Lee v. Lampert

• Decision Date: 02 August 2011
• Docket Number: No. 09–35276.,09–35276.
• Citation: 653 F.3d 929,2011 Daily Journal D.A.R. 11607,11 Cal. Daily Op. Serv. 9694
• Parties: Richard R. LEE, Petitioner–Appellee,v.Robert O. LAMPERT, Respondent–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

653 F.3d 929

11 Cal. Daily Op. Serv. 9694

2011 Daily Journal D.A.R. 11,607

Richard R. LEE, Petitioner–Appellee,

v.Robert O. LAMPERT, Respondent–Appellant.

No. 09–35276.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 23, 2011.Filed Aug. 2, 2011.

Janet A. Klapstein, Senior Assistant Attorney General of Oregon, Salem, OR, for the respondent-appellant.Stephen R. Sady, Chief Deputy Federal Public Defender of Oregon, Portland, OR, for the petitioner-appellee.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: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, HARRY PREGERSON, SIDNEY R. THOMAS, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.Opinion by Judge THOMAS; Concurrence by Chief Judge KOZINSKI.

OPINION

THOMAS, Circuit Judge:

This appeal presents the question of whether a credible showing of “actual innocence” under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), excuses the statute of limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. We conclude that it does, but that the petitioner failed to present sufficient evidence of actual innocence to permit review of his constitutional claims on the merits. We reverse the judgment of the district court.

I

An Oregon jury convicted Richard Lee of two counts of first degree sex abuse and two counts of first degree sodomy, for which he received a sentence of 170 months in prison. Although Lee's trial attorney provided appellate counsel with a list of potential trial errors, appellate counsel filed a “ Balfour brief” with the Oregon Court of Appeals, indicating there were no meritorious issues for appeal.¹ The Oregon Court of Appeals affirmed his conviction without opinion. Lee did not file a petition for review to the Oregon Supreme Court.

Lee petitioned for state postconviction relief, alleging ineffective assistance of counsel at trial and on appeal.² The state trial court denied the petition; the Oregon Court of Appeals affirmed; and the Oregon Supreme Court denied review. The appellate judgment became final on September 24, 2001.

Lee filed a federal habeas petition on March 11, 2002. The district court dismissed the petition as untimely, but we reversed this determination on appeal and the petition was reinstated.³ Lee filed his first amended petition on July 25, 2005, and filed a memorandum and exhibits almost two years later.

The district court granted Lee's petition. Lee v. Lampert, 607 F.Supp.2d 1204 (D.Or.2009). The court held that a showing of actual innocence tolls AEDPA's limitations period and concluded that Lee made the requisite showing. Id. at 1216–22. On the merits, the court held that Lee established his claim for ineffective assistance of counsel. Id. at 1226. The court therefore granted Lee's petition, vacated his conviction and sentence, and allowed the State of Oregon 120 days to retry or release him. Id.

The State timely appealed, and a motions panel stayed the district court order pending appeal. A panel of this court reversed the district court. Lee v. Lampert, 610 F.3d 1125 (9th Cir.2010). As a matter of first impression, the panel held that there is no actual innocence exception to override AEDPA's statute of limitations, and dismissed Lee's petition as time-barred. Id. at 1133–34. We granted rehearing en banc. Lee v. Lampert, 633 F.3d 1176 (9th Cir.2011).

We review de novo the grant of a petition for habeas corpus. Paulino v. Harrison, 542 F.3d 692, 698 (9th Cir.2008).

II

Lee concedes that he did not file his federal habeas petition within AEDPA's one-year statute of limitations period.⁴ He argues that a federal court nevertheless may review his first habeas petition upon a showing of “actual innocence” under Schlup. We agree.

We hold that a credible claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits. In recognizing an equitable exception based on a credible showing of actual innocence, we join three of our sister circuits on an issue that has divided the courts of appeal.⁵See Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005); Lopez v. Trani, 628 F.3d 1228, 1230–31 (10th Cir.2010); San Martin v. McNeil, 633 F.3d 1257, 1267–68 (11th Cir.2011).⁶

A

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). Section 2244(d)(1) “contain[s] multiple provisions relating to the events that trigger its running.” Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2561, 177 L.Ed.2d 130 (2010). The triggering events are the dates on which: direct review becomes final, an unlawful state-created impediment to filing is removed, a new constitutional right is made retroactively available, or the factual predicate of the claim(s) presented could have been discovered with “due diligence.” 28 U.S.C. § 2244(d)(1)(A)–(D).

As the Supreme Court has instructed us, AEDPA's statute of limitations is subject to equitable exceptions “in appropriate cases.” Holland, 130 S.Ct. at 2560; Porter v. Ollison, 620 F.3d 952, 959 (9th Cir.2010). Because § 2244(d) is not jurisdictional, it is “subject to a ‘rebuttable presumption’ in favor ‘of equitable tolling.’ ” Holland, 130 S.Ct. at 2560 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95–96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)).⁷

That presumption applies with particular force to AEDPA, the Court has explained, for two reasons. First, “equitable principles have traditionally governed the substantive law of habeas corpus,” and federal courts “will not construe a statute to displace courts' traditional equitable authority absent the clearest command.” Id. (citing Munaf v. Geren, 553 U.S. 674, 693, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008); Miller v. French, 530 U.S. 327, 340, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000)) (internal quotation marks omitted). Second, Congress enacted AEDPA when the presumption in favor of equitable tolling was well-established in case law, and therefore Congress was aware that courts would apply the presumption when interpreting § 2244(d). Id. at 2561. Thus, notwithstanding § 2244(d)'s silence as to an equitable exception and its express provision for statutory tolling, the Court has held that neither AEDPA's text nor its purposes “rebut” the presumption in favor of equitable tolling. Id. at 2561–62.

At the time of AEDPA's passage, federal courts had equitable discretion to hear the merits of procedurally-defaulted habeas claims where the failure to do so would result in a “fundamental miscarriage of justice,” such as the conviction of an actually innocent person. See McCleskey v. Zant, 499 U.S. 467, 502, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Schlup, 513 U.S. at 320–321, 115 S.Ct. 851; Souter, 395 F.3d at 598–99.

The actual innocence exception “serves as ‘an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty,’ guaranteeing that the ends of justice will be served in full.” McCleskey, 499 U.S. at 495, 111 S.Ct. 1454 (quoting Stone v. Powell, 428 U.S. 465, 492–93, n. 31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). It gained recognition in numerous contexts, Schlup, 513 U.S. at 320, 115 S.Ct. 851, ⁸ including where a procedural default resulted from untimely filing in state postconviction proceedings, see Souter, 395 F.3d at 599 (discussing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). We agree with the Sixth Circuit that “[a]bsent evidence of Congress's contrary intent, there is no articulable reason for treating habeas claims barred by the federal statute of limitations differently.” Id.

As with equitable tolling based on diligence and extraordinary circumstances, see Holland, 130 S.Ct. at 2562, we conclude that Congress intended for the actual innocence exception to apply to AEDPA's statute of limitations, see San Martin, 633 F.3d at 1267–68; Lopez, 628 F.3d at 1230–31; Souter, 395 F.3d at 599, 602.⁹ We presume that Congress knew of the exception when it drafted AEDPA, and “absent the ‘clearest command,’ ” we will not construe the statute to displace that equitable authority. Holland, 130 S.Ct. at 2560–61 (quoting Miller, 530 U.S. at 340, 120 S.Ct. 2246). As the Court warned in Holland:

The importance of the Great Writ, the only writ explicitly protected by the Constitution, along with congressional efforts to harmonize the new statute with prior law, counsels hesitancy before interpreting AEDPA's statutory silence as indicating a congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open.Id. at 2562 (internal citation omitted). It is difficult to imagine a stronger equitable claim for keeping open the courthouse doors than one of actual innocence, “the ultimate equity on the prisoner's side.” ¹⁰Withrow v. Williams, 507 U.S. 680, 700, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (O'Connor, J., concurring in part and dissenting in part) (noting that the Supreme Court “continuously has recognized that ... a sufficient showing of actual innocence” is normally enough, “standing alone, to outweigh other concerns and justify adjudication of the prisoner's constitutional claim”). Indeed, “the individual interest in avoiding injustice is most compelling in the context of actual innocence.” Schlup, 513 U.S. at 324, 115 S.Ct. 851.¹¹

An actual innocence exception to the limitations period is consistent with AEDPA's underlying principles. To the extent the statute aims to eliminate delay in federal habeas review, the...