Boston v. Weber

• Decision Date: 08 May 2008
• Docket Number: No. 07-2222.,07-2222.
• Citation: 525 F.3d 622
• Parties: Samuel W. BOSTON, Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary; Larry Long, Attorney General, State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

525 F.3d 622

Samuel W. BOSTON, Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary; Larry Long, Attorney General, State of South Dakota, Appellees.

No. 07-2222.

United States Court of Appeals, Eighth Circuit.

Submitted: January 16, 2008.

Filed: May 8, 2008.

Kenneth R. Dewell, argued, Robert W. Van Norman, on the brief, Rapid City, SD, for appellant.

Gary Campbell, AAG, argued, Pierre, SD, for appellee.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Samuel W. Boston appeals the district court's¹ order dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254 as untimely. We affirm.

I. BACKGROUND

A jury convicted Boston of second-degree murder, and he was sentenced to life in prison without the possibility of parole. The South Dakota Supreme Court affirmed the conviction on June 11, 2003. Boston did not seek a writ of certiorari to the United States Supreme Court before the ninety days allowed for filing such a writ expired on September 9, 2003. See Sup.Ct. R. 13. He filed an application for state habeas relief on January 15, 2004. The state circuit court dismissed Boston's habeas application. On January 7, 2005, the South Dakota Supreme Court denied Boston's motion for a certificate of probable cause to appeal the circuit court's denial of his habeas application.

Boston filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court on December 20, 2005. The State did not argue that Boston's petition was untimely, and the magistrate judge's Findings and Recommendations contended that "[t]he petitioner's federal writ of habeas corpus was filed within one year of the state Supreme Court order denying his motion for an appeal. Therefore, the one year statute of limitations has been met." The magistrate judge recommended that Boston's habeas petition be denied on the merits. Boston filed objections in the district court.

The district court sua sponte ordered the parties to address whether Boston's petition was time barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. The State then filed a motion to dismiss the petition as untimely, and Boston filed a response in opposition to the motion. The district court dismissed Boston's petition finding that it was time barred under AEDPA. Alternatively, the district court concluded that, even if timely, the petition should be dismissed because it was a mixed petition, one that included both exhausted and unexhausted claims. The district court granted a certificate of appealability on the following three issues: (1) whether the petition was timely filed under AEDPA; (2) whether the State intelligently waived the AEDPA statute of limitations defense; and (3) whether the petition raised issues that were not exhausted at the state level. Boston now appeals on all three grounds.

II. DISCUSSION

A. Timeliness under AEDPA

We review the district court's decision to dismiss a § 2254 habeas petition based on the AEDPA statute of limitations de novo. O'Neal v. Kenny, 501 F.3d 969, 970 (8th Cir.2007), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 15, 2008). AEDPA requires a state prisoner seeking a writ of habeas corpus to file his federal petition within one year after "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). When the state court of last resort enters a judgment in a direct criminal appeal and the petitioner does not seek a writ of certiorari, the judgment is final at the conclusion of the ninety days allowed by the Supreme Court for the filing of such a writ. Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853 (8th Cir.2003). In this case, the judgment was final on September 9, 2003.

The AEDPA statute of limitations is tolled for "[t]he 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...." 28 U.S.C. § 2244(d)(2). In Painter v. Iowa, we held "that the time between the date that direct review of a conviction is completed and the date that an application for state post-conviction relief is filed counts against the one-year period." 247 F.3d 1255, 1256 (8th Cir. 2001). Boston filed his state habeas application on January 15, 2004, 127 days after the state judgment became final on September 9, 2003. Applying the rule in Painter, these 127 days count against the one-year AEDPA limitation period. When the South Dakota Supreme Court denied his motion for certificate of probable cause on January 7, 2005, Boston had 238 days or until September 2, 2005, to file his federal habeas petition. However, Boston filed his federal habeas petition on December 20, 2005, more than three months after the AEDPA statute of limitations had expired.

Nonetheless, Boston argues that his federal habeas petition is timely because the Supreme Court's decision in Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), and our circuit's post-Saffold decisions in Curtiss, Williams v. Bruton, 299 F.3d 981 (8th Cir.2002), and Wright v. Norris, 299 F.3d 926 (8th Cir.2002), have implicitly overruled Painter. Boston asserts that

as long as the right to file a state habeas petition exists the petition is `pending' if the one year statute of limitations (the AEDPA rule) has not expired. When the state petition is then actually filed in the state habeas proceeding the entire block of time—from the date of the conclusion of the direct appeal and the date of the filing of the South Dakota Supreme Court denial of a certificate of an appealable issue—is included as `pending' as long as one calender year has not then elapsed, therefore the AEDPA is tolled during that time.

Reply Br. for Appellant at 4. Essentially, Boston argues for retroactive tolling which effectively means the AEDPA statute of limitations would not begin to run until after the conclusion of the state habeas proceedings so long as the state habeas application is filed within one year of the judgment becoming final. Because Boston's state habeas application was filed within one year of the judgment becoming final, Boston contends that the AEDPA statute of limitations for his federal habeas petition expired on January 7, 2006, a year after the South Dakota Supreme Court denied his motion for certificate of probable cause. As a result, he claims his federal habeas petition filed on December 20, 2005, is timely. We disagree.

First, Boston's reliance on Saffold is misplaced. In Saffold, the Supreme Court held that, upon filing a state habeas application, the application is "pending" until the completion of the state collateral review process. 536 U.S. at 219-21, 122 S.Ct. 2134. Saffold does not support Boston's argument because it did not address the time period between the date the judgment became final and the date of filing an application for state collateral review. To extend Saffold to exclude this time period as Boston seeks would thwart AEDPA's purpose to "reduce delays in the execution of state and federal criminal sentences," Rhines v. Weber, 544 U.S. 269, 276, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (quotation omitted), without furthering the goals of "comity, finality, and federalism," Saffold, 536 U.S. at 220, 122 S.Ct. 2134 (quotation omitted).

The Supreme Court also did not apply such retroactive tolling in its subsequent decision in Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). Day filed his application for state post-conviction relief 353 days after the state judgment became final, and he filed his federal habeas petition thirty-six days after the state appellate court denied state post-conviction relief. Id. at 203, 126 S.Ct. 1675. Although the issue before the Court was whether the district court could raise the timeliness issue sua sponte, Day's petition clearly would have been timely if the 353 days were excluded from the AEDPA one-year limitation period. Nonetheless, the Court affirmed the dismissal of Day's habeas petition as untimely, thereby implicitly adopting our rule in Painter. Id. at 211, 126 S.Ct. 1675.

Second, Boston's reliance on Wright, Williams and Curtiss is equally misplaced. In Wright, we held that the federal habeas petition was untimely after "assum[ing] without deciding that state post-conviction proceedings in Arkansas remain pending, ... for the eighteen month period when the Supreme Court of Arkansas will entertain a motion for a belated appeal of the denial of state post-conviction relief." 299 F.3d at 928. In Williams, we determined that an application for state post-conviction relief "is `pending' (and thus the limitations period is tolled) during the appeal period, even if the petitioner does not appeal [the denial of his application to a higher state court]." 299 F.3d at 983. In Curtiss, we held that Curtiss's federal habeas petition was untimely when he filed his state habeas application more than one year after the judgment became final. 338 F.3d at 855. As we stated in Curtiss, "[n]either Williams nor Wright provides support for [the petitioner's] contention that Painter has been abrogated." Id. These cases simply do not support the retroactive tolling rule that Boston asserts. Rather, our circuit has continued to recognized the validity of the Painter rule. See Runyan v. Burt, 521 F.3d 942, (8th Cir.2008) (finding a federal habeas petition untimely by including in the AEDPA one-year limitation period the time between the judgment becoming final and the filing of the state habeas application even though the state habeas application was filed within one-year of the judgment becoming final).

Indeed, our rule in Painter is consistent with the plain language of 28 U.S.C. § 2244, which states that the "limitation period shall run from ... the date on...