Miller v. Collins

• Decision Date: 26 September 2002
• Docket Number: No. 00-3656.,00-3656.
• Citation: 305 F.3d 491
• Parties: Ralph MILLER, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 491

305 F.3d 491

Ralph MILLER, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.

No. 00-3656.

United States Court of Appeals, Sixth Circuit.

Submitted: June 14, 2002.

Decided and Filed: September 26, 2002.

Ralph Miller (briefed), London, OH, pro se.

Stephanie L. Watson (briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Respondent-Appellee.

Before: MARTIN, Chief Circuit Judge; KEITH and KENNEDY, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Chief Circuit Judge.

Ralph Miller, pro se, appeals the district court's dismissal of his habeas corpus petition as not timely filed within the evolving meaning of section 2244 of the Antiterrorism and Effective Death Penalty Act. We REVERSE and REMAND for further proceedings consistent with this opinion.

I.

The facts at issue in Miller's appeal involve a complex procedural history with at least fifteen motions and/or appeals before the Ohio Court of Appeals and the Ohio Supreme Court. The general time period starts with Miller's conviction on September 15, 1995, and ends with the filing of his habeas petition in the fall of 1998. In order to determine whether Miller's petition was timely filed under section 2244's one-year statute of limitations, we must assess Miller's actions during this time period.

On September 9, 1995, after a Hamilton County jury found Miller guilty of one count of robbery and one count of grand theft, a Hamilton County Court of Common Pleas judge sentenced Miller to eleven to fifteen years. Miller appealed his conviction to the Ohio Court of Appeals on January 16, 1996, claiming insufficiency of the evidence on the robbery count. On May 17, 1996, the Ohio Court of Appeals affirmed the trial court's decision. Miller did not appeal this decision to the Ohio Supreme Court.

On July 10, 1996, Miller sought leave to file a delayed appeal in the Ohio Supreme Court. The court permitted his delayed appeal and Miller again argued insufficiency of the evidence. On January 15, 1997, the Ohio Supreme Court dismissed Miller's delayed appeal as "not involving any substantial constitutional question."

Shortly after seeking leave to file a delayed appeal, Miller also sought to reopen his appeal in the Ohio Court of Appeals on ineffective assistance of appellate counsel grounds pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure.¹ Miller filed his application on August 13, 1996, and in an order dated November 26, 1996, the Ohio Court of Appeals ruled that Miller's claim was barred by res judicata because he could have argued ineffective assistance of appellate counsel in his delayed appeal to the Ohio Supreme Court. The court also concluded that Miller did not establish a colorable claim of ineffective assistance of counsel. Miller alleges that he did not receive a copy of this order until May of the following year.

Believing that the Ohio Court of Appeals had not ruled on his Rule 26(B) application, Miller next filed a "Motion to Proceed to Judgment" in the Ohio Court of Appeals on May 7, 1997. A week later, Miller received a letter from the Ohio Court of Appeals notifying him of their decision regarding his Rule 26(B) application. On June 2, 1997, Miller then filed a "Motion for Relief from Judgment." The Ohio Court of Appeals denied that motion on June 30, 1997. Miller then timely appealed that decision to the Ohio Supreme Court, which dismissed the appeal on October 29, 1997.

On November 19, 1997, Miller filed an "Application for Delayed Reconsideration in Instanter Pursuant to App. R. 26 and App. R. 14(B)" in the Ohio Court of Appeals. The Court of Appeals construed the motion as a second Rule 26(B) application to reopen his appeal and rejected it because it "contain[ed] the same arguments which he raised and which this court did address in his previous application for reopening." Miller's subsequent appeal to the Ohio Supreme Court was denied on August 26, 1998.

Miller swore under penalty of perjury that he presented his habeas corpus petition to prison officials on September 22, 1998. His petition, which was filed by prison officials on November 30, 1998, presented two grounds for relief: (1) ineffective assistance of counsel; (2) insufficiency of the evidence on his robbery conviction.

On November 16, 1999, the district court initially dismissed Miller's petition with prejudice, declined to issue a certificate of appealability and certified that any appeal would not be taken in good faith. Thereafter, the district court amended its decision and issued a certificate of appealability as to whether Miller's petition was time-barred. On appeal, this court remanded Miller's petition to the district court for reconsideration in light of Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.E.2d 542 (2000). On remand, the district court stood by its amended opinion, and on October 23, 2001, a Rule 34 panel declared this case unfit for Rule 34 disposition.

II.

In reviewing a habeas petition, we review a district court's legal conclusions de novo and its factual findings for clear error. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999).

A.

A conviction becomes final for purposes of the one-year Antiterrorism and Effective Death Penalty Act statute of limitations upon "conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The State of Ohio argues that Miller's conviction became final on July 1, 1996, forty-five days following the Ohio Court of Appeals' May 17, 1996 decision on direct appeal affirming Miller's conviction. With respect to Miller's filings after this date, the State of Ohio acknowledges that Miller's delayed appeal was a properly filed collateral attack within the meaning of section 2244(d)(2) and therefore tolled the one-year statute of limitations while it was pending. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.2001). The State correctly observes that Miller's delayed appeal did not toll the statute of limitations for the ninety day period he could have sought review in the Supreme Court. Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000) ("Section 2244(d)(2) does not toll the limitations period to take into account the time in which a defendant could have potentially filed a petition for certiorari with the United States Supreme Court following a state court's denial of post-conviction relief.").

As to Miller's Rule 26(B) application, the State of Ohio also argues that it tolled the one-year statute of limitations while it was pending, but because it overlapped with the tolling from Miller's delayed appeal in the Ohio Supreme Court, it did not have any practical tolling effect. This argument potentially skips a step in the analysis. In Bronaugh v. State of Ohio, 235 F.3d 280, 286 (6th Cir.2000), we ruled that there was no need to assess whether an untimely Rule 26(B) application was "properly filed" within the meaning of section 2244(d)(2) because a Rule 26(B) application was a step in Ohio's direct review process. In reaching this conclusion, we nonetheless emphasized that the petitioner "could not benefit from his delay in bringing a Rule 26(B) application to reopen direct appeal by requesting that § 2244(d)(1)(A) not begin until after his Rule 26(B) application has run its course through the courts." Id. at 286. Rather, "the statute of limitations is tolled only for that period of time in which the Rule 26(B) application is actually pending in the Ohio courts." Id.

In our view, there are two ways to read Bronaugh. The first, which is the State of Ohio's position in this case, is that a Rule 26(B) application is technically part of the direct review process, but in effect, it functions as a collateral attack because it only tolls the statute of limitations during pendency, it does not affect the conclusion of direct review and thus does not postpone the initial running of the one-year limitations period. The other possible interpretation is that because a Rule 26(B) application is part of the direct review process, a conviction does not become final pursuant to section 2244(d)(1)(A) until the Ohio courts dispose of a petitioner's Rule 26(B) application. Thus, a timely application does not merely toll the statute of limitations, the limitations period does not begin to run until its conclusion. Therefore, although the State of Ohio argues that Miller's apparently timely Rule 26(B) application only tolls the statute of limitations,² there is an argument that Miller's direct appeal did not conclude, and the one-year statute of limitations did not begin to run, until the Ohio courts disposed of his Rule 26(B) application.³

We need not resolve this question in the present case, however, because it does not affect our resolution of whether Miller's habeas petition was timely. We therefore assume for purposes of this appeal that the State of Ohio is correct, and that even a timely Rule 26(B) application only tolls the one-year statute of limitations. We proceed, then, under the assumption that Miller's conviction became final on July 1, 1996, and that by January 15, 1997, the date the Ohio Supreme Court denied his delayed appeal, Miller had used eight days⁴ of the one-year limitations period.⁵

B.

Where the facts are not in dispute, we review a district court's decision declining to apply equitable tolling de novo. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir.2001). In the present case, the State of Ohio does not contest Miller's factual account.

Miller contends he should receive the benefit of equitable tolling for the period from November 26, 1996 until May 14, 1997, the period during which he did not have notice of the Ohio Court of Appeals' denial of his Rule 26(B) application. In response, the State of Ohio argues that Miller is not entitled to equitable tolling because he has not carried his burden under Dunlap v. United States. In Dunlap, which was decided subsequent to...