Jenkins v. Johnson

• Citation: 330 F.3d 1146
• Decision Date: 20 May 2003
• Docket Number: No. 99-36194.,99-36194.
• Parties: Michael Wayne JENKINS, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

330 F.3d 1146

Michael Wayne JENKINS, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Respondent-Appellee.

No. 99-36194.

United States Court of Appeals, Ninth Circuit.

Argued March 7, 2002.

Submitted May 13, 2003.

Filed May 20, 2003.

Steven T. Wax and Lisa Hay, Federal Public Defender's Office, Portland, OR, for the petitioner-appellant.

Daniel J. Casey, Justice Department, State of Oregon, Salem, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon Ann Aiken, District Judge, Presiding. D.C. No. CV-98-00590-ALA.

Before B. FLETCHER, O'SCANNLAIN, and BERZON, Circuit Judges.

Opinion by Judge BETTY B. FLETCHER. Dissent by Judge O'SCANNLAIN.

OPINION

BETTY B. FLETCHER, Circuit Judge.

This case poses the question of when a federal habeas petitioner's state-court petition for post-conviction relief counts as "properly filed" and as "pending" for the purposes of tolling the Anti terrorism and Effective Death Penalty Act's ("AEDPA's") one-year limitations period. Petitioner Michael W. Jenkins ("Jenkins") filed a post-conviction petition in Oregon state court, which the state court dismissed in September 1996. Due to a clerical error in the state court, Jenkins' attorney received no notice of the ruling until January 1997. As a result, Jenkins missed the state-law deadline for filing a late notice of appeal, and the Oregon Court of Appeals rejected his notice of appeal. Jenkins then appealed the Court of Appeals' ruling to the Oregon Supreme Court, and, after his appeal was rejected, filed a federal habeas petition in May 1998. The district court dismissed Jenkins' petition as time-barred but issued a certificate of appeal ability (COA) covering claims respecting AEDPA's statute of limitations and tolling provisions. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and now reverse and remand.

I. FACTUAL BACKGROUND

In 1980, an Oregon state court sentenced Jenkins to four consecutive twenty-year sentences following his conviction for robbery, kidnaping, sodomy, attempted murder, and two counts of rape. His conviction became final in 1981. Since then, Jenkins has filed four post-conviction petitions in state court, only the last of which is relevant here. Jenkins filed his fourth amended post-conviction petition in Oregon state court on March 13 or 14, 1996. The state replied immediately with a motion to dismiss alleging that (1) the petition was time-barred by Oregon Revised Statutes ("ORS") § 138.510(3), and (2) the petition was a "successive" petition barred by ORS § 138.550(3).

Roughly one month later, on April 24, 1996, the AEDPA took effect. See Pub.L. No. 104-132, 110 Stat. 1214. Because Jenkins' state court conviction had become final prior to that date, the one-year statute of limitations imposed under 28 U.S.C. § 2244(d)(1) began running the next day unless it was tolled pursuant to 28 U.S.C. § 2244(d)(2).

On August 8, 1996, the Oregon post-conviction court issued a letter ruling granting the state's motion to dismiss Jenkins' fourth amended petition for post-conviction relief. The court offered no explanation for its dismissal and did not indicate the grounds on which the state prevailed: its timeliness argument or its claim that Jenkins' petition was successive. The post-conviction court entered the judgment of dismissal on September 9, 1996.

Under Oregon law, Jenkins' notice of appeal from this decision should have been filed by October 9, 1996. However, Jenkins' attorney was unaware of the September 9 judgment until January 28, 1997. Although it was normal practice for the court clerk to mail a copy of a judgment once it was entered, a new court employee apparently did not do so in Jenkins' case.¹ Pursuant to ORS § 138.071(4), Jenkins filed a motion for leave to file a late notice of appeal on January 28, 1997, the same day he learned of the September 9 judgment. Jenkins filed a notice of appeal concurrently, some three and a half months after the October 9 deadline.

On March 4, 1997, the Oregon Court of Appeals denied Jenkins' motion to file a delayed appeal "without prejudice to seeking post-conviction relief" because the request for leave to file the delayed notice of appeal was filed more than ninety days after the September 9 entry of the order of judgment. ORS § 138.071(4)(c) imposes a ninety-day limit on filing requests for leave to file a delayed notice of appeal.

Jenkins petitioned for review of this order. The Oregon Supreme Court denied Jenkins' petition without comment on May 27, 1997. Jenkins filed his federal habeas corpus petition on May 11, 1998.² Accordingly, because Jenkins did not file his federal petition until more than a year after AEDPA's effective date, it is untimely unless the statute of limitations was tolled.

The district court had jurisdiction over Jenkins' petition pursuant to 28 U.S.C. §§ 2241 and 2254. Relying on this court's decision in Dictado v. Ducharme, 189 F.3d 889, 892 (9th Cir.1999) (Dictado I), the district court determined that the one-year statute of limitations imposed by AEDPA had not been tolled and therefore dismissed Jenkins' petition as time-barred. The district court issued a certificate of appeal ability (COA) covering Jenkins' claims respecting AEDPA's statute of limitations and tolling provision, which are now presented in this appeal.

II. DISCUSSION

A. Standard of Review

We review de novo a district court's dismissal of a 28 U.S.C. § 2254 habeas petition based on a statute of limitations. See Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir.2001).

B. Application of AEDPA Statute of Limitations

AEDPA's provisions apply to this case because Jenkins' petition was filed after the Act's April 24, 1996 effective date. Lopez v. Thompson, 202 F.3d 1110, 1116 n. 5 (9th Cir.2000). AEDPA imposes a one-year statute of limitation on habeas corpus petitions filed by state prisoners in federal court. 28 U.S.C. § 2244(d)(1). State prisoners like Jenkins, whose convictions became final prior to April 24, 1996, have a one-year grace period in which to file their petitions. Calderon v. United States Dist. Ct. (Beeler), 128 F.3d 1283, 1287 (9th Cir.1997), overruled in part on other grounds by Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th Cir.1998) (en banc). The grace period, however, is tolled statutorily during any time in which a properly filed application for post-conviction relief is pending before the state court. See 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir.1999).

Jenkins contends that he is entitled to statutory tolling sufficient to render his § 2254 petition timely. In the alternative, he maintains that any period during which the limitation period was not statutorily tolled should nonetheless be equitably tolled. The state counters that Jenkins' fourth amended state petition was neither "properly filed" nor "pending" within the meaning of 28 U.S.C. § 2244(d)(2), and that Jenkins is not entitled to tolling.

1. Was Jenkins' petition "properly filed"?

In Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), the United States Supreme Court considered whether a petition for state post-conviction relief containing claims that were procedurally barred under state law could ever be considered "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2). The Court concluded that such a claim could be considered properly filed under certain circumstances. Specifically, the Court rejected the argument that an application is not properly filed unless it complies with all mandatory procedural requirements that would bar review of the merits of the petition. Bennett, 531 U.S. at 8, 121 S.Ct. 361.

Bennett noted that a petition is technically filed "when it is delivered to, and accepted by, the appropriate court officer for placement into the official record." Id. The court determined that such a petition is "properly filed" for § 2244(d)(2) purposes:

when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.

Id. The Court expressly distinguished between statutes that place a condition on filing, as opposed to statutes that impose a condition to obtaining relief. Id. at 11, 121 S.Ct. 361. As the Court noted, "the question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Id. at 9, 121 S.Ct. 361 (emphasis in original).

Although the Bennett Court clarified that the § 2244(d)(2) inquiry should center on whether any state procedural bar aims specifically at preventing a petition's filing, the Court explicitly expressed "no view on the question of whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed." Id. at 9 n. 2, 121 S.Ct. 361.

Following the Court's decision in Bennett, this court withdrew Dictado I and replaced it with Dictado v. Ducharme, 244 F.3d 724 (9th Cir.2001) (Dictado II). In Dictado II, a case not unlike this one, we considered the timely filing question that the Court declined to reach in Bennett: whether a petition could be considered "properly filed" when it had been dismissed by the state supreme court as both untimely and repetitive. We looked to the Fifth Circuit's decision in Smith v. Ward, 209 F.3d 383 (5th Cir.2000), which held that a time limitation is not a filing requirement as long as it contains exceptions. According to Smith, if a statute requires the state court to look at the petition to consider whether certain exceptions might apply, then it is not an absolute bar to filing, but merely a limitation on a court's ability to grant relief. Id. at 385.

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