Nichols v. Bowersox, Nos. 97-3639

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before BOWMAN; McMILLIAN; BEAM; MORRIS SHEPPARD ARNOLD
• Citation: 172 F.3d 1068,1999 WL 203482
• Parties: Michael NICHOLS, Appellant, v. Michael BOWERSOX; Jeremiah (Jay) Nixon, Attorney General of the State of Missouri, Appellees. Richard L. Crane, Appellant, v. Dave Dormire, Superintendent; Jeremiah (Jay) Nixon, Attorney General, State of MO, Appellees.
• Docket Number: Nos. 97-3639,97-3640
• Decision Date: 13 April 1999

Page 1068

172 F.3d 1068 Michael NICHOLS, Appellant,
v.
Michael BOWERSOX; Jeremiah (Jay) Nixon, Attorney General of
the State of Missouri, Appellees.
Richard L. Crane, Appellant,
v.
Dave Dormire, Superintendent; Jeremiah (Jay) Nixon,
Attorney General, State of MO, Appellees. Nos. 97-3639, 97-3640. United States Court of Appeals,
Eighth Circuit. Submitted Sept. 23, 1998.
Decided April 13, 1999.

Page 1069

Michael J. Elston, Kansas City, MO, argued, for Appellants.

Cassandra K. Dolgin, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, on the brief), for Appellees.

Before BOWMAN, Chief Judge, and McMILLIAN, RICHARD S. ARNOLD, FAGG, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY and KELLY, ¹ Circuit Judges, En Banc.

McMILLIAN, Circuit Judge.

In these consolidated cases, Michael Nichols and Richard L. Crane (together

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referred to as "petitioners") appeal from final judgments entered in the United States District Court for the Western District of Missouri dismissing their respective petitions for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254. Nichols v. Bowersox, No. 97-0666-CV-W-3-P (W.D.Mo. Aug. 20, 1997); Crane v. Dormire, No. 97-0673-CV-W-3-P (W.D.Mo. Aug. 20, 1997). For reversal, they argue that the district court erred in dismissing their petitions as untimely filed under the one-year period of limitation imposed by 28 U.S.C. § 2244(d), which was enacted as part of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). In an earlier proceeding, a divided panel of this court reversed the judgments of the district court and remanded each case to the district court for further proceedings. However, this court subsequently vacated the panel opinion and granted the suggestion for rehearing en banc filed by Michael Bowersox and Dave Dormire (together referred to as "respondents"). Upon consideration by the full court and for the reasons stated below, we reverse the judgments of the district court and remand for further proceedings consistent with this opinion.

Jurisdiction in the district court was based upon 28 U.S.C. §§ 1331, 2254. Jurisdiction in this court is based upon 28 U.S.C. §§ 1291, 2253(a).

Background

Nichols v. Bowersox

Petitioner Nichols is currently serving, among other sentences, a sentence of life imprisonment without the possibility of parole for first degree murder. He was convicted of first degree murder in the Circuit Court of Jackson County, Missouri, and his conviction was affirmed on appeal by the Missouri Court of Appeals on February 20, 1996. State v. Nichols, 915 S.W.2d 795 (Mo.Ct.App.1996) (per curiam). Nichols did not file a petition for a writ of certiorari in the United States Supreme Court. The mandate in his criminal case issued on April 11, 1996.

Nichols, acting pro se, filed his § 2254 petition for a writ of habeas corpus through the prison mail system. He signed the petition on April 21, 1997. It was "provisionally filed" by the district court clerk's office on April 28, 1997. On May 30, 1997, the district court dismissed Nichols' petition for failure to correct technical defects. On June 16, 1997, the district court reopened the case, denied Nichols leave to proceed in forma pauperis, and ordered him to pay the filing fee. Nichols paid the filing fee, which was received by the district court on July 15, 1997. In the meantime, respondent Bowersox moved to dismiss the petition as untimely filed under 28 U.S.C. § 2244(d). On August 19, 1997, the district court granted Bowersox's motion to dismiss. The district court issued a certificate of appealability on the question of "whether the prison mailbox rule announced in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), should now apply to the filing of habeas corpus petitions." ² Nichols appealed.

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Crane v. Dormire

Petitioner Crane was convicted on December 3, 1992, in the Circuit Court of Jasper County, Missouri, of second degree burglary and stealing and was sentenced to prison terms of twenty years and one year, respectively. The Missouri Court of Appeals affirmed his conviction on June 28, 1994. The mandate in his criminal case issued on July 14, 1994.

Crane, acting pro se, filed his § 2254 petition for a writ of habeas corpus through the prison mail system. He signed the petition on April 20, 1997. It was "provisionally filed" by the district court clerk's office on April 29, 1997. On June 30, 1997, the district court granted Crane leave to proceed in forma pauperis. On July 14, 1997, respondent Dormire moved to dismiss Crane's petition as untimely filed under 28 U.S.C. § 2244(d). The district court granted Dormire's motion to dismiss on August 19, 1997. The district court issued a certificate of appealability on the question of "whether the prison mailbox rule announced in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), should now apply to the filing of habeas corpus petitions." Crane appealed.

Discussion

Section 2244(d)

On April 24, 1996, a one-year period of limitation for filing habeas petitions went into effect as part of the AEDPA. 28 U.S.C. § 2244(d). The statute provides:

(1) 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. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of 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.

(2) The 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 shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). Prior to the 1996 enactment of the AEDPA, no statutory period of limitation was imposed for filing habeas petitions in federal court pursuant to § 2254. ³

Determination of triggering date under § 2244(d)(1)(A)

The one-year limitation period imposed by 28 U.S.C. § 2244(d)(1) begins to run on the latest of several possible triggering

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dates. For both Nichols and Crane, the relevant triggering date is that which is described in § 2244(d)(1)(A) as "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1133, 143 L.Ed.2d 126 (1999), § 2244(d)(1)(A) was interpreted by a panel of this court as follows:

the running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (i) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.

The Smith decision was filed one month after the present case was argued and submitted to the court en banc. Now, in light of Smith, we will consider the dates on which Nichols' and Crane's respective state court judgments became final within the meaning of § 2244(d)(1)(A). The record in this case indicates that neither Nichols nor Crane filed a petition for a writ of certiorari in the United States Supreme Court. See Respondents' Appendix at 1, 52. According to Smith, the dates on which the judgments became final within the meaning of § 2244(d)(1)(A) are therefore determined by "the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ [of certiorari]." Id. Thus, each petitioner's state court judgment became final under § 2244(d)(1)(A) upon the expiration of his time to file a petition for a writ of certiorari.

Rule 13 of the Supreme Court Rules provides in relevant part:

Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.

Based upon the information contained in the record, and taking into account Smith and Supreme Court Rule 13, we can say with certainty that Nichols' judgment became final within the meaning of § 2244(d)(1)(A) no earlier than May 20, 1996, exactly 90 days after his conviction was affirmed on direct appeal. Accordingly, Nichols had at least until midnight on May 19, 1997, in which to file his petition for a writ of habeas corpus under the terms of 28 U.S.C. § 2244(d)(1)(A). See Smith, 159 F.3d at 348 (Supreme Court's denial of plea for writ of certiorari on November 3, 1997, began running of statute of limitations, meaning petitioner had until midnight on November 2, 1998, to petition for habeas corpus relief in federal court). Crane, on the other hand, was convicted in state...