Griffin v. Rogers

• Decision Date: 18 October 2002
• Docket Number: No. 00-4116.,00-4116.
• Citation: 308 F.3d 647
• Parties: Sandra Maxwell GRIFFIN, Petitioner-Appellant, v. Shirley A. ROGERS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 647

308 F.3d 647

Sandra Maxwell GRIFFIN, Petitioner-Appellant, v. Shirley A. ROGERS, Warden, Respondent-Appellee.

No. 00-4116.

United States Court of Appeals, Sixth Circuit.

Argued September 18, 2002.

Decided and Filed October 18, 2002.

Stephen P. Hardwick (argued and briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for Appellant.

Thelma Thomas Price (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Appellee.

Before MARTIN, Chief Circuit Judge, MOORE, Circuit Judge, and WISEMAN, District Judge.^*

OPINION

MOORE, Circuit Judge.

Petitioner Sandra Maxwell Griffin, a state prisoner, filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 on April 22, 1997, which was two days before her one-year period for filing for such relief was to expire. After that petition was dismissed without prejudice because Griffin had failed to exhaust state remedies, Griffin petitioned for state collateral relief. Her request for state relief was dismissed on September 22, 1999, and on October 15, 1999, she once again filed her habeas petition in federal court under the same case number as her previous filing. The district court struck her October 15 petition on the grounds that it should be given a new case number and assigned to a new judge. On October 25, it was assigned to a new judge, who dismissed it as time-barred. Because there is insufficient information in the record to determine whether Griffin is entitled to equitable tolling under Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), we VACATE and REMAND for further proceedings on that issue.

I. BACKGROUND

In 1990, a trial judge in Ohio state court found Sandra Maxwell Griffin guilty of complicity to aggravated murder with specifications, complicity to unlawful possession of a dangerous ordnance, complicity to grand theft, and complicity to aggravated robbery with a firearm specification. Griffin then obtained new counsel and unsuccessfully appealed her case to the Ohio Supreme Court, arguing that the trial court had violated her Fifth, Eighth, and Fourteenth Amendment rights by not following certain state laws regarding her waiver of trial by jury or by three-judge panel and regarding the length of her sentence. She lost her appeals, and her conviction became final in 1992.

The Antiterrorism and Effective Death Penalty Act (AEDPA) became effective on April 24, 1996, and prisoners whose state convictions already had become final were required to file any petitions for habeas corpus relief within one year of that date. See Isham v. Randle, 226 F.3d 691, 693 (6th Cir.2000), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001). Represented by the Ohio Public Defender's Office, Griffin filed for habeas corpus relief on April 22, 1997. The petition was assigned to Judge Holschuh. Although in her initial petition Griffin raised just one ground for relief, namely the trial court's failure to follow "mandatory statutory requirements of a proceeding" in violation of her due process and equal protection rights, J.A. at 16, in her reply to the warden's return of writ she expanded her claims. Griffin argued that her waiver of trial by jury or by a three-judge panel, as provided under Ohio law, was neither knowing nor intelligent and that her sentence exceeded that permitted under law. The district court determined that these were "clearly distinct from the argument that she presented to the state courts," noted that the new arguments "appear to have been procedurally defaulted," and offered Griffin the opportunity to demonstrate cause and prejudice before the court would dismiss the claims as procedurally defaulted. J.A. at 66-68 (Dist. Ct. Order 3/16/98). Griffin argued that the cause of her failure to present the arguments in state court was her counsel's ineffective assistance.

Judge Holschuh ruled that, although ineffective assistance of appellate counsel can constitute cause for procedural default, the petitioner must present the ineffective assistance claim itself to the state courts before using it to excuse the default. Because Griffin had not brought that claim to the state courts, she could not yet present it to the federal court in a habeas petition. Judge Holschuh concluded, "If she wishes, at some point, to make such an [ineffective assistance] argument here, petitioner must present her claim of ineffective assistance of counsel to the state courts." J.A. at 99 (Dist. Ct. Order 9/30/98). On September 30, 1998, the court denied her petition and dismissed the case without prejudice for her failure "to establish cause for her procedural default." J.A. at 101.

After this dismissal, Griffin filed an Application to Reopen in state court pursuant to Ohio Rule of Appellate Procedure 26(B) so that she could press the ineffective assistance claim. The date on which she filed for this post-conviction relief is not in the record. The Supreme Court of Ohio ultimately dismissed her case without opinion on September 22, 1999.

Griffin then returned to Judge Holschuh, filing on October 15, 1999, a habeas petition under her previous case number. In her re-filing, she alerted the court to the fact that she was filing it "under the original case number," because it merely continued her previous attack. She also noted that, because her previous filing had been dismissed without prejudice to permit exhaustion, this subsequent filing was not a "second or successive" petition prohibited under 28 U.S.C. § 2244(b). J.A. at 102-03. In this petition, Griffin also included notice of the claims that she had brought in her state Application to Reopen. However, on Friday, October 22, Judge Holschuh ordered the clerk to strike Griffin's new filing under the previous case number and directed the clerk to file it with a new case number and assign it to a judge using the "ordinary selection process." J.A. at 118 (Dist. Ct. Order 10/22/99). Judge Holschuh noted that because the previous case had closed and the petitioner had offered no grounds to reopen the previous case, the petition should be filed under a different case number, and the district judge to which it would then be assigned should consider independently whether to entertain the petition or reject it as a second or successive petition. Judge Holschuh stated that "[t]he assignment or non-assignment of a new civil number to a case is obviously not conclusive on the issue of whether the petitioner is entitled to file a second habeas corpus petition," and "[n]othing in this order is intended to convey any opinion as to whether the new petition is or is not a successive petition or has otherwise been properly filed." J.A. at 117-18.

Griffin re-filed her second petition on Monday, October 25, and it was given a new case number and assigned to Judge Smith. After briefing, Judge Smith dismissed the action for failure to file within the one-year limitation period for § 2254 actions. The district court noted that when Griffin filed her first habeas petition on April 22, 1997, two days before the one-year deadline was to have run, 363 days of her statute of limitations had lapsed. That petition had been dismissed on September 30, 1998. Without knowing the actual date of her state court filing, the district court assumed that Griffin immediately filed her state court application and that this filing tolled the running of her federal statute of limitations. The district court ruled that when the state court application was resolved on September 22, 1999, Griffin had two days in which to return to federal court. She did not submit her second petition until October 15, 1999, after the statute of limitations had run. Therefore, the district court dismissed Griffin's petition.

Griffin timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.

II. ANALYSIS

We review a district court's disposition of a habeas corpus petition de novo. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001).

A. AEDPA

Because Griffin's habeas petition was filed after AEDPA became effective on April 24, 1996, the provisions of that act apply to this case. AEDPA states 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." 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run from the latest of four circumstances, which in this case is April 24, 1996, the date on which AEDPA became effective. Although Griffin filed her initial petition on April 22, 1997, with two days remaining in her one-year statute of limitations, her subsequent filings were well after the statutory deadline. The question is during which of those subsequent filings, if any, the statute of limitations was tolled, and whether her final filing in October of 1999 was untimely. We take each relevant period in turn.

B. Relevant Periods

1. April 22, 1997 — September 30, 1998

The first relevant period is the period from April 22, 1997, when Griffin filed her initial petition with Judge Holschuh, to September 30, 1998, when Judge Holschuh dismissed the petition without prejudice. The Supreme Court's decision in Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), makes clear that the federal habeas statutes do not toll the statute of limitations while the federal habeas petition is pending. Section 2244(d)(2) provides for the statute of limitations to be tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. § 2244(d)(2). In Duncan, the Supreme Court held that this provides for tolling only during the pendency of state proceedings, not federal proceedings. Duncan, 533 U.S. at 180, 121 S.Ct. 2120. Accordingly, statutory tolling for Griffin's petition expired on April 24, 1997, while her...