Hernandez v. Caldwell

• Decision Date: 05 May 2000
• Docket Number: CA-97-717-5-H,No. 98-7640,98-7640
• Citation: 225 F.3d 435
• Parties: (4th Cir. 2000) PETRA E. HERNANDEZ, Petitioner-Appellant, v. CAROL CALDWELL; MACK JARVIS, Respondents-Appellees. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 435

225 F.3d 435 (4th Cir. 2000)

PETRA E. HERNANDEZ, Petitioner-Appellant, v. CAROL CALDWELL; MACK JARVIS, Respondents-Appellees.

No. 98-7640 (CA-97-717-5-H)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 5, 2000

Decided: August 28, 2000

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge.

COUNSEL ARGUED: Letitia C. Echols, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant.Clarence Joe DelForge, III, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina for Appellees. ON BRIEF: Linda B. Weisel, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant. Michael F. Easley, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

Reversed and remanded by published opinion. Judge Michael wrote the opinion, in which Judge Wilkins and Judge Traxler joined.

OPINION

MICHAEL, Circuit Judge:

This appeal raises a new question about calculating the limitations period for federal habeas corpus petitioners whose convictions became final before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was signed into law. Petra Hernandez petitioned for a writ of habeas corpus under 28 U.S.C.§ 2254, alleging that her inability to communicate effectively in English rendered her guilty plea and sentence on state drug charges constitutionally defective. The district court dismissed the petition as untimely, concluding that AEDPA's one-year statute of limitations (codified at 28 U.S.C. § 2244(d)(1)) expired between the day the state court denied Hernandez's motion for appropriate relief and the day she petitioned the state court of appeals for review of that decision. Relying on our recent precedent, we hold that the statute of limitations should have been tolled during that time. On the new question, we hold that the computation of the limitations period is governed by Fed. R. Civ. P. 6(a), with the result that Hernandez's federal habeas petition was timely filed on the very last day allowed. We therefore reverse and remand for further proceedings.

I.

Petra Hernandez was indicted in the Superior Court of Cumberland County, North Carolina, for conspiracy to traffic in cocaine, trafficking in cocaine by possession, and trafficking in cocaine by transportation. On May 29, 1992, she pled guilty to all three charges. Thirteen months later she was sentenced to three consecutive terms of twenty five years in prison, for a total of seventy-five years. Hernandez appealed her plea and sentence to the North Carolina Court of Appeals; that appeal was dismissed on September 26, 1994. Hernandez then petitioned the court of appeals for certiorari; that petition was denied on February 25, 1995.

Next, Hernandez filed a motion for appropriate relief (MAR) in Cumberland County Superior Court on April 23, 1997. She alleged that her plea was involuntary because she was required to enter it without the assistance of an interpreter, that the sentencing court's refusal to allow her to testify in Spanish denied her the right to testify in her own behalf, and that her counsel was ineffective in failing to request an interpreter for all stages of the criminal prosecution. The MAR was denied in an order dated August 8, 1997. A copy of that order was mailed from the superior court clerk's office on August 12 and received by Hernandez's counsel on August 14, 1997. That same day, August 14, 1997, Hernandez petitioned the North Carolina Court of Appeals for certiorari, seeking review of the order denying the MAR. The petition for certiorari was denied on September 8, 1997, and Hernandez's counsel received a copy of the order on the following day, September 9, 1997.

On September 9, 1997, Hernandez filed a petition for a writ of habeas corpus in federal court for the Eastern District of North Carolina, claiming the same errors that she had asserted in her MAR. The State of North Carolina moved for summary judgment on the merits and on the procedural ground that Hernandez's habeas petition was untimely under the one-year limitation of 28 U.S.C.§ 2244(d). The district court dismissed Hernandez's petition, agreeing that it was barred by § 2244(d). Hernandez filed a notice of appeal, and the district court granted a certificate of appeal-ability.

II.

The State of North Carolina has moved to dismiss this appeal, arguing that the district court erred in granting Hernandez a certificate of appeal-ability. As the State points out, a certificate of appeal-ability may be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The State contends that Hernandez's claim of procedural error does not implicate a constitutional right and that we therefore lack subject matter jurisdiction over her appeal. We disagree. As the Supreme Court has recently explained, "[i]n setting forth the preconditions for issuance of a COA [certificate of appeal-ability] under § 2253(c), Congress expressed no intention to allow [district] court procedural error to bar vindication of substantial constitutional rights on appeal." Slack v. McDaniel, --- U.S. ---, 120 S. Ct. 1595, 1603 (2000). In this case the district court dismissed Hernandez's petition on procedural grounds without ever reaching her underlying constitutional claims. Under these circumstances, the certificate of appeal-ability was properly issued if Hernandez has shown "[1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at ---, 120 S. Ct. at 1604. Hernandez claims that her poor command of English rendered her plea involuntary, her sentencing hearing unconstitutional, and her counsel ineffective. These allegations state a "valid claim of the denial of a constitutional right." See, e.g., Franklin v. Hightower, 215 F.3d 1196, 1199-1200 (11th Cir. 2000); see also Fernandez v. Rodriguez, 761 F.2d 558, 561-62 (10th Cir. 1985). Thus, Hernandez has satisfied the first of the requirements for a certificate of appeal-ability under Slack . And since we hold that the district court's procedural ruling was wrong, see part III, Hernandez has satisfied the second requirement as well. The motion to dismiss is denied.

III.

Hernandez contends that her federal habeas petition was timely because she filed it on the last day available under AEDPA. AEDPA was signed into law on April 24, 1996, and became effective immediately.

It provides:

A 1-year period of limitation shall apply to an application for 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 -

(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. . . .

28 U.S.C. § 2244(d)(1)(A).

For prisoners like Hernandez, whose convictions became final before AEDPA was enacted, retroactive application of§ 2244(d) (1)(A) would either summarily extinguish their federal habeas claims or impose an unreasonably short limitations period. See Brown v. Angelone, 150 F.3d 370, 372-73 (4th Cir. 1998). In Brown we recognized that Congress intended no such retroactive effect. Consequently, we held that for prisoners whose convictions became final prior to AEDPA's enactment, the limitations period began to run with AEDPA's effective date. See id. at 375. Although the parties and the district court did not have the benefit of Brown when the district court made its decision, all agreed that Hernandez was entitled to file her federal habeas petition within one year of AEDPA's enactment, excluding any time when the statute was tolled.

The running of § 2244(d)(1)'s "period of limitation" is tolled during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The district court determined that Hernandez's MAR, filed April 23, 1997, tolled the one-year limitations period exactly one day before it was to expire. But the clock started running again, according to the district court, on August 8, 1997, when the Cumberland County superior court denied Hernandez's MAR. Thus, by the time Hernandez's counsel received a copy of the denial order in the mail on August 14, 1997, Hernandez's federal habeas claim was barred by the one-year limit.

Since the district court's decision, we have rejected this "gap theory," under which the statute of limitations runs in fits and starts during the "gaps" between the decisions of state post-conviction courts and the initiation of the next stages of state review. See Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). Instead, we held that an application for post-conviction or other collateral review is "pending" from initial filing until final disposition by the state courts. See id. In Hernandez's case that would mean that the limitations period was tolled until September 8, 1997, when the North Carolina Court of Appeals denied her petition for certiorari.

The State attempts to distinguish Taylor, arguing that its holding should be limited to petitions by capital defendants who had already initiated post-conviction review as of AEDPA's effective date. We are not persuaded. There is no reason to give the word "pending" in § 2244(d)(2) a different meaning in non-capital cases. Moreover, the State's attempt to resurrect the gap theory contradicts the explicit rationale of Taylor, where we recognized that a "`contrary construction would be antithetical to the entire theory of state remedy exhaustion and would...