Nowaczyk v. Warden, New Hampshire State Prison

• Decision Date: 14 August 2002
• Docket Number: No. 98-1921.,No. 99-1379.,98-1921.,99-1379.
• Citation: 299 F.3d 69
• Parties: Steven J. NOWACZYK, Petitioner, Appellant, v. WARDEN, NEW HAMPSHIRE STATE PRISON, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

299 F.3d 69

Steven J. NOWACZYK, Petitioner, Appellant, v. WARDEN, NEW HAMPSHIRE STATE PRISON, Respondent, Appellee.

No. 98-1921.

No. 99-1379.

United States Court of Appeals, First Circuit.

Heard June 13, 2002.

Decided August 14, 2002.

William A. Hahn, with whom Hahn & Matkov was on brief, for appellant.

Nicholas Cort, Assistant Attorney General, with whom Philip T. McLaughlin, Attorney General, was on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and SCHWARZER,^* Senior District Judge.

LIPEZ, Circuit Judge.

This is the latest in a steady stream of cases involving the complex procedural requirements that govern habeas corpus petitions filed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. This case differs from the norm, however, because the petition before us does not suffer from any procedural flaw. It was filed within AEDPA's one-year statute of limitations, see id. § 2244(d)(1), and it contains only fully-exhausted claims, see id. § 2254(b) and (c). Nevertheless, the district court refused to address the merits of those claims and dismissed the petition without prejudice because the petitioner, Steven Nowaczyk, was in the process of adjudicating an additional claim — one he had not presented in his habeas petition — in state court. AEDPA's statute of limitations has now run its course, meaning that Nowaczyk will be barred from filing a new petition if he cannot proceed on the petition dismissed by the district court. Although we conclude that the district court was not required to adjudicate Nowaczyk's claims immediately, we hold that it abused its discretion in dismissing his petition rather than retaining jurisdiction and entering a stay pending the outcome of the state proceedings.

I.

In December, 1994, Nowaczyk was convicted in New Hampshire state court on charges of arson, conspiracy to commit arson, and witness tampering. The New Hampshire Supreme Court affirmed his conviction on direct appeal, entering its final judgment on January 24, 1997. Nowaczyk did not seek further review from the United States Supreme Court.

Under AEDPA, Nowaczyk had one year "from the date on which [his conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review" in which to pursue federal habeas relief under § 2254. 28 U.S.C. § 2244(d)(1)(A). The parties agree that the one-year limitations period began on April 24, 1997,¹ which marks the end of the 90-day period for filing a petition for writ of certiorari from the United States Supreme Court. See Donovan v. Maine, 276 F.3d 87, 91 (1st Cir.2002) ("[S]ection 2244(d)(1) provides for tolling during the ninety-day period in which the petitioner would have been allowed to ask the United States Supreme Court to grant certiorari to review the [state court's] denial of his direct appeal (the fact that the petitioner did not seek certiorari is immaterial).").

The statute of limitations is tolled whenever "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). We have held that an application for state post-conviction relief is "pending" — and, thus, the statute of limitations is tolled — not only when the application "actually is being considered by the trial or appellate court, but also during the `gap' between the trial court's initial disposition and the petitioner's timely filing of a petition for review at the next level." Currie v. Matesanz, 281 F.3d 261, 266 (1st Cir.2002) (internal quotation marks omitted); see also Carey v. Saffold, ___ U.S. ___, 122 S.Ct. 2134, 2136, 153 L.Ed.2d 260 (2002) (confirming the prevailing view that an application remains pending between "a lower state court's decision and the filing of a notice of appeal to a higher state court"). Such tolling enables state prisoners to comply with AEDPA's exhaustion provisions, 28 U.S.C. § 2254(b) and (c), which require them to give state courts a "full opportunity" to address constitutional claims before presenting those claims to a federal court, O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

Here, Nowaczyk filed his § 2254 petition in federal district court on June 20, 1997, roughly two months after the statute of limitations began to run. The petition stated four claims: (1) that there was insufficient evidence to support his conviction; (2) that the jury was permitted to consider prejudicial evidence; (3) that he received ineffective assistance of counsel at trial; and (4) that he was denied the right to a neutral judge both at trial and on appeal. Unlike the first three claims, Nowaczyk had not raised the issue of judicial bias on direct appeal from his state conviction. In AEDPA parlance, therefore, that claim was "unexhausted." Perhaps anticipating that problem, Nowaczyk filed an application for state post-conviction review on October 28, 1997, in which he presented his claim of judicial bias. He filed a second such application on May 10, 1998, raising a claim of double jeopardy that was not included in his § 2254 petition.

On July 22, 1998, the district court dismissed Nowaczyk's § 2254 petition without prejudice. The court noted that Nowaczyk's first application for state post-conviction review was then pending before the New Hampshire Supreme Court. It concluded, therefore, that Nowaczyk had failed to exhaust all available state remedies as to his claim of judicial bias, and dismissed the § 2254 petition on that ground.

Nowaczyk filed a notice of appeal from the district court's decision on July 24. Approximately one week later, on July 31, 1998, the New Hampshire Supreme Court entered its final decision rejecting Nowaczyk's judicial bias claim. Citing that decision, Nowaczyk asked the federal district court to reconsider its judgment. He argued that dismissal no longer was appropriate now that all of the claims presented in his § 2254 petition were fully exhausted. The district court denied the motion by margin order, reasoning that Nowaczyk's pending appeal before us rendered his motion for reconsideration "moot."

Nowaczyk then filed a motion in this court for summary reversal. We granted the motion, explaining that, "[e]ven though [Nowaczyk's] appeal had been noticed when the motion [for reconsideration] was filed, the motion was not entirely moot. The district court still had authority to review the motion and to notify this court if it was inclined to grant relief." Accordingly, we remanded to the district court so that it could address the merits of Nowaczyk's motion for reconsideration. We emphasized that the court should consider whether, given the time limitations imposed by AEDPA, dismissal still was appropriate in Nowaczyk's case.

On remand, the matter was referred to a magistrate judge, see 28 U.S.C. § 636(b)(1)(B), who recommended that Nowaczyk's motion for reconsideration be granted.² The magistrate judge reasoned that, since Nowaczyk's § 2254 petition was no longer "mixed," but presented only exhausted claims, it was not subject to dismissal. He rejected the state's argument that dismissal was warranted because Nowaczyk's second application for state post-conviction review (raising the double jeopardy claim) still was pending before the state courts. Although principles of comity and judicial economy mandate dismissal of any unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 518-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the magistrate judge found those principles inapplicable in Nowaczyk's case, "since the State courts have already had an opportunity to consider each of the issues raised in the federal petition." Because the claims presented in Nowaczyk's § 2254 petition were fully exhausted and properly before the district court, the magistrate judge concluded that dismissal would be "inconsistent with the imperative that underscores all habeas corpus proceedings: ensuring that federal constitutional claims may be reviewed promptly in a federal forum if State remedies have been exhausted." See Braden v. 30th Judicial Cir. Ct., 410 U.S. 484, 490, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (explaining that the exhaustion doctrine reflects "a careful balance between important interests of federalism and the need to preserve the writ of habeas corpus as a swift and imperative remedy in all cases of illegal restraint or confinement" (internal quotation marks omitted)).

The district court rejected the magistrate judge's recommendation and dismissed Nowaczyk's § 2254 petition without prejudice. The court agreed that Nowaczyk's petition presented only exhausted claims. However, it concluded that dismissal was appropriate because of the pendency of Nowaczyk's second application for state post-conviction review. That application contained a challenge to the same conviction Nowaczyk sought to overturn through the federal habeas proceedings, and "Nowaczyk did not raise any unusual circumstances about the state court actions, such as extraordinary delay, that would justify concurrent actions." In the district court's view, the principles of comity discussed in Rose counseled in favor of "defer[ring] to the state court action" in such a case.

The court then turned to the question of AEDPA's statute of limitations. It assumed, without deciding, that since Nowaczyk had not attempted to appeal his conviction to the United States Supreme Court, he was not entitled to the benefit of the 90-day period for seeking a writ of certiorari. Accordingly, the court concluded that the statute of limitations began to run on January 24, 1997 — the date of the New Hampshire Supreme Court's final decision in Nowaczyk's direct appeal.

The next question was the extent to which the statute of limitations was tolled by Nowaczyk's various filings. The district court determined that Nowaczyk's § 2254 petition — if dismissed without prejudice on...