586 F.3d 1066 (8th Cir. 2009), 08-3107, Parmley v. Norris

Docket Nº:08-3107.
Citation:586 F.3d 1066
Opinion Judge:MELLOY, Circuit Judge.
Party Name:Phillip Eugene PARMLEY, Plaintiff-Appellant, v. Larry NORRIS, Director, Arkansas Department of Corrections, agent of Arkansas Department of Corrections, Defendant-Appellee.
Attorney:Michael Dudley Day, argued, Meriden, CT, for appellant. Christian Harris, AAG, argued, Little Rock, AR, Lauren E. Heil, AAG, on the brief, for appellee.
Judge Panel:Before MELLOY, GRUENDER, and BENTON, Circuit Judges. GRUENDER, Circuit Judge, dissenting.
Case Date:November 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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586 F.3d 1066 (8th Cir. 2009)

Phillip Eugene PARMLEY, Plaintiff-Appellant,

v.

Larry NORRIS, Director, Arkansas Department of Corrections, agent of Arkansas Department of Corrections, Defendant-Appellee.

No. 08-3107.

United States Court of Appeals, Eighth Circuit.

November 16, 2009

Submitted: Sept. 24, 2009.

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Michael Dudley Day, argued, Meriden, CT, for appellant.

Christian Harris, AAG, argued, Little Rock, AR, Lauren E. Heil, AAG, on the brief, for appellee.

Before MELLOY, GRUENDER, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

Philip Eugene Parmley, an Arkansas inmate convicted of possession of methamphetamine, appeals the district court's 1 order dismissing his petition for habeas corpus relief as untimely. This case presents the issue of which appellate court in Arkansas is the " state court of last resort." That determination controls when the statute of limitations commenced for Parmley's habeas petition. We hold that

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the Arkansas Court of Appeals is not a " state court of last resort," and therefore the statute of limitations began running immediately after the Arkansas Court of Appeals denied Parmley's motion for a rehearing. Accordingly, we affirm the district court's judgment.

I. Background

Parmley was convicted of possession of methamphetamine in the Circuit Court of Garland County, Arkansas. He was sentenced to thirty years in prison on September 25, 2002. The Arkansas Court of Appeals affirmed Parmley's conviction. Parmley v. Arkansas, No. CR03-71, 2004 WL 61045, at *7 (Ark.Ct.App. Jan.14, 2004). Thereafter, Parmley filed two pro se motions. First, he filed a petition for rehearing, which Arkansas Court of Appeals denied on May 19, 2004. Second, Parmley submitted a belated petition for review to the Arkansas Supreme Court. The clerk declined to file his petition because it was untimely. On May 20, 2004, the Arkansas Supreme Court denied Parmley's request to direct the clerk to file his belated motion for review. Parmley v. Arkansas, No. CR04-462, 2004 WL 1119923, at *1 (Ark. May 20, 2004). Parmley did not seek any further review of his direct appeal by the Arkansas Supreme Court or the U.S. Supreme Court. On July 9, 2004, Parmley petitioned for post-conviction relief in Arkansas state court pursuant to Arkansas Rule of Criminal Procedure 37.1. The Arkansas trial court denied Parmley relief under Rule 37.1. The Arkansas Supreme Court affirmed, Parmley v. Arkansas, No. CR05-141, 2006 WL 3239992 (Ark. Oct.5, 2006) (per curiam), and issued a mandate denying post-conviction relief on October 24, 2006.

On September 29, 2007, nearly 340 days after the Arkansas Supreme Court denied post-conviction relief, Parmley filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal district court. Parmley's habeas petition alleged ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. A magistrate judge 2 issued a report and recommendation, concluding that Parmley's conviction became final on May 19, 2004 when the Arkansas Court of Appeals denied Parmley's motion for rehearing on his direct appeal. Consequently, the limitations period was running for the time period immediately after the Arkansas Court of Appeals denied Parmley's appeal. When combined with the later gap of nearly 340 days, Parmley filed his petition beyond the 1-year statute of limitations for habeas corpus petitions. The district court adopted the magistrate's report and recommendation in its entirety, dismissing Parmley's habeas petition with prejudice because it was untimely. Parmley v. Norris, No. 6:07-cv-6082, 2008 WL 2561964, at *1.

On July 14, 2008, Parmley requested a certificate of appealability from the district court. The district court denied the certificate of appealability on September 5, 2008. Parmley timely appealed to this Court. On April 2, 2009, we granted Parmley's application for certificate of appealability to review the dismissal of Parmley's habeas petition.

Parmley presents two potential grounds for reversal. First, Parmley argues that his habeas petition was timely because the statute of limitations was tolled for 90 days following the Arkansas Court of Appeals' denial of his motion for rehearing. Ninety days represents the time allotted for

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Parmley to file a petition for writ of certiorari to the U.S. Supreme Court. See Sup.Ct. R. 13.1. Second, Parmley argues that the district court should have stayed his habeas petition pursuant to Rhines v. Weber, 544 U.S. 269, 275, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). This Court has jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We review for the district court's interpretation of law de novo. Walker v. Norris, 436 F.3d 1026, 1029 (8th Cir.2006).

II. Statute of Limitations

We must consider three time periods following the denial of Parmley's motion for rehearing by the Arkansas Court of Appeals: (1) the 50 day period immediately after May 19, 2004, and before Parmley filed a state post-conviction relief petition; (2) the time period that Parmley's state post-conviction relief petition was pending; and (3) the nearly 340-day period between the conclusion of state post-conviction relief proceedings and the commencement of this action. It is undisputed that the statute of limitations was tolled for the second period, see 28 U.S.C. § 2244(d)(2), and running for the third period. The parties disagree, however, on the first period. The district court held that the statute of limitations was running during that 50 day period, and therefore Parmley's habeas petition was untimely. Parmley argues that the statute of limitations did not begin running until after that 50 day period. It is undisputed that if Parmley is correct, his petition was timely. Thus, we must determine when the statute of limitation began running.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), a 1-year statute of limitations governs a state prisoner's petition for federal habeas corpus relief. 28 U.S.C. § 2244(d)(1). The relevant triggering date for the statute of limitations is " the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). This provision permits prisoners time to seek direct review in the U.S. Supreme Court. Smith v. Bowersox, 159 F.3d 345, 347-48 (8th Cir.1998). If a prisoner files a petition for certiorari, then his conviction becomes final upon " the completion or denial of certiorari proceedings before the United States Supreme Court." Id. at 348. If a prisoner does not petition the U.S. Supreme Court for review, then his conviction becomes final when the time for filing that petition expires, so long as the Supreme Court could have reviewed his direct appeal. Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir.2008). The time for filing a writ of certiorari in the U.S. Supreme Court is 90 days. Sup.Ct. R. 13.1. Therefore, the statute of limitations on a habeas petition begins running 90 days after a prisoner reaches the end of " all direct criminal appeals in the state system." Bowersox, 159 F.3d at 348. If, however, the Supreme Court lacked jurisdiction to review the direct appeal, then the statute of limitations begins to run immediately following the conclusion of the prisoner's direct appeal. Riddle, 523 F.3d at 855.

Parmley did not petition the U.S. Supreme Court for review, but he nonetheless argues that " the expiration of time for seeking [direct] review" of his conviction includes the 90-day period for seeking Supreme Court review. In Riddle v. Kemna, we held that the 90-day toll on the statute of limitations did not apply after a judgment by the Missouri Court of Appeals because U.S. Supreme Court review was unavailable. Id. at 854-55. Supreme Court review is limited to judgments of a " state court of last resort" or 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). Because the Missouri Court of Appeals was

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not the " state court of last resort," the 90-day toll was unavailable for the petitioner in Riddle . 523 F.3d at 855.

At first glance, this case appears to be the Arkansas version of Riddle. In both cases, the habeas petitioner appealed his conviction to the intermediate state court but did not timely petition the state supreme court for review.3 Further, the central issue in both cases is whether the intermediate state court is a " state court of last resort," and therefore whether " the expiration of time for seeking [direct] review" includes a 90-day period for seeking certiorari review after the intermediate state court's decision.

" Identifying the state court of last resort requires an examination of the particular state court procedures." Riddle, 523 F.3d at 853. The Arkansas Constitution vests the Arkansas Supreme Court-not the Court of Appeals-with broad jurisdiction, general authority, and rule-making powers. See Ark. Const. amend. 80, § 2(D)(1) (2001) (granting the Arkansas Supreme Court " statewide appellate jurisdiction" ); Id. § 4 (" The Supreme Court shall exercise general superintending control over all courts of the state...." ); Id. § 3 (" The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts...." ). Most importantly, the Arkansas Constitution establishes a hierarchy within the Arkansas judiciary: " There shall be a Court of Appeals which may have divisions thereof as established by Supreme Court rule. The Court of Appeals shall have such appellate jurisdiction as the Supreme Court shall by rule determine and shall be subject to the general superintending control of the Supreme...

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