McClendon v. Sherman

• Decision Date: 07 May 2003
• Docket Number: No. 01-2608.,01-2608.
• Citation: 329 F.3d 490
• Parties: Demetrius McCLENDON, Petitioner-Appellant, v. Terry SHERMAN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

329 F.3d 490

Demetrius McCLENDON, Petitioner-Appellant, v. Terry SHERMAN, Warden, Respondent-Appellee.

No. 01-2608.

United States Court of Appeals, Sixth Circuit.

Argued January 28, 2003.

Decided and Filed May 7, 2003.

Craig A. Daly (argued and briefed), Detroit, MI, for Petitioner-Appellant.

Bethany L. Scheib, Office of the Atty. Gen., Raina I. Korbakis (argued and briefed), State of Michigan, Dept. of Atty. Gen., Habeas Corpus Div., Lansing, MI, for Respondent-Appellee.

Before GUY and MOORE, Circuit Judges; BECKWITH, District Judge.^*

OPINION

MOORE, Circuit Judge.

Petitioner Demetrius McClendon appeals from the district court's grant of summary judgment to the Respondent, arguing that the district court incorrectly determined that McClendon's habeas corpus petition was filed outside the statute of limitations provided in 28 U.S.C. § 2244(d)(1). McClendon argues that the district court incorrectly calculated his limitation period as having begun upon the conclusion of direct review of his conviction, rather than from the denial of his state court Motion for Relief from Judgment, and that he was entitled to equitable tolling of the statute of limitations. Because the statute of limitations began to run upon the conclusion of his direct appeal, and because McClendon has not demonstrated that he is entitled to equitable tolling, we AFFIRM the district court's decision.

I. BACKGROUND

In November of 1991, McClendon was convicted by a jury on two counts of possession with intent to deliver more than 650 grams of cocaine. He was sentenced to two consecutive terms of life in prison. The Michigan Supreme Court finally denied McClendon's direct appeal on August 28, 1995.

On April 23, 1997, McClendon filed a Motion for Relief from Judgment in the state trial court, arguing, among other things, that he had been denied effective assistance of counsel on his direct appeal. That motion for relief was denied, and the Michigan Supreme Court finally denied McClendon's application for leave to appeal in those proceedings on November 29, 1999.

McClendon filed a habeas corpus petition in federal court on November 28, 2000, almost — but not quite — a year after his state court Motion for Relief from Judgment was ultimately denied. The district court granted the Warden's motion for summary judgment, ruling that the petition was not filed within the one-year statute of limitations provided for in 28 U.S.C. § 2244(d)(1). The court reasoned that the statute of limitations began to run on April 24, 1996, and that when McClendon filed his Motion for Relief from Judgment on April 23, 1997, the limitation period was tolled with one day remaining. The clock began to run again when the Michigan Supreme Court finally denied McClendon leave to appeal, and the limitation period expired on December 1, 1999. The district court rejected McClendon's argument that he was entitled to equitable tolling, because McClendon's statements in his affidavit that "[w]hen the ADEPA [sic] in April 23, 1996 was enacted I was not aware of the one (1) year statute of limitation," and that "I was not aware and had no notice that the one (1) year statute would run from April 23, 1996 for inmates whose convictions and appeal as of right had been completed before the date," Joint Appendix ("J.A.") at 120-21, were conclusory, and because he offered no explanation for his ignorance.

McClendon timely appealed, and the district court granted a certificate of appealability to determine whether McClendon's petition should be barred as untimely. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We generally review a district court's disposition of a habeas corpus petition de novo. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001). A district court's decision not to apply equitable tolling is reviewed de novo when the facts are not disputed "and the district court determined as a matter of law that there were no grounds that would justify equitable tolling." Dunlap v. United States, 250 F.3d 1001, 1007-08 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001).

II. ANALYSIS

This case requires us to determine whether Demetrius McClendon's delay in filing his petition for habeas corpus will prevent him from obtaining a federal forum to challenge the two life-sentences he received for his drug offense. According to 28 U.S.C. § 2244(d)(1), state prisoners have a one-year period in which they may file a petition for habeas corpus. Because that statute of limitations is not jurisdictional, however, state prisoners who fail to file timely petitions may still file federal habeas corpus petitions if the prisoners can show that they are entitled to an equitable tolling of the statute of limitations. Dunlap, 250 F.3d at 1007. McClendon neither filed within the statutory limitation period nor showed that he was entitled to equitable tolling, so the district court correctly granted summary judgment to the Respondent.

A. The Statute of Limitations

The principal question in determining whether McClendon complied with the statutory limitation period is when McClendon's statute began to run. Section 2244(d)(1)(A) provides that, for purposes of this case, the one-year period of limitations begins to run on "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). In Austin v. Mitchell, 200 F.3d 391 (6th Cir.1999), cert. denied, 530 U.S. 1210, 120 S.Ct. 2211, 147 L.Ed.2d 244 (2000), we held that prisoners whose convictions became final before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") were given a one-year grace period in which they could file their petitions, with the grace period beginning April 24, 1996. Id. at 393.

McClendon's conviction became final on August 28, 1995, and his statute of limitations thus began to run on April 24, 1996. In Payton v. Brigano, 256 F.3d 405 (6th Cir.2001), cert. denied, 534 U.S. 1135, 122 S.Ct. 1081, 151 L.Ed.2d 981 (2002), we held that a conviction becomes final for § 2244(d) purposes when direct review concludes, not when the petitioner has exhausted all state remedies. Id. at 408. Section 2244 explicitly distinguishes between the conclusion of direct review, after which the limitation period begins to run, 28 U.S.C. § 2244(d)(1)(A), and post-conviction remedies, during which the limitation period is merely tolled, id. § 2244(d)(2). "The plain language of the statute indicates that an application for state post conviction or other collateral relief does not serve to delay the date on which a judgment becomes final. Rather, such limitations merely toll the running of the statute of limitations." Payton, 256 F.3d at 408 (quotation omitted). Here, McClendon's direct review ended on August 28, 1995, when the Michigan Supreme Court refused to reconsider its decision denying McClendon leave to appeal his conviction. Under the one-year grace period of Austin, McClendon's statute of limitations began to run on April 24, 1996, the date on which AEDPA became effective. Austin, 200 F.3d at 393.

We reject McClendon's contention that whenever a prisoner raises an allegation in his state post-conviction proceedings that he was denied the effective assistance of counsel on direct appeal, his conviction does not become final until those state post-conviction proceedings have ended. If McClendon were correct that ineffective assistance of appellate counsel claims are necessarily part of the direct review process, his conviction would not have become final until November 29, 1999, when his Motion for Relief from Judgment was finally denied, and his federal petition would have been timely when he filed it on November 28, 2000. Although McClendon may be correct that it is practically impossible to raise an ineffective assistance of appellate counsel claim during the actual direct appeal, that difficulty does not require, as McClendon suggests, that all ineffective assistance of appellate counsel challenges be treated as direct appeals. McClendon draws this proposition from Payton v. Brigano, 256 F.3d at 409 n. 4, and White v. Schotten, 201 F.3d 743 (6th Cir.), cert. denied, 531 U.S. 940, 121 S.Ct. 332, 148 L.Ed.2d 267 (2000), in which we treated Ohio prisoners' ineffective assistance of appellate counsel claims as part of the direct review process.

Payton and White do not, however, support the general proposition that when a prisoner raises in state post-conviction proceedings a claim of ineffective assistance of appellate counsel, the prisoner's conviction is not considered final until those post-conviction proceedings conclude. Even if the principles of the Payton and White line were not limited to Ohio cases by a unique aspect of Ohio law that forces us to treat ineffective assistance of counsel claims as part of the direct review process, see White, 201 F.3d at 752-53 (citing State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1208 (1992), which rules that ineffective assistance of counsel claims cannot be raised in state post-conviction proceedings), those cases make clear that upon the filing of an ineffective assistance claim in state court, the statute of limitations is not restarted, but merely tolled. See Bronaugh v. Ohio, 235 F.3d 280, 286 (6th Cir.2001); see also Isham v. Randle, 226 F.3d 691, 692-93, 694 (6th Cir.2000) (treating Ohio prisoner's state ineffective assistance of appellate counsel challenge as tolling, though not restarting, the statute of limitations), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001). The conviction is still considered final at the close of the initial direct appellate proceedings. If the rule were otherwise, such that a subsequent motion could constitute part of the direct appeal and thus restart the limitation period, the rule ...