Burns v. Morton, 97-5568

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 134 F.3d 109
• Docket Number: No. 97-5568,97-5568
• Parties: Donald BURNS, Appellant, v. Willis E. MORTON, Superintendent; Peter Verniero, the Attorney General of the State of New Jersey.
• Decision Date: 09 January 1998

Page 109

134 F.3d 109 Donald BURNS, Appellant,
v.
Willis E. MORTON, Superintendent; Peter Verniero, the
Attorney General of the State of New Jersey. No. 97-5568. United States Court of Appeals,
Third Circuit. Submitted by the Clerk pursuant to
I.O.P. Ch. 10.6 Oct. 9, 1997.
Decided Jan. 9, 1998.

Page 110

Donald Burns, Trenton, NJ, Pro se.

Jennifer L. Gottschalk, Office of Attorney General of New Jersey, Trenton, NJ, for Appellees.

Before: BECKER, NYGAARD, and ROTH, Circuit Judges (Motions Panel A).

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The district court dismissed Donald Burns' petition for a writ of habeas corpus as untimely under 28 U.S.C. § 2244(d)(1), and granted a certificate of appealability to appeal from this dismissal. We conclude that Burns' petition was timely filed under the principles set forth in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). We will summarily reverse the dismissal, and remand the cause to the district court.

I.

Burns pleaded guilty in New Jersey Superior Court, Law Division, to multiple counts of robbery, aggravated assault, unlawful possession of a weapon, and conspiracy. On September 10, 1987, Burns was sentenced to 100 years in prison with fifty years of parole ineligibility. The Appellate Division modified his sentence to forty years with a twenty-year period of parole ineligibility. The New Jersey Supreme Court denied Burns' petition for certification.

Burns then filed a petition for post-conviction relief in state court, which denied relief. After extensive postconviction proceedings, the New Jersey Supreme Court denied his petition for certification on September 21, 1995.

On April 22, 1997, Burns submitted his petition for a writ of habeas corpus under 28 U.S.C. § 2254, to officials at the New Jersey State Prison to be mailed to the Federal District Court for the District of New Jersey. ¹ The Clerk of the district court received Burns' petition on April 28, 1997. The district court granted Burns' application to proceed in forma pauperis on May 5, 1997, and the Clerk docketed Burns' habeas petition as filed on that date.

In considering whether Burns' petition was timely filed, the district court first recognized that under Duarte v. Hershberger, 947 F.Supp. 146 (D.N.J.1996), the petition could not be dismissed as untimely under the one-year period of limitation of 28 U.S.C. § 2244(d)(1) if the petition was filed on or before April 23, 1997. The court also noted Burns' assertion that he had submitted his petition to prison officials on April 22, 1997. Nonetheless, the court concluded that Houston v. Lack, under which a pro se prisoner's notice of appeal is considered filed at the time he submits it to prison officials for

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mailing, does not apply to habeas petitions. The court thus found that Burns' petition was filed after April 23, 1997, and dismissed it as untimely under § 2244(d)(1). The court also granted Burns a certificate of appealability to appeal from this dismissal. Burns filed a timely notice of appeal. ²

II.

28 U.S.C. § 2244(d) provides in relevant part:

(1) 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. The limitation period shall run from ...

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

...

(2) 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.

28 U.S.C. § 2244(d).

Section 2244(d) became effective on April 24, 1996, when the Antiterrorism and Effective Death Penalty Act of 1996 was signed into law. Applying § 2244(d) as of its effective date would require Burns to have filed his habeas petition before September 21, 1996, one year after his petition for certification was denied by the New Jersey Supreme Court, but less than five months after § 2244(d) became effective. Several other courts of appeals have held that applying § 2244(d) in this manner "would impermissibly 'attach new legal consequences to events completed before its enactment.' " Calderon v. United States Dist. Court for the Cent. Dist. of Cal., 128 F.3d 1283, 1286-87 (9th Cir. 1997), quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994); see Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), rev'd on other grounds, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); see also United States v. Simmonds, 111 F.3d 737 (10th Cir.1997) (holding that 28 U.S.C. § 2255's one-year limitation cannot bar motions filed prior to April 24, 1997). These courts have fashioned a rule that "[n]o petition filed on or before April 23, 1997--one year from the date of AEDPA's enactment--may be dismissed for...