556 F.3d 717 (8th Cir. 2009), 07-3544, Earl v. Fabian

Docket Nº:07-3544.
Citation:556 F.3d 717
Party Name:Christopher J. EARL, Petitioner-Appellant, v. Joan FABIAN, Commissioner, Minnesota Department of Corrections, Respondent-Appellee.
Case Date:February 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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556 F.3d 717 (8th Cir. 2009)

Christopher J. EARL, Petitioner-Appellant,


Joan FABIAN, Commissioner, Minnesota Department of Corrections, Respondent-Appellee.

No. 07-3544.

United States Court of Appeals, Eighth Circuit.

February 23, 2009

Submitted: Oct. 14, 2008.

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[Copyrighted Material Omitted]

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Jarod M. Bona, argued, Minneapolis, MN, for appellant.

Kimberly Paker, AAG, argued, St. Paul, MN, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Christopher J. Earl filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1996), challenging his Minnesota conviction for aiding and abetting first degree murder. The district court dismissed the petition as untimely under the Antiterrorism and Effective Death Penalty Act (AEDPA) one year statute of limitations but granted a certificate of appealability (COA). Earl appeals, arguing that he is entitled to equitable tolling because the state failed to give him notice that his judgment of conviction had become final and alternatively that his petition was timely under 28 U.S.C. § 2244 (1996). We remand for an evidentiary hearing.


Earl was convicted of 10 counts of aiding and abetting first degree murder in 2004 and was sentenced to three consecutive life terms without the possibility of parole. For security reasons Earl was transferred by the Minnesota Department of Corrections

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(DOC) to serve his sentence in an undisclosed correctional facility in Florida.

Following his conviction, Earl filed a direct appeal to the Minnesota Supreme Court claiming that his confession should not have been admitted because the police had continued to question him after he invoked his right to counsel. On August 11, 2005, the supreme court affirmed the state trial court's conviction after concluding that Earl had knowingly and intelligently revoked the invocation of his right to counsel. The court observed, however, that " the suggestion by police [after Earl had requested counsel] that it was in [his] best interest to talk to them comes dangerously close to impermissible interrogation and should have been avoided...." State v. Earl, 702 N.W.2d 711, 720 (Minn.2005).

On the day the supreme court's affirming decision issued, Earl's counsel wrote him to report the result and indicated his intention to file a petition for rehearing (August 11, 2005 letter). Because the state would not disclose Earl's location, counsel was forced to rely on the DOC's assurance that it would forward the letter to Earl. Earl claims that he did not receive this August 11, 2005 letter notifying him that his appeal had been decided until March of 2006-a delay of approximately seven months.1

The supreme court denied Earl's petition for rehearing on September 1, 2005, and counsel wrote to Earl on September 6, 2005, to notify him of the decision and explain that Earl's conviction was now final. Once again counsel had to rely on the DOC to forward the letter to Earl. Earl claims that he did not receive the September 6, 2005 letter with his case file until September of 2006.2

In a letter dated March 6, 2006 Earl wrote his attorney the following:

I received your letters stating that my appeal prosses [sic] is over, but you're asking for a Rehearing. Does this mean it's over or still pending? If it is indeed over, will you please forward me all you have on my case so I may proceed with any avenues I may have left.... I'm trying to learn about the law, but Florida is different then [sic] Minnesota; But I'm triing [sic].

Earl contends that this letter was in response to his delayed receipt of counsel's August 11, 2005 letter informing him that his conviction had been affirmed. Earl's use of the plural " letters" is puzzling since counsel did not write to report that rehearing had been denied until September 6, 2005 and that letter was allegedly not received by Earl until September 2006. Since Earl's March 6 letter included his return address, counsel thereafter no longer needed to depend on the state to transmit his correspondence.

Counsel responded to Earl's March 6, 2006 letter one week later (March 13, 2006 letter). He summarized developments in the case for Earl, explaining that " [o]n August 17, I filed a petition for rehearing.... Unfortunately, the Court denied the petition on September 1. Judgment was officially entered on October 17, 2005. At that point, your appeal process in state court ended." Counsel indicated that the supreme court opinion, petition for rehearing, order denying rehearing, and official

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judgment were included and that in addition he would gather " all of the information I have about your case" but that it would " take a bit of time." Earl does not allege untimely receipt of this letter which would have given him notice in approximately March 2006 that his petition for rehearing had been denied on September 1, 2005.

On August 25, 2006 Earl wrote another letter to counsel which included the following:

I'm writing because you told me that you were sending me all of my case work, but I haven't gotten it or heard from you. It's been a few months since we talked about that. Can you please send my case work to me. At least the motion of discovery A.S.A.P., and any advise [sic] or footnotes you think might help me. Also I have request for [sic] Minnesota law here and was denied. If you have any suggestions on obtaining such law material so I may study myself, please let me know. Anything is better than nothing.

There is no additional correspondence in the record between Earl and his state public defender.

On January 4, 2007 Earl filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that his constitutional rights had been violated when the state introduced his videotaped confession at trial because it had been obtained after he invoked his right to counsel. The state filed a motion to dismiss Earl's habeas petition as untimely by 35 days under AEDPA's one year statute of limitations. Earl argued in response that under the circumstances of his case the AEDPA limitations period was enlarged by both equitable and statutory tolling. In support of this position, Earl argued: (1) that the state deprived him of notice that his judgment of conviction had become final by failing to deliver the August 11, 2005 letter for almost seven months, (2) that the state deprived him of his case file by failing to deliver counsel's September 6, 2005 letter until September of 2006, (3) that as a result of his 8:00 to 5:00 Monday through Friday prison employment, he had very limited access to the law library, and (4) that he had been denied access to Minnesota law during the entire time he was incarcerated in Florida.

After considering Earl's arguments the magistrate judge recommended that Earl's petition be denied as untimely:

The Court rejects Petitioner's argument that he is entitled to equitable tolling pursuant to 28 U.S.C. § 2244(d)(1)(B) or (D). Petitioner admitted that he had over two months after receiving his case materials [in September of 2006] to prepare and file a Petition in this Court before the statute of limitations expired. Such facts do not support a holding that equitable tolling is appropriate under either 28 U.S.C. § 2244(d)(1)(B) or (D).

The district court adopted the magistrate judge's report and recommendation without substantive comment.

Earl subsequently requested a COA in order to seek review of the district court dismissal of his habeas petition as untimely. Earl contended that he was " eligible for equitable tolling," and that in the alternative his habeas petition should have been construed as timely filed under § 2244(d)(1)(B) and (D). The district court granted the COA " to the extent Petitioner appeals the decision that his habeas corpus petition was submitted untimely."

The following dates have particular relevance to the parties' arguments on the tolling issues:

September 1, 2005-Minnesota Supreme Court denies Earl's petition for rehearing;

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November 30, 2005-Period to file petition for writ of certiorari with the United States Supreme Court expires and AEDPA one year limitation begins to run;

March, 2006-Earl allegedly first receives notice that his conviction has become final; if true, AEDPA would begin to run if statutory tolling applies under § 2244(d)(1)(B);

September, 2006-Earl claims case file received;

November 30, 2006-AEDPA statute...

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