557 F.3d 960 (8th Cir. 2009), 07-3430, Streu v. Dormire

Docket Nº:07-3430.
Citation:557 F.3d 960
Party Name:Larry STREU, Appellant, v. Dave DORMIRE, Appellee.
Case Date:February 26, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 960

557 F.3d 960 (8th Cir. 2009)

Larry STREU, Appellant,

v.

Dave DORMIRE, Appellee.

No. 07-3430.

United States Court of Appeals, Eighth Circuit.

February 26, 2009

Submitted: Oct. 14, 2008.

Page 961

Elizabeth Unger Carlyle, Columbus, MS, argued, for appellant.

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

Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Larry Streu appeals the district court's dismissal of his petition for writ of habeas corpus as untimely. Reviewing the dismissal de novo, see Boston v. Weber, 525 F.3d 622, 624 (8th Cir.2008), we reverse and remand for further proceedings.

Under the federal Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), a state prisoner has one year from the date on which his judgment of conviction becomes final to seek federal habeas corpus relief. 28 U.S.C. § 2244(d)(1)(A). This one-year statute of limitations is tolled, however, during the time in which " a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment ... is pending." Id. § 2244(d)(2). The main questions presented in this appeal are whether a motion to reopen state post-conviction proceedings in Missouri is an " application for State post-conviction or other collateral review" within the meaning of the tolling provision, and if so, whether the application is " pending" after

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the time for appealing a denial of the motion to reopen has expired, but before the prisoner files a motion for leave to file an untimely appeal that is later granted.

I.

In 2000, Streu was convicted in Missouri circuit court of first-degree murder and sentenced to life in prison without parole. The Missouri Court of Appeals affirmed the judgment on September 25, 2001, and denied Streu's motion for rehearing on October 30, 2001. State v. Streu, 59 S.W.3d 39, 39 (Mo.Ct.App.2001). Because Streu did not seek transfer of his case to the Supreme Court of Missouri, the judgment became final, and AEDPA's one-year statute of limitations began to run, when the court of appeals issued its mandate on November 21, 2001. See 28 U.S.C. § 2244(d)(1)(A); Riddle v. Kemna, 523 F.3d 850, 856 (8th Cir.2008) (en banc).

On February 4, 2002, Streu filed a timely motion for post-conviction relief under Missouri Supreme Court Rule 29.15, alleging ineffective assistance of trial counsel. By that date, AEDPA's statute of limitations had run for 75 days. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir.2001) (" [T]he 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." ). The circuit court denied Streu's Rule 29.15 motion, and the court of appeals issued its mandate affirming the denial on May 26, 2005. See Streu v. State, 161 S.W.3d 382 (Mo.Ct.App.2005). The parties do not dispute that Streu's Rule 29.15 motion was " a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment," or that the one-year period was tolled during the time the motion was pending in Missouri court. Thus, on May 26, 2005, when the court of appeals issued its mandate, the statute of limitations still had run for 75 days.

The statute of limitations ran for an additional 109 days, bringing the total to 184, by the time Streu filed a motion to reopen state post-conviction proceedings on September 12, 2005. The motion to reopen, which alleged abandonment by post-conviction counsel, was denied by the circuit court on September 27, 2005. Streu claims that he was not notified of the court's order of denial, and was therefore not aware of the deadline for filing a notice of appeal. The time for filing a notice of appeal expired on November 7, 2005. See Mo. Sup.Ct. R. 44.01(a), 81.04(a), 81.05(a).

Eventually realizing what had happened, Streu filed a motion for leave to file a notice of appeal out of time on March 3, 2006-116 days after the original deadline had passed. On March 14, 2006, Streu's motion for leave was granted, and on March 31, 2006, he properly filed a notice of appeal. The Missouri Court of Appeals subsequently affirmed the denial of Streu's motion to reopen post-conviction proceedings, issuing its mandate on January 24, 2007. See Streu v. State, 209 S.W.3d 556 (Mo.Ct.App.2007). On April 17, 2007-83 days later-Streu filed an application for federal habeas relief by placing it in a prison mailbox. See Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th Cir.1999) (en banc) (" [A] pro se prisoner's petition for a writ of habeas corpus is filed on the date it is delivered to prison authorities for mailing to the clerk of the court." ), overruled on other grounds by Riddle, 523 F.3d 850.

The district court dismissed Streu's habeas petition as barred by AEDPA's one-year statute of limitations. Had the district court counted only the 184 untolled days before Streu filed his motion to reopen and the 83 untolled days after the denial of that motion became final, Streu's petition would have been timely. The district court, however, also counted the 499 days between Streu's filing of the motion

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to reopen on September 12, 2005, and the court of appeals' issuance of its mandate affirming the denial of that motion on January 24, 2007. We granted Streu a certificate of appealability on the question " whether the statute of limitations was tolled during the pendency of Streu's motion to reopen his post-conviction proceedings." Because there is no dispute that Streu's motion to reopen was " properly filed," the answer turns on whether the motion was an " application for State post-conviction or other collateral review with respect to the pertinent judgment." 28 U.S.C. § 2244(d)(2).

II.

A.

The State maintains that Streu's motion to reopen was not an " application for State post-conviction or other collateral review" with respect to Streu's conviction. According to the State, an application is one " for State post-conviction or other collateral review" only if it requests relief from the underlying conviction or sentence. Streu's motion to reopen, the State points out, requested only new proceedings in light of Streu's alleged abandonment by counsel during the initial round of post-conviction review. Even a successful motion to reopen, the State notes, would not have set aside Streu's conviction.

Adoption of the State's...

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