Lee v. Lampert

• Decision Date: 06 July 2010
• Docket Number: No. 09-35276.,09-35276.
• Parties: Richard R. LEE, Petitioner-Appellee,v.Robert O. LAMPERT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

610 F.3d 1125

Richard R. LEE, Petitioner-Appellee,v.Robert O. LAMPERT, Respondent-Appellant.

No. 09-35276.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 2009.

Filed July 6, 2010.

Stephen R. Sady, Chief Deputy Federal Public Defender of Oregon, argued the cause for the petitioner-appellee and filed the briefs. Lynn Deffebach, Research and Writing Attorney, also was on the briefs.

Janet A. Klapstein, Senior Assistant Attorney General of Oregon, argued the cause for the respondent-appellant and filed the briefs. John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, Carolyn Alexander, Senior Assistant Attorney General, and Erin C. Lagesen, Senior Assistant Attorney General, also were on the briefs.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, Senior District Judge, Presiding. D.C. No. 1:02-cv-00300-CL.

Before DIARMUID F. O'SCANNLAIN and N. RANDY SMITH, Circuit Judges, and CHARLES R. WOLLE,^* Senior District Judge.

Concurrence by Judge N.R. SMITH.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether to recognize a judge-made exception to the statute of limitations for federal habeas relief in the case of a state prisoner who makes a showing of actual innocence in his original petition.

I

An Oregon state court jury convicted Richard Lee of two counts of first-degree sexual abuse and two counts of sodomy of a four-year-old named Matthew. Lee appealed, but his counsel filed the Oregon equivalent of an Anders brief, and the Oregon Court of Appeals affirmed the conviction. Lee did not seek review in the Oregon Supreme Court, so direct review became final on September 30, 1996.

Lee timely filed for state postconviction relief. He alleged inter alia, that he received ineffective assistance of counsel regarding the initial exclusion of evidence concerning another suspect, the appeal of the same issue, the failure to call an expert witness on the reliability of child testimony, and the calling of witnesses harmful to the defense. But his petition was denied. The Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review. State postconviction proceedings thus became final on September 24, 2001.

Lee petitioned for habeas relief in federal district court, again alleging inter alia, ineffective assistance of counsel. Initially, the district court, relying on a magistrate judge's recommendation that Lee did not appeal the state trial court's denial of postconviction relief, dismissed his petition as untimely under the one-year federal statute of limitations for seeking federal habeas relief. 28 U.S.C. § 2244(d)(1). We reversed. Lee v. Lampert, 92 Fed.Appx. 532 (9th Cir.2004). Lee then filed an amended petition in 2005, which was held in abeyance pending determination of the retroactivity of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). After resolution of that issue, the magistrate judge again recommended denying the habeas petition.

But this time the district court disagreed. After conducting several evidentiary hearings over the fall and winter of 2008, it granted the petition for a writ of habeas corpus on March 24, 2009, finding that Lee established actual innocence and ineffective assistance of counsel and ordering Oregon to release or to retry Lee. Lee v. Lampert, 607 F.Supp.2d 1204, 1221-22, 1226 (D.Or.2009). The State timely appealed and a motions panel stayed the district court order, placing the case on expedited calendar for our review.

II

The State contends that Lee's petition for a writ of habeas corpus is simply time-barred. Lee responds that the district court properly applied an “actual innocence” exception to the one-year statute of limitations for his original petition.

A

We begin, as always, with the text of the statute. AEDPA provides 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 specifies that the one-year period runs from the latest of four dates:

(A) the date on which the judgment became final by the conclusion direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id. § 2244(d)(1)(A)-(D) (emphases added). The limitations period is tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).

So written, the statute establishes three “very specific exceptions” to the primary date for the running of the limitations period, that is, the date on which direct review becomes final. David v. Hall, 318 F.3d 343, 346 (1st Cir.2003); Felder v. Johnson, 204 F.3d 168, 172 (5th Cir.2000) (similarly contrasting the date on which direct review becomes final and the other “three circumstances”). Those exceptions involve state-created impediments, new constitutional rights, and diligent discovery of new facts. 28 U.S.C. § 2244(d)(1)(B)-(D). Notably absent from this enumeration of exceptions is an “actual innocence” exception.

B

The parties do not dispute that Lee did not timely file his federal habeas petition, and they are correct. Lee filed for state postconviction relief nearly a year and a half after his direct appeal became final. ¹ Then, after his state postconviction relief proceedings ended, during the pendency of which the limitations period is tolled,² Lee waited more than six months to file for federal habeas relief. All told, Lee filed his federal habeas petition well after the one-year statute of limitations had expired. Lee does not allege, with good reason, that one of the other start dates for the statute of limitations is applicable: the state created an impediment to filing, 28 U.S.C. § 2244(d)(1)(B), a new constitutional right relevant to his case had been announced id. § 2244(d)(1)(C), or he discovered new facts through the exercise of due diligence. Id. § 2244(d)(1)(D).

Despite his untimeliness, the district court held, and Lee maintains in response to the State's argument, that he is entitled to have the claims in his original petition heard on the merits if he makes a showing of actual innocence pursuant to Schlup v. Delo, which allowed such a gateway through limitations on second or successive habeas petitions. 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); see House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (applying gateway to exhaustion requirements). The question for us is whether there also is such a “gateway” actual innocence exception through the statute of limitations for original petitions. This is a question of first impression in our circuit. Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir.2002) (“express[ing] no opinion” on “whether surviving the rigors of this [ Schlup ] gateway has the consequence of overriding AEDPA's one-year statute of limitation, a legal question not yet decided by this Circuit or the Supreme Court.”).

But we do not write on a blank slate. Four circuits have held that there is no actual innocence exception serving as a gateway through AEDPA's statute of limitations to the merits of a petitioner's constitutional claims in original petitions Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir.2005) (Easterbrook, J.); David v. Hall, 318 F.3d 343, 347 (1st Cir.2003) (Boudin, J.); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.2002) (Smith, J.); Flanders v. Graves, 299 F.3d 974, 976-78 (8th Cir.2002) (R. Arnold, J.), while one circuit has held that there is such an exception. Souter v. Jones, 395 F.3d 577, 585 (6th Cir.2005) (Moore, J.).

C

In Holland v. Florida, --- U.S. ----, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the Court considered whether AEDPA's statute of limitations period is subject to equitable tolling. Id. at 2560-63. Agreeing with all eleven circuits, the Court held that it is. The Court began its analysis by reiterating the well-recognized principle that nonjurisdictional statutes of limitation are subject to a rebuttable presumption in favor of equitable tolling. Id. at 2561. Because AEDPA's statute of limitations is nonjurisdictional, the only inquiry before the Court was whether there was sufficient evidence to rebut the presumption. The Court considered various textual arguments, such as the canon of inclusio unius est exclusio alterius, but concluded that there was not sufficient evidence to overcome the presumption. Id. at 2562.

Here, by contrast, there is no presumption that nonjurisdictional statutes of limitations are normally subject to an actual innocence exception. No court has ever held that there is such a presumption, and for good reason: an actual innocence exception would not make sense in the context of any statute of limitations except the one at issue here. Nor is the actual innocence exception a species of equitable tolling, such that the presumption in favor of equitable tolling entails a presumption in favor of an actual innocence exception. Quite the contrary, the actual innocence exception is not a type of tolling because it does not involve extending a statutory period for a particular amount of time. Moreover, the actual innocence exception has nothing to do with failing to meet a deadline because of extraordinary circumstances, which is the situation addressed by equitable...