most other circuits have concluded, these considerations make clear that Congress intended the limitation period to operate as a statute of limitation rather than a jurisdictional requirement.

In Zipes, the Supreme Court held that the requirement of filing a timely charge of discrimination with the EEOC was similar to a statute of limitations and was not a jurisdictional prerequisite. 455 U.S. at 393. In so holding, the Court noted that the provision granting the district court jurisdiction to entertain such cases contained no reference to the timeliness of filing an EEOC charge. Id. at 393-94. Instead, the timeliness of the filing requirement was addressed in another provision, which did not speak in jurisdictional terms. Id. at 394.

Similarly, the language of § 2255 supports the conclusion that the one-year limitation period is a statute of limitations. The statute itself provides that the time period is a "period of limitation;" the statute does not use the term jurisdiction or otherwise speak in jurisdictional terms. 28 U.S.C. § 2255; accord Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999); cf. Harris v. Hutchinson, 209 F.3d 325, 329 (4th Cir. 2000). Moreover, the statutory scheme gives the district court jurisdiction to hear habeas cases in a portion of the statute divorced from the limitations provision. See 28 U.S.C. §2255;Sandvik, 177 F.3d at 1271. As with the language of the statute in Zipes, the language of the limitation period in the instant case supports the conclusion that the period operates as a statute of limitations and not a jurisdictional bar.

In addition, the legislative history behind the one-year period of limitation indicates that Congress intended the period to operate as a statute of limitations rather than a jurisdictional bar. For instance, the Conference Report does not indicate that the one-year period of limitation is a jurisdictional requirement. The report simply provides that the section "sets a one year limitation on an application for a habeas writ" in order to "curb the abuse of the statutory writ of habeas corpus, and to address the acute problems of unnecessary delay and abuse in capital cases." H.R. Conf. Rep. No. 518, 104th Cong., at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944 (1996). On the other hand, as the cases addressing this issue have chronicled, the statements of several of the members of Congress make clear that the limitation period was intended to function as a statute of limitations and did...

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