Mills v. Norris

• Decision Date: 20 April 1999
• Docket Number: PLAINTIFF-APPELLANT,No. 98-2872,DEFENDANT-APPELLEE,98-2872
• Citation: 187 F.3d 881
• Parties: (8th Cir. 1999) JON MILLS,, v. LARRY NORRIS, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 881

187 F.3d 881 (8th Cir. 1999)

JON MILLS, PLAINTIFF-APPELLANT, v. LARRY NORRIS, DEFENDANT-APPELLEE.

No. 98-2872

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 20, 1999

Filed: August 23, 1999

Appeal from the United States District Court for the Eastern District of Arkansas.

Before McMILLIAN, Loken, and Murphy, Circuit Judges.

Loken, Circuit Judge.

The Anti-terrorism and Effective Death Penalty Act (" AEDPA") provides, with some important exceptions, that state prisoners must file a federal petition for habeas corpus within one year of the date their convictions become final. See 28 U.S.C. 2244(d)(1). Jon Mills is an Arkansas inmate serving a life sentence for rape and first degree sexual abuse. He appeals the district court's dismissal of his federal habeas petition as time-barred. The appeal requires us to determine the proper interplay between Arkansas appellate law and procedure and the provisions of AEDPA. We conclude that the one-year limitations period was tolled while Mills attempted to appeal from the denial of state post-conviction relief, even though he ultimately failed to perfect the appeal. Therefore, we reverse.

Following his conviction, Mills filed a pro se petition for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. The Arkansas trial court denied the petition on August 15, 1996. Four days later, Mills timely filed a notice of appeal to the Supreme Court of Arkansas. Rule 5(a) of the Arkansas Civil Rules of Appellate Procedure (which applies to criminal appeals as well) provides that the record on appeal "shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the trial court." Mills never filed that record. There was no court order dismissing the appeal.

Mills filed this pro se petition for federal habeas relief on October 9, 1997. Because his judgment of conviction became final prior to AEDPA's enactment, the one-year limitations period began on April 24, 1996. See Nichols v. Bowersox, 172 F.3d 1068, 1073 (8th Cir. 1999) (en banc). Thus, unless that period was tolled, Mills's 2254 petition is time-barred. In computing AEDPA's one-year limitations period, the statute provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review... is pending shall not be counted." 28 U.S.C. 2244(d)(2). Mills's Rule 37 petition was pending on April 24, 1996, when his one-year period began, so the period of limitation was tolled -- in the words of 2244(d)(2), the time "shall not be counted" -- for as long as that petition was "pending." The state trial court denied Mills post-conviction relief on August 15, 1996. If the period of tolling ended that day, Mills's 2254 petition is still time-barred. The issue before us concerns the effect of the notice of appeal to the Supreme Court of Arkansas that Mills filed on August 19, 1996. In the district court's view, "there was no appeal" because Mills took no further action after filing his notice of appeal; therefore, the court concluded, "the Rule 37 petition was pending until August 15, 1996, when the trial court denied the petition." We granted a certificate of appealability to consider this issue.¹

The tolling period under 2244(d)(2) includes time spent on an unsuccessful appeal of the denial of state post-conviction relief. See Barnett v. Lemaster, 167 F.3d 1321 (10th Cir. 1999).² Mills argues his failure to file the record did not affect the validity of his appeal for tolling purposes; therefore, the one-year limitation period was tolled until November 17, 1996, the end of the ninety days he was allowed under Civil Appellate Rule 5(a) to perfect the appeal by filing the record on appeal with the Supreme Court of Arkansas. The State argues that Mills's appeal was not "pending" because he failed to timely file the record on appeal as required by Arkansas Civil Appellate Rule 5(a).³

The State's contention finds some support in the Arkansas Supreme Court's description of the appeal in Mitchell v. City of Mountain View, 803 S.W. 2d 556, 557 (Ark. 1991), where the record was never filed in the Supreme Court, and the appellee filed a motion to dismiss the appeal:

"This [motion] procedure is unusual in that no appeal is pending in this court and were [appellants] to attempt to perfect an appeal the record would be refused by the Clerk as untimely. However, since the trial court has no power to dismiss an appeal... if the time for appeal has expired and the prevailing party prefers to formalize that fact... such party may file with the Clerk a partial record and move for a dismissal."

Although the Court in Mitchell referred to the appeal as not "pending" on its docket, the Court's willingness to rule on the motion to dismiss suggests that a valid appeal was in fact commenced. That inference is confirmed by Rule 2(e) of the Arkansas Criminal Rules of Appellate Procedure, which provides in relevant part:

"Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which... the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of... entry of the order denying post-conviction relief from which the appeal is taken."

Consistent with the plain language of Criminal Appellate Rule 2(e), the Supreme Court of Arkansas enabled potentially abandoned appeals to proceed by granting motions for leave to file untimely records in Sanders v. State, 952 S.W. 2d 133 (Ark. 1997), and in Slaughter v. State, 992 S.W. 2d 802 (Ark. 1999). See generally Novak v. J.B. Hunt Transport, 892 S.W. 2d 526 (Ark. App. 1995) (en banc).

The issue before us does not turn on whether Mills's appeal was "pending" under Arkansas law, but instead on whether it was "pending" for purposes of 28 U.S.C. 2244(d)(2). This is an issue of federal law. There is a long-standing federal policy that habeas petitioners must exhaust their state court remedies. See O'Sullivan v. Boerckel, 119 S. Ct. 1728, 1731-32 (1999). Congress recodified and broadly stated the exhaustion requirement in AEDPA, providing that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. 2254(c)....