Hemmerle v. Schriro

• Citation: 495 F.3d 1069
• Decision Date: 19 July 2007
• Docket Number: No. 06-16601.,06-16601.
• Parties: Robert HEMMERLE, Petitioner-Appellant, v. Dora SCHRIRO; Attorney General for the State of Arizona, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

495 F.3d 1069

Robert HEMMERLE, Petitioner-Appellant, v. Dora SCHRIRO; Attorney General for the State of Arizona, Respondents-Appellees.

No. 06-16601.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2007.

Filed July 19, 2007.

Michael Bernays, Phoenix, AZ, argued the cause for the petitioner-appellant. He also filed an opening brief and a reply brief.

Alan L. Amann, Assistant Attorney General of Arizona, Criminal Appeals Section, argued the cause for the respondent-appellee

and filed a brief. Also on the brief were Terry Goddard, Attorney General of Arizona and Randall M. Howe, Chief Counsel of the Arizona Criminal Appeals Section.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-04-00315-PHX-PGR.

Before: CYNTHIA HOLCOMB HALL, DIARMUID F. O'SCANNLAIN, and SANDRA S. IKUTA, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

Once again, we are asked to decide whether a federal petition for writ of habeas corpus was properly dismissed as time-barred because filed outside the Antiterrorism and Effective Death Penalty Act's one-year statute of limitations.

I

A

Robert Hemmerle was convicted after a jury trial of second-degree murder and endangerment after running a red light and killing another motorist while operating his vehicle under the influence of alcohol. He was sentenced to serve concurrent terms of 16 years on the second-degree murder conviction and 27 months on the endangerment conviction. Hemmerle filed a direct appeal in state court on November 20, 1997. He also filed a state post-conviction relief ("PCR") notice on November 21, 1997, in which he checked off a box indicating that he was alleging ineffective assistance of his trial counsel.¹

Hemmerle's conviction was affirmed by the Arizona Court of Appeals on October 29, 1998. The main issue raised on direct appeal was whether the trial court abused its discretion by admitting into evidence the results of a blood-alcohol content test when the State consumed most of the blood sample in its own testing procedures. Hemmerle chose not to appeal to the Arizona Supreme Court; the mandate from the direct appeal issued on December 4, 1998.

In his collateral PCR notice proceedings, Hemmerle was granted numerous extensions within which to file a brief. A final extension was asked for and granted by minute order dated September 11, 1998. On December 1, 1998, because no petition or other memoranda had been filed, Hemmerle's PCR notice was summarily dismissed. Hemmerle then filed a second PCR notice on January 4, 1999 and later filed a "Memorandum in Support of Petition for Post-Conviction Relief" in which he argued that his trial attorney, Joel Thompson, was ineffective because he instructed him to testify falsely during trial. Briefly stated, Hemmerle claimed that Thompson told him to testify that he saw signs at Toolie's Bar stating that the bar would call a cab if a patron felt he was too intoxicated to drive home. Hemmerle contended that this testimony backfired because the jury took his having seen the sign and having failed to alert the bar that he was unable to drive as evidence of extreme indifference to human life. In addition, Hemmerle alleged that Thompson was constitutionally ineffective because he failed to investigate and to present evidence of mental illness (namely, Hemmerle's alleged bipolar disorder) to rebut the mens rea of the second-degree murder charge.

The Superior Court of Arizona for Maricopa County rejected outright Hemmerle's claim of ineffective assistance based upon failure to investigate and to present evidence of mental illness. It found that relief on such a claim was foreclosed by State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (1997).² It ordered an evidentiary hearing, however, on Hemmerle's claim that Thompson instructed him to lie on the witness stand. After conducting this evidentiary hearing, the court rejected Hemmerle's argument, concluding that he could "not show that the result of the proceeding would have been different." Hemmerle petitioned the Arizona Court of Appeals to review this judgment, but on October 9, 2002, a panel of that court issued an order denying review. Hemmerle next appealed to the Arizona Supreme Court; on February 20, 2003, his petition for review was denied. The record was returned to the Court of Appeals that same day. On March 19, 2003, the Court of Appeals sent to the Clerk of Maricopa County Superior Court a certified copy of the order denying review along with transcripts and other records.

B

On February 12, 2004, Hemmerle filed a petition for writ of habeas corpus in federal district court under 28 U.S.C. § 2254. The petition contained two grounds for relief: (1) that Hemmerle's Sixth, Fifth, and Fourteenth Amendment rights to effective assistance of counsel were violated because his attorney failed to raise his bipolar disorder at trial; and (2) that Hemmerle's Sixth and Fourteenth Amendment rights to effective assistance of counsel were violated because his attorney advised him to testify falsely at trial. In its answer to Hemmerle's petition, the State argued that the habeas petition was not filed within the one-year time limit set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). The district court allowed time for Hemmerle to file a response.

After consideration of the petition and the various replies, the magistrate judge recommended that Hemmerle's petition be dismissed in its entirety as untimely filed. The district court agreed with the determination of the magistrate judge and adopted his recommendations. The district court concluded that direct review of Hemmerle's conviction was final for purposes of AEDPA on the date that his ability to file an appeal to the Arizona Supreme Court expired and not on the date that the mandate issued. It also concluded that a 33-day gap — from December 1, 1998 until January 4, 1999 — between Hemmerle's first and second state PCR proceedings was not tolled because he failed to raise a discernable claim in his first petition to which the second petition could relate back. Finally, the district court concluded that Hemmerle's second PCR petition became final on February 20, 2003, the date the Arizona Supreme Court denied review. Accordingly, 356 days elapsed between the denial of his second PCR and the February 12, 2004 filing of his § 2254 petition. With the addition of the 33 days when no properly filed application for state post-conviction relief was pending, the district court concluded that Hemmerle's petition was untimely by 24 days.

The district court granted a certificate of appealability on its procedural rulings and Hemmerle filed a timely notice of appeal.

II

A

Hemmerle first challenges the district court's conclusion that his direct appeal became final on the date that his ability to seek review in the Arizona Supreme Court elapsed. He contends that the proper date for finality is the date that the mandate issued, here December 4, 1998. As support, he cites our decision in Bunney v. Mitchell, 262 F.3d 973 (9th Cir.2001). The State, in contrast, argues that the limitations period runs from the date in which Hemmerle's time for seeking review of the Court of Appeals' decision with the Arizona Supreme Court expired.

The relevant portion of the federal habeas statute provides:

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 the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.

28 U.S.C. § 2244(d)(1)(A).

We had occasion to interpret this text in a similar setting in Wixom v. Washington, 264 F.3d 894 (9th Cir.2001). In Wixom, the district court held that the defendant's conviction was "final" upon issuance of the mandate but found that his state post-conviction petition was not properly filed and therefore did not toll the statute of limitations. It dismissed his petition as time-barred. Id. at 896. We affirmed the dismissal, but on different grounds. We disagreed with the district court that it was the issuance of the mandate that rendered Wixom's conviction final for AEDPA purposes. Id. at 897. We noted that "a mandate is not a decision terminating review" and concluded that "because the denial of his appeal is a decision terminating review, and Wixom did not appeal this denial to the Washington Supreme Court, we conclude that it marks `the conclusion of direct review.'" Id. at 897-98. In an important footnote, we rejected an argument identical to that made here by Hemmerle. We explained "[t]hat the Washington courts have interpreted the term `final' in § 10.73.090 to mean the date at which the mandate issues is their prerogative. We, as stated above, are constrained by Congress' definition of the term." Id. at 898 n. 4; see also Clay v. United States, 537 U.S. 522, 531, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ("The words `by the conclusion of direct review or the expiration of the time for seeking such review' make it clear that finality for the purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule.").

We applied the rule of Wixom again in White v. Klitzkie, 281 F.3d 920 (9th Cir. 2002), in interpreting § 2244(d)(2). There, "White argue[d] that the Supreme Court of Guam's decision was not final until the mandate was entered on January 26, 1999." Id. at 924 n. 4. We rejected that argument, citing Wixom and noting that "it is the decision of the state appellate court, rather than the ministerial act of entry of the mandate, that signals the conclusion of review." Id.

Applying the plain statutory text, our decisions in Wixom and White, and the applicable Arizona rules, it is clear that Hemmerle's direct appeal was...