Walker v. Norris

• Decision Date: 31 January 2006
• Docket Number: No. 05-1294.,05-1294.
• Citation: 436 F.3d 1026
• Parties: Mark Douglas WALKER, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

436 F.3d 1026

Mark Douglas WALKER, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 05-1294.

United States Court of Appeals, Eighth Circuit.

Submitted: October 11, 2005.

Filed: January 31, 2006.

Mark Douglas Walker, Calico Rock, AR, pro se.

Craig Lambert, argued, Little Rock, AR, for appellant.

Assistant Atty. Gen., Lauren Elizabeth Heil, argued, Little Rock, AR, for appellee.

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.

RILEY, Circuit Judge.

Mark Walker (Walker) filed an application for federal habeas corpus relief in the United States District Court for the Eastern District of Arkansas pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. The district court¹ dismissed the application as time barred under the AEDPA's one-year statute of limitations. This appeal followed. We affirm.

I. BACKGROUND

A jury convicted Walker of manslaughter, first degree battery, and leaving the scene of an accident. The Arkansas Circuit Court of Benton County sentenced Walker to 36 years' imprisonment. Walker's convictions were affirmed on direct appeal, and the Arkansas Supreme Court denied his petition for review on September 9, 1999.

Walker had sixty days from the date the Arkansas Supreme Court denied his petition for review to file a petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37. Ark. R.Crim. P. 37.2(c). Rule 37 describes who may file a petition and how a petition should be presented: "A petitioner in custody under sentence of a circuit court claiming a right to be released, or to have a new trial, or to have the original sentence modified... may file a verified petition in the court which imposed the sentence, praying that the sentence be vacated or corrected." Ark. R.Crim. P. 37.1. Rule 37 also specifies requirements as to the content, format, and length of the petition, and warns, "[p]etitions which are not in compliance with this rule will not be filed without leave of the court." Ark. R.Crim. P. 37.1(e).

On November 8, 1999, a pro se petition bearing Walker's name was filed in Arkansas Circuit Court of Benton County.² Walker's signature appeared on the "Petitioner, pro se" verification line; however, the notary verification lines were left blank. The signature of Walker's trial counsel, Chadd Mason (Mason), appeared on the "Respectfully submitted, _____, Petitioner, pro se" line. The petition asserted claims for ineffective assistance of counsel, erroneous jury instructions, prosecutorial misconduct, and improper admission of evidence. The petition also contained requests for in forma pauperis status and appointment of counsel. Appointed counsel filed an amended petition on June 23, 2000. The state moved to dismiss the petition arguing, inter alia, the circuit court lacked jurisdiction because Walker failed to have the original petition verified, and failed to file an amended petition within the sixty-day time limit pursuant to Rule 37.

The circuit court conducted an evidentiary hearing on the issue of verification, and questioned Walker about the preparation of his pro se petition. Walker testified, "I signed the back of the Rule 37 [petition] and also signed the part where it was supposed to be notarized," and sent the petition to Mason "to fill it all out and plus get it notarized." When asked about the notarization requirement, Walker said, "I told [Mason] that from what I found in the law library pertaining to stuff like this it said that in most cases [the petition] does need to be notarized and I told him what I found and he said, well, no, it didn't need to be notarized." Walker also testified he could have obtained a Rule 37 pro se petition at any time, and he knew there was a statute of limitations on filing a Rule 37 petition.

Mason testified he thought he still represented Walker when he agreed to file the Rule 37 petition. Mason recognized a conflict of interest existed since Walker asserted an ineffective assistance of counsel claim against Mason. Nonetheless, Mason said he felt he had a duty to help Walker complete the petition. Mason completed the petition based on Walker's written instructions. When asked about Walker's unverified signature, Mason said he had no legal basis to have Walker's signature notarized since Walker had not signed the petition in Mason's presence. Mason explained the filing deadline was Monday, November 8, 1999, but he received the materials from Walker shortly before or on the day the petition was due, leaving no time to return the petition to Walker for notarization.

On May 10, 2001, the circuit court dismissed Walker's petition with prejudice, concluding it lacked jurisdiction because Walker had not filed a verified petition within the Rule 37 deadline. The circuit court was dismayed at the behavior of Mason and Walker, and remarked that such conduct "underscores the reasoning behind the [Arkansas] Supreme Court's apparent strict enforcement of the [Rule 37] verification requirement." The circuit court entered its judgment on June 13, 2001. On June 13, 2002, the Arkansas Supreme Court affirmed, reasoning Rule 37's verification requirement is of substantive importance to prevent perjury and its deadline requirement is jurisdictional in nature. Walker v. State, No. CR 02-37, 2002 WL 1303387 (Ark. June 13, 2002) (unpublished) (citing Carey v. State, 268 Ark. 332, 596 S.W.2d 688, 689 (1980), and Porter v. State, 339 Ark. 15, 2 S.W.3d 73, 75 (1999)). The Arkansas Supreme Court concluded Walker's first petition was invalid because it lacked verification, and he did not file his second petition within the sixty-day time limit. Id.

On April 10, 2003, Walker filed a petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of counsel on direct appeal. The district court reasoned the Arkansas Supreme Court's determination was binding and, therefore, Walker's Rule 37 petition was not properly filed. The district court then found the statute did not toll during the pendency of Walker's state post-conviction relief proceedings. Adding ninety days to the date the Arkansas Supreme Court denied review of Walker's direct appeal, see Sup.Ct. R. 13.1, the district court determined Walker's state convictions became final on December 8, 1999. See Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th Cir.1999) (en banc) (holding a state court judgment becomes "final under § 2244(d)(1)(A) upon the expiration of his time to file a petition for a writ of certiorari"). Under the AEDPA's one-year statute of limitations, Walker's section 2254 filing deadline was December 8, 2000. See 28 U.S.C. § 2244(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."). Because Walker filed his section 2254 petition on April 10, 2003, the district court dismissed the petition as time barred.

On appeal, Walker argues Arkansas's verification ruling did not bar federal habeas review because the rule (1) was not firmly established at the time he filed his Rule 37 petition, (2) has not been followed regularly or applied consistently, (3) does not provide guidance as to what constitutes a properly verified petition, and (4) does not provide reasonable notice that notarization of the petition is jurisdictionally required. Alternatively, Walker argues he is entitled to equitable tolling of the statute. Walker submits sixteen Arkansas state court cases where the court reached the merits of unverified petitions as proof the rule is not consistently applied.

II. ANALYSIS

This court has "jurisdiction to review a district court's ruling on `preliminary procedural issues, such as [a] limitations question' [and] review[s] the district court's interpretation of the one-year AEDPA limitation provision de novo." Williams v. Bruton, 299 F.3d 981, 982 (8th Cir.2002) (quoting Nichols, 172 F.3d at 1070 n. 2). The AEDPA establishes a one-year statute of limitations for filing federal habeas corpus petitions which runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The statute of limitations is tolled, however while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2).

A. "Properly Filed" Under the AEDPA

The issue on appeal is whether Walker's state post-conviction relief petition, which was dismissed by the Arkansas Supreme Court as invalid, is nonetheless properly filed for purposes of the AEDPA. Based on Supreme Court precedent, we find it is not.

In Artuz v. Bennett, 531 U.S. 4, 5, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), the Supreme Court defined a "properly filed" state post-conviction relief petition under section 2244(d)(2):

An application is "filed," as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, 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.

(citations and footnote omitted).

After Artuz, the Supreme Court in Carey v. Saffold, 536 U.S. 214, 217, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), defined a "pending" state post-conviction relief petition under section 2244(d)(2). The Court determined a petition is pending during "the time between a lower state court's decision and the filing of a notice of appeal to a higher state court." Id. The Court intimated, if the state court ultimately determines the petition did not comply with the state...