Kholi v. Wall, 08-1159.
| Decision Date | 23 September 2009 |
| Docket Number | No. 08-1159.,08-1159. |
| Citation | 582 F.3d 147 |
| Parties | Khalil KHOLI, Petitioner, Appellant, v. A.T. WALL, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Judith H. Mizner, Assistant Federal Public Defender, for petitioner.
Christopher R. Bush, Special Assistant Attorney General, with whom Patrick C. Lynch, Attorney General, was on brief, for respondent.
Before TORRUELLA, SELYA and DYK,* Circuit Judges.
This appeal presents a question of first impression in this circuit. It turns on the correct interpretation of the tolling provision, 28 U.S.C. § 2244(d)(2), established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214.
The problem is easily explained. The court below held that a state-court post-conviction motion to reduce an imposed sentence, in the nature of a plea for discretionary leniency, did not fall within the scope of the tolling provision. Accordingly, the court dismissed the federal habeas petition as time-barred.
Although the question presented is one of novel impression in this circuit, four other courts of appeals have answered essentially the same question, with mixed results. Three have held that a state post-conviction motion in the nature of a plea for discretionary leniency does not give rise to tolling; the fourth has held the opposite. For the reasons that follow, we conclude that the filing of a state post-conviction motion to reduce an imposed sentence, in the nature of a plea for discretionary leniency, tolls the AEDPA's limitations period. Consequently, we reverse the order of dismissal and remand for further proceedings consistent with this opinion.
We rehearse the factual and procedural antecedents of this appeal insofar as necessary to place the crucial issue into perspective.
In December of 1993, a Rhode Island jury convicted petitioner-appellant Khalil Kholi on ten counts of first-degree sexual assault. See R.I. Gen. Laws § 11-37-2. The charges arose out of the alleged molestation of his two step-daughters. A judge of the state superior court sentenced the petitioner to two terms of life imprisonment, consecutive to one another. The state supreme court affirmed the conviction on February 29, 1996. State v. Kholi, 672 A.2d 429 (R.I.1996).
The petitioner did not move for rehearing, nor did he seek a writ of certiorari in the United States Supreme Court. Instead, he returned to the trial court and, on May 16, 1996, filed a motion to reduce his sentence pursuant to Rhode Island Superior Court Rule of Criminal Procedure 35(a).1 The trial judge denied that motion on August 27, 1996, and the state supreme court affirmed. State v. Kholi, 706 A.2d 1326 (R.I.1998). That ruling was handed down on January 16, 1998.
While the appeal from the denial of the Rule 35(a) motion was pending, the petitioner, citing ineffective assistance of counsel, applied for post-conviction relief (PCR) in the trial court. See R.I. Gen. Laws § 10-9.1-1 et seq. The application was docketed on May 23, 1997 and denied almost six years later (on April 23, 2003). The state supreme court affirmed that ruling on December 14, 2006. Kholi v. Wall, 911 A.2d 262 (R.I.2006).
On October 18, 2005—shortly before the state supreme court resolved the appeal from the denial of the original PCR application—the petitioner filed a second PCR application. This entreaty, which remains pending, alleged that the state had improperly calculated the date when he would become eligible for parole.
On September 5, 2007, the petitioner, appearing pro se, repaired to the federal district court in search of habeas relief. He named as respondent A.T. Wall, the director of the Rhode Island Department of Corrections. The respondent moved to dismiss the federal habeas petition on timeliness grounds.
The district judge referred the motion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). In a report and recommendation dated December 12, 2007, the magistrate judge embraced the majority view and concluded that a sentence reduction motion, in the nature of a plea for discretionary leniency, did not toll the AEDPA's limitations period. Absent such tolling, he regarded the habeas petition as untimely and thus recommended that it be dismissed.
On de novo review, the district judge adopted the report and recommendation and entered judgment accordingly. Kholi v. Wall, No. 07-346, 2008 WL 60194, at *1 (D.R.I. Jan.3, 2008). The district judge appended the magistrate judge's report and recommendation to his summary order.2 The district judge subsequently rejected the petitioner's request for a certificate of appealability (COA).
The petitioner proceeded to ask this court for a COA. We granted the COA and appointed counsel. Kholi v. Wall, No. 08-1159 (1st Cir. Aug. 22, 2008) (unpublished order). After full briefing and oral argument, the case is now ripe for decision.
Where, as here, the district court has dismissed a habeas petition on a procedural ground without taking evidence, we afford de novo review. Wood v. Spencer, 487 F.3d 1, 3 (1st Cir.2007).
In this case, the petitioner's state-court conviction became final on May 28, 1996, when his time for requesting a writ of certiorari elapsed.3 See Jiménez v Quarterman, ___ U.S. ___, 129 S.Ct. 681, 685, 172 L.Ed.2d 475 (2009); see also Sup. Ct. R. 13 (). Thus, the one-year period for seeking federal habeas relief began to run on that date. 28 U.S.C. § 2244(d)(1)(A).
There is no dispute that this one-year period was interrupted from May 23, 1997, through December 14, 2006, due to the pendency of the first (1997) PCR application. See id. § 2244(d)(2). Unless some other tolling mechanism is in play, however, the one-year period expired on December 19, 2006—more than eight months before the petitioner first sought federal habeas relief.
In this venue, the petitioner argues that both his second PCR application and his Rule 35(a) motion constituted tolling mechanisms. If this argument is even partially correct (that is, if either of these filings served to toll the limitations period), the federal habeas petition would be timely.4 Accordingly, we inquire as to the effect of each filing.
Although the petitioner failed to mention the 2005 PCR application in the district court, we may in our discretion afford him some latitude because he was then incarcerated and proceeding pro se. See, e.g., Raineri v. United States, 233 F.3d 96, 97 (1st Cir.2000); Prou v. United States, 199 F.3d 37, 42 (1st Cir.1999). Because the outcome is clear, we elect to address the merits of this argument.
Our analysis begins and ends with the language of the AEDPA's tolling provision. By its terms, that provision applies to state post-conviction filings directed to "the pertinent judgment or claim." 28 U.S.C. § 2244(d)(2). In a typical habeas case, then, the tolling provision applies only to those state post-conviction filings that seek reexamination of the relevant state-court conviction or sentence. See Rodríguez v. Spencer, 412 F.3d 29, 37 (1st Cir.2005) (); Voravongsa v. Wall, 349 F.3d 1, 6-7 (1st Cir.2003) (); Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir.2001) ().
The 2005 PCR application does not seek to alter (or even to reexamine) the judgment entered in the underlying criminal case. That application challenges only the proposed date of the petitioner's parole eligibility. Consequently, it does not bear a sufficient relationship to the pertinent judgment so as to trigger the tolling provision. The upshot, then, is that the 2005 PCR application is devoid of any effect on the limitations period within which the petitioner had to seek federal habeas relief. See Rodríguez, 412 F.3d at 37.
The petitioner's second tolling argument requires more discussion. The district court determined that his post-conviction motion under Rhode Island Superior Court Rule of Criminal Procedure 35(a) did not toll the AEDPA's limitations period because that motion did not challenge the validity of the pertinent conviction or sentence but, rather, amounted to nothing more than a naked plea for leniency. D. Ct. Op., 2008 WL 60194, at *3-4. The district court's view has impressive support in the case law. See Alexander v. Sec'y, Dep't of Corr., 523 F.3d 1291, 1297 (11th Cir.2008); Hartmann v. Carroll, 492 F.3d 478, 483-84 (3d Cir.2007); Walkowiak v. Haines, 272 F.3d 234, 239 (4th Cir.2001). But the case law is not uniform; one court of appeals has arrived at the opposite conclusion. See Robinson v. Golder, 443 F.3d 718, 720-21 (10th Cir.2006). It is against this chiaroscuro backdrop—a circuit split—that we approach the question presented by this appeal.
We start by noting our agreement with the district court's characterization of the petitioner's Rule 35(a) motion as a plea for leniency, simpliciter. See State v. Mendoza, 958 A.2d 1159, 1161 (R.I.2008); see also supra note 1. This court has not yet addressed whether a sentence reduction motion, in the nature of a plea for discretionary leniency, may serve as a tolling mechanism in connection with the AEDPA's limitations period.5 As said, three courts of appeals have answered this same general question in the negative (we use the descriptor "general" because, in each situation, the state rule or statute that served as the vehicle for the plea for...
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