Branham v. Montana

• Decision Date: 06 May 2021
• Docket Number: No. 19-35829,19-35829
• Parties: Charles Ivan BRANHAM, Petitioner-Appellant, v. State of MONTANA; Patrick McTighe, Respondents-Appellees, and Jim Salmonsen, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

996 F.3d 959

Charles Ivan BRANHAM, Petitioner-Appellant,

v.State of MONTANA; Patrick McTighe, Respondents-Appellees,andJim Salmonsen, Respondent.

No. 19-35829

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2020 Portland, Oregon

Filed May 6, 2021

Palmer A. Hoovestal (argued), Hoovestal Law Firm PLLC, Helena, Montana, for Petitioner-Appellant.

Mardell Ployhar (argued), Assistant Attorney General; Timothy C. Fox, Attorney General; Office of the Attorney General, Helena, Montana; for Respondents-Appellees.

Before: Michael R. Murphy,^* Mark J. Bennett, and Eric D. Miller, Circuit Judges.

MILLER, Circuit Judge:

A prisoner who seeks a federal writ of habeas corpus to review a state-court conviction must satisfy a one-year statute of limitations. 28 U.S.C. § 2244(d). The one-year period begins to run upon "the conclusion of direct review" of the conviction, and it is suspended during the pendency of any "properly filed application for State post-conviction or other collateral review." Id. We are asked to decide whether a proceeding in the Sentence Review Division of the Montana Supreme Court constitutes direct review or collateral review. We conclude that it is collateral review.

I

On the night of December 10, 2009, Charles Branham fatally stabbed Michael Kinross-Wright. Branham admitted the stabbing but claimed that he acted in self-defense. A Montana jury found Branham guilty of mitigated deliberate homicide, and he was sentenced to 40 years of imprisonment without eligibility for parole. The Montana Supreme Court affirmed. State v. Branham , 363 Mont. 281, 269 P.3d 891, 897 (2012). Branham did not file a petition for a writ of certiorari in the United States Supreme Court.

About 11 months after the time for filing a petition for a writ of certiorari expired, Branham filed a petition for state post-conviction relief, arguing that he had received ineffective assistance of counsel. See Mont. Code Ann. § 46-21-101 et seq. The state district court denied his petition, and the Montana Supreme Court affirmed. Branham v. State , 387 Mont. 536, 390 P.3d 162 (2017) (unpublished table decision).

About two weeks later, Branham filed an application for review of his sentence by the Sentence Review Division of the Montana Supreme Court. See Mont. Code Ann. § 46-18-901 et seq . The Sentence Review Division affirmed the sentence, concluding that it was neither "clearly inadequate [n]or clearly excessive."

More than six months later, Branham filed a petition for a writ of habeas corpus in federal district court. He alleged that both trial and appellate counsel were unconstitutionally ineffective and that he was deprived of due process by various procedural errors at trial and in post-conviction proceedings.

A magistrate judge recommended that the petition be dismissed as time barred. The magistrate judge applied 28 U.S.C. § 2244(d)(1), which provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." As relevant here, the period begins to run upon "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). But the statute also provides that "[t]he 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." Id. § 2244(d)(2).

The magistrate judge determined that the statute of limitations began to run after the expiration of the period for seeking certiorari to review the Montana Supreme Court's 2012 decision affirming Branham's conviction. The magistrate judge treated both Branham's petition for post-conviction relief and his application for review by the Sentence Review Division as forms of "State post-conviction or other collateral review," which meant that the statute of limitations was tolled during those proceedings. Once the proceedings concluded, Branham had 23 days remaining in which to file, but he did not file until several months later, making his petition untimely.

The district court adopted the magistrate judge's recommendation and dismissed the petition. The court noted that "[b]ecause Branham does not dispute [the] actual calculation of the various dates involved, but rather disputes when the statute of limitations period began, the narrow issue is whether Montana's [Sentence Review Division] proceeding is a form of direct or collateral review." The court stated that our decision in Rogers v. Ferriter , 796 F.3d 1009 (9th Cir. 2015), "largely resolves the issue." In the court's view, although the decision in Rogers "did not directly address whether Montana's [Sentence Review Division] process is direct or collateral, it was a basic assumption of the case that it was a collateral proceeding." The court added that because review in the Sentence Review Division "may occur after a post-conviction review it is necessarily collateral."

The district court granted a certificate of appealability.

II

The timeliness of Branham's habeas petition—and, thus, the resolution of this appeal—depends on how to characterize Montana's Sentence Review Division proceeding. If that proceeding is a form of "direct review" under section 2244(d)(1)(A), then the one-year statute of limitations began to run upon its conclusion, making Branham's petition timely. If it is instead a form of "State post-conviction or other collateral review" under section 2244(d)(2), then the statute of limitations was tolled while that proceeding was ongoing but did not reset upon its conclusion, making Branham's petition untimely. Reviewing de novo, McMonagle v. Meyer , 802 F.3d 1093, 1096 (9th Cir. 2015) (en banc), we agree with the district court that the proceeding is a form of collateral review.

At the outset, we conclude that our precedent does not resolve the issue before us. The district court relied on our decision in Rogers , in which we considered whether a Sentence Review Division proceeding was "pending," for purposes of tolling under section 2244(d)(2), during the time that the Sentence Review Division held it in abeyance so that the petitioner could pursue state post-conviction relief. 796 F.3d at 1010. In describing the issue, we referred to the Sentence Review Division as part of "Montana's dual-track system for collateral review of criminal sentences." Id. Thus, as the district court correctly observed, "a basic assumption" of our decision was that a proceeding in the Sentence Review Division was collateral. But no party in Rogers suggested that the proceeding might constitute direct review, and the issue of how to characterize it was not before us. "Judicial assumptions concerning ... issues that are not contested are not holdings," so the assumption reflected in Rogers is not binding here. FDIC v. McSweeney , 976 F.2d 532, 535 (9th Cir. 1992) (omission in original) (quoting United States v. Daniels , 902 F.2d 1238, 1241 (7th Cir. 1990) ); accord Summers v. Schriro , 481 F.3d 710, 712–13 (9th Cir. 2007).

Because our precedent does not answer the specific question presented, we turn to more general guidance on the difference between direct review and collateral review. The Supreme Court has held that " ‘collateral review’ means a form of review that is not part of the direct appeal process." Wall v. Kholi , 562 U.S. 545, 552, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011) ; see also id. (noting that a "collateral attack" is "[a]n attack on a judgment in a proceeding other than a direct appeal " (alteration and emphasis in original) (quoting Black's Law Dictionary (9th ed. 2009))). To illustrate the distinction, the Court has observed that "habeas corpus is a form of collateral review," as are coram nobis proceedings and proceedings under 28 U.S.C. § 2255. Id.

In Summers , a case that preceded Kholi , we noted that section 2244(d) uses "the phrase ‘direct review’ rather than the phrase ‘direct appeal,’ " and we criticized the suggestion that "the phrase ‘direct review’ excludes any form of review that is not a ‘direct appeal.’ " 481 F.3d at 713. On its broadest reading, that language would be irreconcilable with the statement in Kholi that " ‘collateral review’ means a form of review that is not part of the direct appeal process," 562 U.S. at 552, 131 S.Ct. 1278, as well as with our subsequent en banc decision in McMonagle , in which we said that "[i]t is when a direct appeal becomes final that [the] 1-year statute of limitations begins running," 802 F.3d at 1098. But our holding in Summers was much more limited: We held that the label a State attaches to a proceeding is not controlling, and that "direct review" includes a proceeding that, although not called an "appeal," is nevertheless "the functional equivalent of a direct appeal." 481 F.3d at 716 (quoting State v. Ward , 211 Ariz. 158, 118 P.3d 1122, 1126 (Ariz. Ct. App. 2005) ); see also Carey v. Saffold , 536 U.S. 214, 223, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) ("[F]or purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions, rather than the particular name that it bears."). That holding is consistent with Kholi and McMonagle , and it guides our analysis here.

A review of our cases and those of the Supreme Court reveals three factors that are relevant to determining whether a proceeding is functionally "part of the direct appeal process" or is instead a form of collateral review. Kholi , 562 U.S. at 552, 131 S.Ct. 1278.

First, we consider how the proceeding is characterized under state law. Of course, "[b]ecause the question of what constitutes direct review is intertwined with the question of when a decision on direct review becomes final, it makes sense to decide both questions by reference to uniform federal law." Summers , 481 F.3d at 714. And as we have already explained, the label a...