523 F.3d 850 (8th Cir. 2008), 06-2542, Riddle v. Kemna

Docket Nº:06-2542.
Citation:523 F.3d 850
Party Name:Donald RIDDLE, Appellant, v. Mike KEMNA, Appellee.
Case Date:April 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 850

523 F.3d 850 (8th Cir. 2008)

Donald RIDDLE, Appellant,


Mike KEMNA, Appellee.

No. 06-2542.

United States Court of Appeals, Eighth Circuit.

April 8, 2008

Submitted: Sept. 26, 2007.

Appeal from the United States District Court for the Western District of Missouri.

Page 851

Eric C. Bohnet, Indianapolis, IN, argued, for appellant.

K. Lee Marshall, Kristi K. Wilhelmy, Kelly J. Hardy, Bryan Cave LLP, St. Louis, MO, for amicus curiae Missouri State Public Defender System, in support of appellant.

Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., on the brief), for appellee.


BENTON, Circuit Judge.

Donald D. Riddle filed a petition for habeas relief under 28 U.S.C. § 2254. The district court dismissed his petition as untimely by the one-year statute of limitations in 28 U.S.C. § 2244(d), enacted in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1217 ("AEDPA"). A panel of this court, by order, vacated the judgment of the district court and remanded. This court granted the State's motion for rehearing en banc, vacating the panel's order. Riddle argues that his petition was timely because he is entitled to a tolling of the statute of limitations equal to the 90-day period for filing for certiorari in the Supreme Court of the United States. Alternatively, he requests equitable tolling of the statute of limitations.

Page 852

This court has jurisdiction under 28 U.S.C. §§ 1291 and 2253, and reviews de novo the district court's interpretation of the law. Walker v. Norris, 436 F.3d 1026, 1029 (8th Cir. 2006). The court en banc now affirms in part, reverses in part, and remands.


A jury convicted Riddle of first degree robbery, armed criminal action, and first degree tampering. He received a life sentence, a consecutive 35-year sentence, and a concurrent seven-year sentence. The Missouri Court of Appeals issued its decision affirming his conviction on January 23, 2001, and its mandate on February 15, 2001. State v. Riddle, 35 S.W.3d 897 (Mo. Ct. App. 2001). Riddle did not file a motion for transfer to the Missouri Supreme Court, or a petition for writ of certiorari in the United States Supreme Court.

On May 4, 2001, Riddle filed a petition in state court for post-conviction relief. The Missouri Court of Appeals affirmed the denial of post-conviction relief on March 30, 2004. Riddle v. State, 129 S.W.3d 492 (Mo. Ct. App. 2004) (per curiam). The mandate issued on April 21, 2004.

The district court dismissed Riddle's petition for habeas corpus relief as untimely. The court ruled that his direct appeal became final on February 15, 2001, the date the Missouri Court of Appeals issued its mandate. The district court found Riddle's original deadline for filing for federal habeas relief was February 15, 2002. See Moore v. United States, 173 F.3d 1131, 1133-35 (8th Cir. 1999) (Fed. R. Civ. P. 6(a) applies to AEDPA statutes of limitations). The district court then correctly tolled the statute of limitations from May 4, 2001, until April 21, 2004, while the state post- conviction case was pending. See 28 U.S.C. § 2244 (d)(2); Payne v. Kemna, 441 F.3d 570, 571-72 (8th Cir. 2006) (Missouri post-conviction relief proceedings are pending under AEDPA until mandate issues); Lawrence v. Florida, __ U.S. __, 127 S.Ct. 1079, 1083, 166 L.Ed.2d 924 (2007) ("application for state postconviction review is therefore not 'pending' after the state court's postconviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari").

The district court concluded that February 3, 2005, was the deadline for Riddle's federal petition. Riddle did not verify his petition for federal habeas corpus relief until March 22, 2005, so the district court considered it at least 47 days late.1The district court did not credit Riddle the 90 days for filing for certiorari in the United States Supreme Court, which, if allowed, would make his petition timely.


Before 1996, there was no statute of limitations on requests for federal habeas relief. Clay v. United States, 537 U.S. 522, 528, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); see Rule 9(a) Governing Section 2254 Cases in the United States District Courts (effective 1977-2004) (discretionary dismissal was allowed if state was prejudiced by delay in filing habeas petition). For claims filed after April 24, 1996, there is a 1-year statute of limitations. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Page 853

A state inmate may file for habeas relief in the federal courts within one year, as relevant here, after the later of the date when 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). This is a matter of federal law. Clay, 537 U.S. at 531, 123 S.Ct. 1072 ("finality for the purpose of § 2244 (d)(1)(A) is to be determined by reference to a uniform federal rule"). The Courts of Appeals have uniformly interpreted "direct review" in § 2244(d)(1)(A) to encompass review of a state conviction by the Supreme Court. See id. at 528 n. 3, 123 S.Ct. 1072.

In this case, Riddle did not ask the Missouri Supreme Court to review his direct appeal. He argues that "the expiration of time for seeking [direct] review" still includes the 90-day period for seeking certiorari, asserting the United States Supreme Court could have reviewed the Missouri Court of Appeals decision in his direct appeal.

Supreme Court Rule 13.1 allows 90 days for filing a writ of certiorari in the United States Supreme Court. The Supreme Court can review only judgments of a "state court of last resort," or of a lower state court if the "state court of last resort" has denied discretionary review. See Sup. Ct. R. 13.1. See also 28 U.S.C. 1257(a) ("the highest court of a State in which a decision could be had"). The issue is which Missouri court is the state court of last resort.

Identifying the state court of last resort requires an examination of the particular state court procedures. See Costarelli v. Massachusetts, 421 U.S. 193, 195-97, 198-99, 95 S.Ct. 1534, 44 L.Ed.2d 76 (1975); Pugh v. Smith , 465 F.3d 1295, 1299-1300 (11th Cir. 2006). The Missouri Constitution says that the supreme court is "the highest court in the state," whose jurisdiction is "coextensive with the state." Mo. Const. art. V, § 2. The supreme court has "general superintending control over all courts and tribunals." Id.§ 4.1. "Supervisory authority over all courts is vested in the supreme court". Id. It has the duty to make rules governing "practice, procedure and pleading for all courts and administrative tribunals," and the power to assign any judge to any court. Id.§§ 5, 6.

The Missouri Supreme Court also has constitutional power to set rules for "transfer" - -how cases in the court of appeals are transferred to the supreme court. Id.§ 10. The supreme court, by rule, requires that an application to transfer first be filed in the court of appeals, before it may later be filed in the supreme court (the Missouri Constitution does not have this...

To continue reading