Griffin v. Rogers

• Decision Date: 03 March 2005
• Docket Number: No. 04-3302.,04-3302.
• Parties: Sandra M. GRIFFIN, Petitioner-Appellant, v. Shirley ROGERS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

399 F.3d 626

Sandra M. GRIFFIN, Petitioner-Appellant, v. Shirley ROGERS, Warden, Respondent-Appellee.

No. 04-3302.

United States Court of Appeals, Sixth Circuit.

Argued: January 27, 2005.

Decided and Filed: March 3, 2005.

ARGUED: Stephen P. Hardwick, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Thelma Thomas Price, Office of the Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Stephen P. Hardwick, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Thelma Thomas Price, Office

of the Attorney General, Columbus, Ohio, for Appellee.

Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

Sandra Griffin filed a petition for habeas relief in April of 1997. In September of 1998, the District Court dismissed her petition without prejudice as she had not exhausted her state remedies. When she returned to federal court in October of 1999, her re-filed petition was dismissed as untimely pursuant to the one-year limitations period under 28 U.S.C. § 2244(d)(1). In 2002, this Court vacated the District Court's dismissal of Griffin's petition and remanded for further proceedings in order to determine whether the petitioner was entitled to equitable tolling. Griffin v. Rogers, 308 F.3d 647 (2002). In January of 2004, the District Court, adopting the Report and Recommendation of the Magistrate Judge, ruled that Griffin was not entitled to equitable tolling and dismissed the case for failure to file within the limitations period. Griffin timely appealed the District Court's dismissal.

In Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), this Court adopted a stay and abeyance procedure for habeas petitions that raise both exhausted and unexhausted claims. The exhausted portions of these petitions were to be stayed while the petitioner returned to state court. These stays were to be conditioned upon the petitioner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed. Also, in Palmer, this Court determined that it would be appropriate to apply these stays retroactively to petitioners like Griffin, whose claims were dismissed rather than stayed.

When this case was last before this Court, it was unclear whether Griffin had complied with the 30-day window that Palmer prescribes for pursuing state remedies after a federal dismissal. The record simply did not include that information. On remand, it was conceded that Griffin did not proceed to state court for over six months, well beyond the 30-day window suggested by Palmer. The District Court refused to equitably toll the limitations period as Griffin had not filed within the 30-day time frame. The only issue on appeal is whether the District Court was correct in rejecting Griffin's request for equitable tolling.

While Griffin is not entitled to the mandatory equitable tolling prescribed in Palmer, the District Court was incorrect to treat the 30-day window as a hard, retroactive deadline that precludes the court's consideration of her claims on the merits. Even if Griffin is not entitled to the automatic equitable tolling under Palmer, she is entitled to relief under this Court's traditional equitable tolling analysis. The dismissal of the District Court is therefore REVERSED and the petition is REMANDED for consideration on the merits.

I

This Court thoroughly summarized the factual and procedural history essential to Griffin's current appeal in its 2002 opinion:

In 1990, a trial judge in Ohio state court found Sandra Maxwell Griffin guilty of complicity to aggravated murder with specifications, complicity to unlawful possession of a dangerous ordnance, complicity to grand theft, and complicity to aggravated robbery with a firearm specification. Griffin then obtained new counsel and unsuccessfully appealed her case to the Ohio Supreme Court, arguing that the trial court had violated her Fifth, Eighth, and Fourteenth Amendment rights by not following certain state laws regarding her waiver of trial by jury or by three-judge panel and regarding the length of her sentence. She lost her appeals, and her conviction became final in 1992.

The Antiterrorism and Effective Death Penalty Act (AEDPA) became effective on April 24, 1996, and prisoners whose state convictions already had become final were required to file any petitions for habeas corpus relief within one year of that date. See Isham v. Randle, 226 F.3d 691, 693 (6th Cir.2000), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001). Represented by the Ohio Public Defender's Office, Griffin filed for habeas corpus relief on April 22, 1997. The petition was assigned to Judge Holschuh. Although in her initial petition Griffin raised just one ground for relief, namely the trial court's failure to follow "mandatory statutory requirements of a proceeding" in violation of her due process and equal protection rights, J.A. at 16, in her reply to the warden's return of writ she expanded her claims. Griffin argued that her waiver of trial by jury or by a three-judge panel, as provided under Ohio law, was neither knowing nor intelligent and that her sentence exceeded that permitted under law. The district court determined that these were "clearly distinct from the argument that she presented to the state courts," noted that the new arguments "appear to have been procedurally defaulted," and offered Griffin the opportunity to demonstrate cause and prejudice before the court would dismiss the claims as procedurally defaulted. J.A. at 66-68 (Dist. Ct. Order 3/16/98). Griffin argued that the cause of her failure to present the arguments in state court was her counsel's ineffective assistance.

Judge Holschuh ruled that, although ineffective assistance of appellate counsel can constitute cause for procedural default, the petitioner must present the ineffective assistance claim itself to the state courts before using it to excuse the default. Because Griffin had not brought that claim to the state courts, she could not yet present it to the federal court in a habeas petition. Judge Holschuh concluded, "If she wishes, at some point, to make such an [ineffective assistance] argument here, petitioner must present her claim of ineffective assistance of counsel to the state courts." J.A. at 99 (Dist. Ct. Order 9/30/98). On September 30, 1998, the court denied her petition and dismissed the case without prejudice for her failure "to establish cause for her procedural default." J.A. at 101.

308 F.3d at 649-50. After her habeas petition was dismissed, Griffin filed an Application to Reopen in state court pursuant to Ohio Rule of Appellate Procedure 26(B) in order to pursue her unexhausted ineffective assistance claim.

When this case was last before this Court, the record did not indicate when Griffin filed this Application to Reopen. The current record reflects that Griffin, represented by the Ohio Public Defender's Office, filed her Application to Reopen on April 14, 1999, approximately six and one half months after the District Court's dismissal on September 30, 1998. J.A. at 216 (Application for Reopening). This Application was dismissed as untimely by the Ohio Court of Appeals on May 24, 1999. J.A. 229 (Ohio Court of Appeals Judgment). The Ohio Supreme Court dismissed her appeal without opinion on September 22, 1999.

After the dismissal of her Application to Reopen, Griffin attempted to return to federal court to pursue her habeas petition:

Griffin then returned to Judge Holschuh, filing on October 15, 1999, a habeas petition under her previous case number. In her re-filing, she alerted the court to the fact that she was filing it "under the original case number," because it merely continued her previous attack. She also noted that, because her previous filing had been dismissed without prejudice to permit exhaustion, this subsequent filing was not a "second or successive" petition prohibited under 28 U.S.C. § 2244(b). J.A. at 102-03. In this petition, Griffin also included notice of the claims that she had brought in her state Application to Reopen. However, on Friday, October 22, Judge Holschuh ordered the clerk to strike Griffin's new filing under the previous case number and directed the clerk to file it with a new case number and assign it to a judge using the "ordinary selection process." J.A. at 118 (Dist. Ct. Order 10/22/99). Judge Holschuh noted that because the previous case had closed and the petitioner had offered no grounds to reopen the previous case, the petition should be filed under a different case number, and the district judge to which it would then be assigned should consider independently whether to entertain the petition or reject it as a second or successive petition. Judge Holschuh stated that "[t]he assignment or non-assignment of a new civil number to a case is obviously not conclusive on the issue of whether the petitioner is entitled to file a second habeas corpus petition," and "[n]othing in this order is intended to convey any opinion as to whether the new petition is or is not a successive petition or has otherwise been properly filed." J.A. at 117-18.

Griffin re-filed her second petition on Monday, October 25, and it was given a new case number and assigned to Judge Smith. After briefing, Judge Smith dismissed the action for failure to file within the one-year limitation period for § 2254 actions. The district court noted that when Griffin filed her first habeas petition on April 22, 1997, two days before the one-year deadline was to have run, 363 days of her statute of limitations had lapsed. That petition had been dismissed on September 30, 1998. Without knowing the actual date of her state court filing, the district court assumed that Griffin immediately filed her state court application and that...