Abela v. Martin

• Decision Date: 22 October 2003
• Docket Number: No. 00-2430.,00-2430.
• Citation: 348 F.3d 164
• Parties: Kevin Mark ABELA, Petitioner-Appellant, v. William MARTIN, Director, Michigan Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

348 F.3d 164

Kevin Mark ABELA, Petitioner-Appellant, v. William MARTIN, Director, Michigan Department of Corrections, Respondent-Appellee.

No. 00-2430.

United States Court of Appeals, Sixth Circuit.

Argued: March 26, 2003.

Decided and Filed: October 22, 2003. Pursuant to Sixth Circuit Rule 206

ARGUED: James Sterling Lawrence, (argued and briefed), Detroit, Michigan, for Appellant.

William C. Campbell, (argued and briefed), OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON BRIEF: James Sterling Lawrence, Detroit, Michigan, for Appellant.

William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Before: BOGGS, Chief Circuit Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, and ROGERS, Circuit Judges.

BOYCE F. MARTIN, JR., delivered the opinion of the court, in which DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ., joined. SILER, J. (pp. 173-174), delivered a separate dissenting opinion, in which BOGGS, C. J., BATCHELDER, GIBBONS, and ROGERS, JJ., joined.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

This action arises from a Michigan manslaughter conviction and subsequent petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court found the habeas petition timely filed but denied it on the merits. Kevin Mark Abela appealed that denial. A panel of this court heard argument in this case, but it declined to reach the merits. The panel held that under this court's rule in Isham v. Randle, 226 F.3d 691 (6th Cir.2000), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001), Abela's petition was not timely because the statute of limitations was not tolled by Abela's petition for writ of certiorari from the United States Supreme Court following post-conviction litigation in state court. The panel held that Abela's habeas petition was barred by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1). A majority of the active judges of this court having agreed to rehear the case en banc, we now hold that Abela's petition was timely filed.

Abela was convicted by a jury of voluntary manslaughter and carrying a concealed weapon on July 24, 1991. He was sentenced to a term of seven to fifteen years for voluntary manslaughter and a concurrent sentence of forty months to five years for carrying a concealed weapon.

Abela appealed his conviction on February 17, 1992, by raising three issues in the Michigan Court of Appeals. The Michigan Court of Appeals affirmed Abela's conviction and sentence in an unpublished disposition. People v. Abela, No. 144005 (Mich. Ct.App. July 22, 1994). The Michigan Supreme Court denied Abela's delayed application for leave to appeal these issues. People v. Abela, 448 Mich. 901, 533 N.W.2d 313 (1995).

On August 20, 1996, Abela filed a motion for relief from judgment in the Oakland County Circuit Court, raising six claims. The motion was denied "for lack of merit on the grounds presented." People v. Abela, No. 90-101083 (Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the same six issues on appeal to the Michigan Court of Appeals, which also denied leave to appeal and a motion to remand. People v. Abela, No. 200930 (Mich.Ct.App. July 22, 1997). On August 9, 1997, Abela again raised these six issues in his delayed application for leave to appeal to the Michigan Supreme Court, which likewise denied his petition. People v. Abela, 457 Mich. 880, 586 N.W.2d 923 (1998). On August 3, 1998, Abela filed a petition for certiorari with the United States Supreme Court, which was denied on October 19, 1998. Abela v. Michigan, 525 U.S. 948, 119 S.Ct. 374, 142 L.Ed.2d 309 (1998).

On April 26, 1999, before his parole term had ended, Abela sought a writ of habeas corpus pursuant to section 2254, raising the same claims as in his motion for relief from judgment (except for his claim regarding the trial court's decision to reconsider its dismissal of the concealed weapon charge). The district court issued a memorandum opinion and denied the petition for habeas relief on October 31, 2000. On December 28, 2000, the district court denied Abela's motion for a certificate of appealability.

Abela appealed his denial of the motion to this court. We granted his certificate of appealability on the issues before us on April 20, 2001.

Between August 20, 1996, and May 28, 1998, Abela sought state collateral relief in the Michigan trial, appellate, and high courts. The limitations period was clearly tolled during this period because Abela's state collateral relief motions were pending in the various state courts. See Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). In Carey, the Court held that "until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains `pending.'" Id. Thus, the key issue before us today is whether the one-year statute of limitations applicable to federal habeas corpus petitions is also tolled during the period in which a petitioner may seek, and the Supreme Court considers whether to grant, certiorari review of the denial of the petitioner's state collateral relief motion.

Title 28 U.S.C. § 2244(d)(1) provides a one-year period of limitations for people "in custody pursuant to the judgment of a State court" to file an application for a writ of habeas corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of this one-year period as follows: "The 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 shall not be counted toward any period of limitation under this subsection."

For prisoners whose convictions became final prior to April 24, 1996, the effective date of the Anti Terrorism and Effective Death Penalty Act, the one-year limitations period runs against them as of that date. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999). Abela's judgment of conviction became final prior to April 24, 1996, so his one-year limitations period began running on that date.

The Supreme Court recently concluded that a federal habeas corpus petition does not constitute "State post-conviction or other collateral review" in order to toll the one-year limitations period pursuant to section 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 182, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Significantly, for our purposes, the Court construed the phrase "State post-conviction or other collateral review" to mean "State post-conviction [review]" and "other State collateral review." Id. at 175-76, 121 S.Ct. 2120. Accordingly, the section 2241(d)(1) limitations period is not tolled while federal habeas corpus proceedings are pending, because federal habeas proceedings are neither "State post-conviction" nor "other State collateral review." Id. at 181-82, 121 S.Ct. 2120. Thus, the more narrow question presented here is whether a petition for writ of certiorari to the Supreme Court may constitute a "properly filed" and "pending" application for "State post-conviction [review]" or "other State collateral review" so as to toll the section 2244(d)(1) limitation period.

This Court's pre-Duncan decision in Isham v. Randle, 226 F.3d 691 (6th Cir. 2000), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001), upon which the panel opinion relied, dealt with the situation where a petitioner could have sought, but did not seek, certiorari review of his Ohio collateral review motion. We held that "the one year limitations period is not tolled during the ninety days in which defendant could have petitioned the Supreme Court for a writ of certiorari...." Id. at 692.

First, we reasoned, based on the statute's plain language, the word "State" in section 2244(d)(2) modifies "post-conviction or other collateral relief." Id. at 695. This court concluded that "[a] petition for certiorari to the United States Supreme Court is not `state post-conviction relief.' Neither is such a petition `other state collateral relief.'" Id. Thus, we decided, as had the Tenth Circuit, that "a petition for writ of certiorari to the United States Supreme Court is `simply not an application for state review of any kind.'" Id. (citing Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir.1999)). We also reasoned that our holding was bolstered by the fact that seeking certiorari in the United States Supreme Court is not a mandatory part of state court review, as it is not a prerequisite to pursuing habeas corpus. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Finally, we concluded that differences in section 2244(d)(1)(A) and section 2244(d)(2) suggest that Congress did not intend section 2244(d)(2) tolling to apply to potential Supreme Court review. Isham, 226 F.3d at 695. Specifically, section 2244(d)(1)(A) provides that the one-year limitations period begins to run 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," whereas Congress neglected to use similar language in section 2244(d)(2). Id.

The Supreme Court has decided cases since Isham that cast that case in a different light. As to Isham's first rationale, Duncan confirmed our interpretation that the word "State" in section 2244(d)(2) modifies "post-conviction or other collateral relief." 533 U.S. at 175-76, 121 S.Ct. 2120. As to Isham's second rationale, that petitioning for certiorari on the underlying conviction is not required in order to seek habeas corpus review, the Supreme Court's recent decision in Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1075, 155 L.Ed.2d 88 (2003), offers an analogy for the question before us. In that case, the Court determined that a federal criminal conviction becomes final, for the purposes of calculating the one-year time period in which to move to vacate pursuant to 28 U.S.C. § 2255, when the time expires for filing a petition...