Clutter v. Meko
| Decision Date | 15 September 2016 |
| Docket Number | No. 2:16-CV-15-DCR-HAI,2:16-CV-15-DCR-HAI |
| Parties | RAYMOND CLUTTER, Petitioner, v. JOSEPH MEKO, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Kentucky |
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Following a bench trial in Boone Circuit Court in June 2010, Raymond Clutter was found guilty of murder, evidence-tampering, and being a first-degree felony offender, and was sentenced to life in prison. He appealed to the Kentucky Supreme Court, which affirmed his conviction on April 26, 2012. Clutter v. Commonwealth, 364 S.W.3d 135 (Ky. 2012). On July 1, 2013, he filed a motion for post-conviction relief under Kentucky Rule of Criminal Procedure 11.42. The trial court denied relief, and the Kentucky Court of Appeals affirmed the decision on December 23, 2015. Clutter v. Commonwealth, No. 2014-CA-34-MR, 2015 WL 9413405 (Ky. Ct. App. Dec. 3, 2015).
On January 27, 2016, Clutter filed the petition for federal habeas corpus relief that is now under consideration.1 D.E. 1. Such petitions are subject to a one-year statute of limitations under 28 U.S.C. § 2244(d). The limitation period begins to run from the date a petitioner's judgment becomes final, or from one of three other triggering events not applicable here. See id. § 2244(d)(1)(A). A judgment of conviction becomes final for the purposes of § 2244(d)(1)(A)when either direct review concludes or the time for seeking such review expires. See Linscott v. Rose, 436 F.3d 587, 591 (6th Cir. 2006). However, this clock is tolled during the pendency of any "properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2).
The timeliness of Clutter's petition hinges on the effect of Kentucky Rule of Civil Procedure 76.30(2)(a), which applies to criminal cases through Kentucky Rule of Criminal Procedure 12.05. Kentucky Rule 76.30(2)(a) states that an opinion of the Kentucky Supreme Court "becomes final on the 21st day after the date of its rendition" unless a petition for rehearing has been filed. When he filed his federal habeas petition, Clutter believed that the federal habeas clock did not begin to run until the expiration of those 21 days. D.E. 1 at 13-14. But, as he now admits, without those 21 days, his petition is time-barred. D.E. 13 at 7-8.
The governing law on this subject actually solidified while Clutter's motion was pending. On March 30, 2016, the Warden moved to hold the case in abeyance and delay his resoponse pending the Sixth Circuit's decision in Giles v. Beckstrom ("Giles II"). D.E. 7. The Warden explained that the Court of Appeals in Giles was "directly considering the question" of whether Kentucky Rule 76.30 affected federal habeas deadline calculations. Id. at 4. Clutter did not respond to this motion, and the Court held the matter in abeyance pending the Giles II decision (D.E. 9), which was published on June 15, 2016. Giles v. Beckstrom, 826 F.3d 321, 322 (6th Cir. 2016). On August 5, 2016, the Court of Appeals declined to rehear the Giles II case en banc. Giles II, No. 14-6494, D.E. 30.
In his answer to Clutter's petition, the Warden relies on Giles II's holding: the 90-day tolling period for filing for federal Supreme Court review begins to run on the date the Kentucky Supreme Court issues its opinion, not 21 days later when the judgment becomes "final" underKentucky Rule 76.30. D.E. 11 at 21. Without these 21 days, the Warden argues, Clutter's petition is untimely.
To his credit, Clutter concurs. Clutter admits in his reply brief that "Application of Giles . . . would make his petition late by ten (10) days unless equitable tolling principles are applied." D.E. 13 at 8. Indeed, Clutter's petition is time-barred unless the one-year deadline can be equitably tolled.
The relevant dates are as follows. Clutter appealed his conviction to the Kentucky Supreme Court, which issued its opinion on April 26, 2012. The 90-day period for filing a petition for certiorari to the United States Supreme Court began that day. See Giles II, 826 F.3d at 324; United States Supreme Court Rule 13.3. The 90-day window expired July 25, 2012, and the 365-day statute of limitations began to run the following day. Fed. R. Civ. P. 6(a)(1)(A). Three-hundred forty days later, Clutter tolled the statute by filing his Rule 11.42 motion on July 1, 2013. That motion was resolved on December 23, 2015, when the Court of Appeals affirmed the trial court's denial of the motion. At this point, Clutter had 25 days left on the clock. Adding 25 days brings us to Sunday, January 17, 2016. Technically, Clutter's petition was due on Monday, January 18, because when the statute of limitations expires on a weekend or holiday, it extends to the next business day. Bartlik v. U.S. Dep't of Labor, 62 F.3d 163, 167 (6th Cir. 1995) (en banc); Giles v. Beckstrom ("Giles I"), No. 5:14-CV-85-TBR, 2014 WL 5782571, at *1 n.2 (W.D. Ky. Nov. 6, 2014), aff'd, 826 F.3d 321 (6th Cir. 2016); Fed. R. Civ. P. 6(a)(1)(C). Clutter filed his petition on January 27, 2016, nine days past the deadline.
But should those nine days be equitably tolled? Because § 2244(d)(1)'s one-year statute of limitations is not jurisdictional, it is subject to equitable tolling. McClendon v. Sherman, 329 F.3d 490, 492 (6th Cir. 2003). Courts apply this doctrine "sparingly." Solomon v. United States,467 F.3d 928, 933 (6th Cir. 2006). The party seeking to toll the limitations period bears the burden of demonstrating an entitlement to it. Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010).
A movant "is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The bar to equitable tolling is a high one. "Absent compelling equitable considerations, a court should not extend limitations by even a single day." Jurado v. Burt, 337 F.3d 638, 643 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brookes Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000)).
As the Warden points out, erroneously calculating a deadline is not a basis for equitable tolling. D.E. 11 at 23; Giles II, 826 F.3d at 325. Nor is ignorance of the law. D.E. 11 at 24; Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004). Again, to his credit, Clutter admits as much: "The Petitioner understands that ignorance of the law is not an exceptional circumstance warranting equitable tolling and that mere erroneous calculation of a deadline does not warrant tolling." D.E. 13 at 10.
Instead, Clutter posits that the "extraordinary circumstance" in his case is that Giles II "was not in effect when he filed his petition." D.E. 13 at 10. He claims "the law at that time supported the Petitioner's understanding of how the limitations deadline was to be calculated." Id. This sounds reasonable at first blush. How can Clutter be penalized if the law unexpectedly changed after he researched his case and filed his petition? But, on closer inspection, that is not exactly what happened here. Giles II was not a surprise that came out of nowhere.
Prior cases that have considered this question reached the same result as the Court of Appeals in Giles II. One example from this District is Jackson v. Chandler, No. 6:09-CV-125-GFVT-REW, D.E. 27, 2010 U.S. Dist. LEXIS 146338 (E.D. Ky. Jan. 25, 2010). In a meticulous Recommended Disposition, Magistrate Judge Wier determined that Kentucky Rule 76.30(2) did not affect the federal habeas clock. First, under § 2244(d), the clock starts on "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. at 4. That "conclusion" occurs at "the end of United States Supreme Court review, or the end of the time for seeking such review." Id. (citing Wilberger v. Carter, 35 F. App'x 111, 115 (6th Cir. 2002)). Second, United States Supreme Court Rule 13.3 provides that the 90-day period for seeking review from that Court "runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice)." Id. at 5. Third, Kentucky Rule 76.30 states that a Kentucky Supreme Court opinion "becomes final on the 21st day after the date of its rendition" and that "No mandate shall be required to effectuate the final decision of an appellate court, whether entered by order or by opinion." Id.
Reading these rules and statutes together, Magistrate Judge Wier determined that the 90-day federal Supreme Court petitioning period begins to run when the Kentucky Supreme Court renders its opinion, not when the opinion becomes technically "final." Rule 13.3 looks to the "date of the entry" of the order sought to be reviewed. In Kentucky, no mandate is required, and the opinion itself is the only decision "entered" by the Kentucky Supreme Court. Jackson, D.E. 27 at 5-6. The 21 days provided by Rule 76.30 corresponds to the time allotted to seek a petition for rehearing under Rule 76.32. Id. at 6. Thus, the 90-day Supreme-Court-certiorari window begins to run when the Kentucky Supreme Court case is decided, not 21 days later. Id. at 6-9.
Magistrate Judge Wier solicited briefing on whether equitable tolling was warranted. Jackson, D.E. 27 at 1. He found that:
Counsel simply followed what she misunderstood to be the rules and made no extraordinary efforts to investigate the issue or file the petition early to be certain it would be timely. Had the rule been confusing to counsel for Petitioner, she should have filed the petition to meet the earliest potential deadline, rather than the last.
Id. at 12. Upon de novo review, Judge Van Tatenhove found himself "in complete agreement with the Recommended Disposition," and declined to issue a Certificate of Appealability. Jackson, D.E. 30 at 3.
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