Fleming v. Evans

• Citation: 481 F.3d 1249
• Decision Date: 03 April 2007
• Docket Number: No. 06-6110.,06-6110.
• Parties: Kipton FLEMING, Petitioner-Appellant, v. Edward L. EVANS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

481 F.3d 1249

Kipton FLEMING, Petitioner-Appellant, v. Edward L. EVANS, Respondent-Appellee.

No. 06-6110.

United States Court of Appeals, Tenth Circuit.

April 3, 2007.

Submitted on the briefs:^*

Kipton Fleming, pro se.

W.A. Drew Edmondson, Attorney General of Oklahoma, and Jay Schniederjan, Assistant Attorney General, Office of the Attorney General for the State of Oklahoma, Oklahoma City, OK, for Appellee.

Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.

TACHA, Chief Circuit Judge.

Petitioner-Appellant Kipton Fleming, a state prisoner appearing pro se, seeks a certificate of appealability ("COA") to appeal the District Court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The District Court did not address Mr. Fleming's substantive claims but instead dismissed the petition as untimely. We take jurisdiction under 28 U.S.C. §§ 1291 and 2253, grant his application for a COA, vacate the judgment of the District Court, and remand for further proceedings.

I. BACKGROUND

In 2001, Mr. Fleming was charged in Oklahoma state court with three criminal counts. Counts II and III are relevant here. Count II charged him with assault and battery with a dangerous weapon, and Count III charged him with domestic abuse assault and battery. The proceedings with respect to these two counts took two distinct paths. Mr. Fleming pleaded guilty to Count III, but he went to trial on Count II, on which a jury found him guilty. He was sentenced to thirty years' imprisonment for Count II and one year of time served for Count III.¹

Mr. Fleming raises several constitutional claims related to each count of conviction. Specifically, he claims that he received ineffective assistance of counsel on both counts, that his convictions violate the Double Jeopardy Clause, and that he was denied due process of law due to the state's use of perjured testimony at trial and its concealment of a plea agreement struck with one of its primary witnesses. The case was referred to a magistrate judge who recommended that Mr. Fleming's claims with respect to Count III be dismissed as time-barred and that his claims with respect to Count II proceed. Both Mr. Fleming and the state filed objections to the magistrate judge's findings. Mr. Fleming argued that the magistrate erred in concluding that his claims regarding Count III are time-barred. For its part, the state argued that the record clearly establishes that claims regarding Count II are also time-barred because Mr. Fleming was aware at the time of his direct appeal of the factual basis of the claim—the alleged perjured testimony and the state's concealment of a plea agreement.

The District Court adopted the reasoning of the magistrate judge and granted the state's motion to dismiss Mr. Fleming's claims with respect to Count III, but denied the state's motion with respect to Count II, noting that it could not take into account record evidence to dismiss an action on the pleadings. The state then filed a motion for summary judgment, arguing that Mr. Fleming's claims with respect to Count II are time-barred and attached Mr. Fleming's brief on direct appeal citing to the relevant facts of which Mr. Fleming now claims he was previously unaware. Mr. Fleming had an opportunity to respond. On recommendation from the magistrate judge, the District Court found no genuine issue of fact as to the timeliness of the petition and granted the state's motion. The District Court denied Mr. Fleming's application for a COA and denied his motion to proceed in forma pauperis on appeal.

II. DISCUSSION

A. Jurisdiction

The District Court entered its order and judgment in this case on February 27, 2006, indicating that no party had filed objections to the magistrate judge's report and recommendation. Mr. Fleming filed a notice of appeal on March 14, 2006. He also filed a motion for rehearing on that day, notifying the District Court that he had timely mailed objections to the magistrate judge's report and recommendation. The District Court granted Mr. Fleming's motion and vacated the February 27 order. The court entered a new order adopting the report and recommendation of the magistrate judge on March 24, 2006. The state argues that once the District Court vacated its February 27 order Mr. Fleming's notice of appeal of that order was rendered moot. Mr. Fleming did not file a new notice of appeal following the entry of the March 24 order, see Fed. R.App. P. 4(a)(1)(A) (requiring a notice of appeal to be filed within 30 days after the judgment or order appealed from is entered), and the state therefore maintains that this Court lacks jurisdiction over the instant matter, see Fed. R.App. P. 3 (conditioning federal appellate jurisdiction on the filing of a timely notice of appeal). We disagree.

Rule 3 requires a notice of appeal to "designate the judgment, order, or part thereof being appealed." Fed. R.App. P. 3(c)(1)(B). We "liberally construe" the rule's requirements: "when papers are technically at variance with the letter of Rule 3, a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) (alteration and internal quotation marks omitted). Although Mr. Fleming did not file a formal notice of appeal within the 30-day deadline, he did file, on April 14, 2006, a combined "motion for leave to proceed on appeal without prepayment of costs or fees and application for certificate of appealability." He also filed a pro se docketing statement. Furthermore, although Mr. Fleming's April 14 motion expressly references the vacated February 27 order, this discrepancy does not render Mr. Fleming's notice of appeal ineffective. Even if a notice fails to properly designate the order from which the appeal is taken, this Court has jurisdiction if the appellant's intention was clear. United States v. Morales, 108 F.3d 1213, 1222-23 (10th Cir.1997). The clear intent of Mr. Fleming's April 14 motion was to appeal the District Court's March 24 order dismissing his claim. Although he denominated the order being appealed as the court's order of February 27, that order was superceded by the court's March 24 order, which reached the same conclusion as the former. Mr. Fleming's filings contain all the information required by Rule 3(c) and thus are the "functional equivalent" of a formal notice of appeal. See Smith, 502 U.S. at 248, 112 S.Ct. 678 (stating that the purpose of a notice of appeal "is to ensure that the filing provides sufficient notice to other parties and the courts"); see also Rodgers v. Wyo. Attorney Gen., 205 F.3d 1201, 1204 & n. 3 (10th Cir.2000) (listing documents construed as the equivalent of a notice of appeal), overruled on other grounds as recognized by Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir.2001). This Court therefore has jurisdiction to review Mr. Fleming's petition.

B. Antiterrorism and Effective Death Penalty Act

A COA may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requires Mr. Fleming to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotation omitted). In addition, when the district court's ruling is based on procedural grounds, the petitioner must demonstrate that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

The Antiterrorism and Effective Death Penalty Act ("AEDPA") imposes a one-year limitations period on the filing of federal habeas actions. See 28 U.S.C. § 2244(d). The period begins to run from "the latest of" four dates, two of which are relevant here. The first is "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). The second is "the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence." Id. § 2244(d)(1)(D). Importantly, the limitations period is statutorily tolled "[f]or 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" in state court. Id. § 2244(d)(2). In addition, the limitations period may be equitably tolled if the petitioner "diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).

When a district court denies a habeas petition based on § 2244(d), we generally exercise de novo review. See Burger v. Scott, 317 F.3d 1133, 1137 (10th Cir.2003). Here, the District Court also found no grounds for equitably tolling the statute-of-limitations period. On appeal, such a decision is reviewed for an abuse of discretion. See id. at 1138. Ultimately, therefore, we will vacate the District Court's determination that equitable tolling is inapplicable only if reasonable jurists could debate whether the court's refusal to toll the statute of limitations was an abuse of discretion.

1. Procedural Ruling

a. Timeliness of Count III

Mr. Fleming pleaded guilty to Count III. The state trial court sentenced him on December 21, 2001. Because Mr. Fleming did not file a timely motion for leave to withdraw his plea or otherwise directly appeal his conviction, his conviction on Count III became final on December 31, 2001. See ...