Barke v. Berge, 97-C-354.

• Decision Date: 08 October 1997
• Docket Number: No. 97-C-354.,97-C-354.
• Parties: Ralph G. BARKE, Petitioner, v. Gerald A. BERGE, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

977 F.Supp. 938

Ralph G. BARKE, Petitioner, v. Gerald A. BERGE, Respondent.

No. 97-C-354.

United States District Court, E.D. Wisconsin.

October 8, 1997.

Ralph G. Barke, Fox Lake, WI, pro se.

Warren D. Weinstein, Wisconsin Dept. of Justice, Office of Atty. General, Madison, WI, for Respondent.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

On April 9, 1997, Ralph Barke submitted to the court a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, along with an application for leave for proceed in forma pauperis. He did not submit the $5.00 filing fee required by 28 U.S.C. § 1914(a). The clerk of court stamped the word "filed" on both the petition and the application to proceed in forma pauperis on that day. In a decision and order dated April 28, 1997, I noted that Mr. Barke had filed a certified copy of his prison trust account statement, but that he had failed to answer an important question in his affidavit of indigence. I therefore directed him to file a "fully completed application to proceed in forma pauperis."

On May 15, 1997, Mr. Barke paid the $5.00 filing fee. In another decision and order, dated May 21, 1997, I found that Mr. Barke's claim for relief may constitute a colorable violation of his rights under the United States Constitution and directed the respondent to file an answer. The respondent timely filed his answer, along with a motion to dismiss. It is this motion to dismiss that is presently before the court.

On April 24, 1996, Congress enacted a one-year limitation on the filing of habeas corpus petitions. Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 ["AEDPA"]. The statute provides, in pertinent part, that the one-year period of limitation runs from "the date on which the [state court] 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). Subsequent to Congress' enactment of this provision, however, the court of appeals for the seventh circuit held that because of reliance interests, no petition should be dismissed under the new one-year period of limitation before April 23, 1997. Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

The respondent argues that the court should dismiss Mr. Barke's petition as untimely because it was "filed" with the court after April 23, 1997 and more than a year after the state court's final review of the same issues. It is undisputed that on April 16, 1996, the Wisconsin supreme court denied Mr. Barke's petition for review of the Wisconsin court of appeals' denial of his motion for post-conviction relief. The respondent contends that because Mr. Barke did not pay the $5.00 filing fee in this court until May 16, 1997, the one-year period of limitation applies, precluding the petitioner's ability to maintain this action. The question, therefore, is whether Mr. Barke's submission of his petition and application for leave to proceed in forma pauperis on April 9, 1997, was a sufficient "filing." If so, the one-year period of limitation imposed by 28 U.S.C. § 2254 does not apply to him.

Rule 3(a), Rules Governing Section 2254 Cases, provides that a habeas corpus petition shall be accompanied by the filing fee "unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis." Rule 3(b) states that the clerk of court shall "file" the petition and enter it on the docket "[u]pon receipt of the petition and the filing fee or of an order granting leave to the petitioner to proceed in forma pauperis" (emphasis added). Based on that rule, the respondent argues that Mr. Barke's petition was not properly filed until he paid his filing fee.

A plain reading of Rule 3 shows that despite the clerk of court's file-stamping of Mr. Barke's petition on April 9, 1997, the petition itself was not actually "filed" for purposes of the one-year period of limitation until Mr. Barke paid the filing fee on May 16, 1997. See Weaver v. Pung, 925 F.2d 1097, 1099 (8th Cir.) (noting that "[Rule 3(b)] does not direct the clerk to file the petition upon receipt of the petition and an application to proceed in forma pauperis" and that "the date on which the filing fee was paid was the earliest date on which [the petitioner's] petitions could have been filed"), cert. denied, 502 U.S. 828, 112 S.Ct. 99, 116 L.Ed.2d 70 (1991); Norlander v. Plasky, 964 F.Supp. 39 (D.Mass.1997) ("Rule 3(b) contemplates the occurrence of two things. First, the clerk must receive the petition. Second, the clerk must either receive the filing fee or an order granting leave to proceed in forma pauperis.").

If Mr. Barke had paid the $5.00 filing fee or if the court had granted him leave to proceed in forma pauperis by April 23, 1997, his petition would have been "filed" with the court by that day. However, because the clerk of court of this court mistakenly filestamped Mr. Barke's petition on April 9, 1997, Mr. Barke had no notice that his petition was not properly filed. Furthermore, the record shows that the petitioner presented the same issue that he presents herewhether the government violated the terms of his plea agreement-to the Wisconsin supreme court. That court denied review of that issue on April 16, 1996. Therefore, if Mr. Barke's petition had indeed been filed on April 9, 1996, he not...