Orange v. Calbone, No. 01-7115.

• Decision Date: 04 February 2003
• Docket Number: No. 01-7115.
• Parties: Billy Jack ORANGE, Petitioner-Appellant, v. Sam CALBONE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

318 F.3d 1167

Billy Jack ORANGE, Petitioner-Appellant, v. Sam CALBONE, Warden, Respondent-Appellee.

No. 01-7115.

United States Court of Appeals, Tenth Circuit.

February 4, 2003.

Stephen J. Cribari and Charles W. Chotvacs, University of Denver College of Law, Denver, CO, for Petitioner-Appellant.

Kellye Bates, Assistant Attorney General, (W.A. Drew Edmondson, Attorney General, with her on the briefs), Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, PORFILIO, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Billy Jack Orange, an Oklahoma state prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition on statute of limitations grounds. Because we conclude that the "appeal out of time" granted to petitioner by the Oklahoma Court of Criminal Appeals constitutes "direct review" for purposes of 28 U.S.C. § 2244(d)(1)(A), we in turn conclude that his federal habeas petition was timely filed. We reverse the judgment of the district court and remand for further proceedings.

I.

Petitioner was convicted by a jury in the District Court of Marshall County, Oklahoma, of possession of a controlled dangerous substance after two or more former convictions and possession of paraphernalia, and was formally sentenced for those convictions on September 10, 1997. Within a day or two of his sentencing, petitioner agreed to assist law enforcement authorities in a corruption investigation of the Marshall County Sheriff. As a result, he was removed from the Marshall County Jail less than five days after his sentencing. Petitioner's trial counsel was not informed of petitioner's whereabouts, and there is no indication that petitioner was allowed to make contact with his counsel. Accordingly, although it is uncontroverted that petitioner intended to appeal his convictions (petitioner's trial counsel stated this intent at the time of sentencing), a timely appeal was not filed on his behalf.

On April 2, 1999, petitioner, appearing pro se, filed an application for post-conviction relief in Marshall County District Court seeking an appeal out of time. On April 8, 1999, the court granted petitioner's application and recommended that he be granted an appeal out of time with respect to his 1997 convictions.¹ On November 12, 1999, the Oklahoma Court of Criminal Appeals (OCCA) granted petitioner an appeal out of time in Case No. PC-99-1402. On August 11, 2000, the OCCA affirmed petitioner's 1997 convictions and sentences.

On November 9, 2000, petitioner, again proceeding pro se, filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. Respondent moved to dismiss the petition on the ground that it was filed outside the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A). In its motion, respondent argued that petitioner's conviction became final on September 20, 1997, when the ten-day period for filing a notice of appeal from his convictions expired. Thus, respondent argued, the one-year period of limitations for filing a federal habeas corpus petition expired on September 20, 1998. Petitioner responded by outlining the facts of his removal from the Marshall County Jail and explaining why he was unable to file a timely appeal.

On July 27, 2001, the district court granted the motion to dismiss. The district court agreed with respondent that petitioner's conviction became final for purposes of § 2244(d)(1)(A) on September 20, 1997, when petitioner failed to timely perfect a direct appeal from his convictions and sentences. The district court further concluded that the circumstances outlined by petitioner did not warrant equitable tolling of the one-year statute of limitations. Although the district court denied petitioner a certificate of appealability (COA), this court granted a COA, appointed counsel, and directed counsel to address the question of whether petitioner's appeal out of time constituted "direct review" for purposes of § 2244(d)(1)(A).

II.

The narrow issue on appeal is whether petitioner's appeal out of time, which was granted by the OCCA, constitutes "direct review" for purposes of 28 U.S.C. § 2244(d)(1)(A). We review the issue de novo. See Williams v. Bruton, 299 F.3d 981, 982 (8th Cir.2002) ("We review the district court's interpretation of the one-year AEDPA limitation provision de novo."); Ford v. Moore, 296 F.3d 1035 1037 (11th Cir.2002) (reviewing de novo district court's legal conclusion that federal habeas petition was untimely under § 2244(d)(1)); Lloyd v. VanNatta, 296 F.3d 630, 632 (7th Cir.2002) (same); Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir.2002) ("An order dismissing a habeas application as time-barred by AEDPA is subject to de novo review."); see generally United States v. Fillman, 162 F.3d 1055, 1056 (10th Cir.1998) ("We review de novo the district court's interpretation of a federal statute.").

Before addressing the merits of the issue, we consider respondent's assertion that petitioner failed to properly raise the issue in the district court. It is true that petitioner, who was appearing pro se in the district court, did not specifically argue that his appeal out of time should be treated as part of the "direct review" process for purposes of § 2244(d)(1)(A). Petitioner did, however, indicate in his federal habeas petition that he filed a direct appeal from the judgment of conviction and exhausted his state remedies during the course of that direct appeal. ROA, Doc. 2, §§ 11-12, 16(A)(3)(a), 16(B)(3)(a), 16(C)(3)(a). When respondent moved to dismiss petitioner's federal habeas petition on the grounds that it was untimely under § 2244(d)(1)(A), both respondent and petitioner outlined in detail the course of petitioner's state court proceedings, including the appeal out of time proceedings granted by the OCCA. In fact, petitioner argued in his pro se response to the motion to dismiss that his federal habeas petition should not be deemed time-barred due to the unusual circumstances that gave rise to his appeal out of time proceedings in state court. As a result, all of the pertinent facts were squarely before the district court at the time it analyzed respondent's motion to dismiss and applied § 2244(d)(1)(A), and we believe it is fair to say that, by granting respondent's motion to dismiss, the district court implicitly concluded that petitioner's appeal out of time proceedings were not part of the "direct review" process under § 2244(d)(1)(A). We conclude that the issue was properly before the district court and, in turn, is properly before this court. See generally Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (noting that "the allegations of [a] pro se complaint" are held to "less stringent standards than formal pleadings drafted by lawyers").

Section 2244(d)(1)(A) provides:

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.

28 U.S.C. § 2244(d)(1)(A). In determining whether a particular state procedure constitutes part of the "direct review" process for purposes of § 2244(d)(1)(A), a federal court must defer to underlying state court characterization of the procedure. See Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir.2002) (deferring to Georgia state court determination of whether particular filing was part of direct appeal process under Georgia law); White v. Schotten, 201 F.3d 743, 752-53 (6th Cir.2000) (reaching same conclusion in case filed by Ohio state prisoner). This principle is consistent with "AEDPA's goal of promoting `comity ... and federalism.'" Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 364, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

Here, it is clear that the "appeal out of time" procedure afforded to petitioner was considered part of the direct appeal process under Oklahoma law. "Practice in the [OCCA] is governed by the Rules of the Court of Criminal Appeals, and guidance in applying those Rules is found in cases decided by the [OCCA]." Banks v. State, 953 P.2d 344, 345 (Okla.Crim.App.1998). Rule 2.1(E) authorizes a procedure described as an "appeal out of time." Okla. Stat. Ann., tit. 22, Ch. 18, App., Rule 2.1(E). The procedure, which can be pursued both "in a direct appeal" and "in an appeal under [Oklahoma's] Post-conviction Procedure Act," id. Rule 2.1(E)(2), is available only to those criminal defendants who can prove they were "denied an appeal through no fault of [their] own." Id. Rule 2.1(E)(1). If, as here, the procedure is pursued "in a direct appeal" and granted by the OCCA, the criminal defendant is essentially placed in the same procedural posture as if he had timely pursued a direct appeal from his convictions and sentences.² More specifically, he is granted a new ten-day period for filing a notice of intent to appeal and designation of record, and is directed to conform to the OCCA's applicable rules for initiating and perfecting a direct appeal. Id. Rule 2.1(E)(2); e.g., Young v. State, 902 P.2d 1089, 1091 (Okla.Crim.App. 1995). Further, the defendant in such a proceeding is thereafter characterized by the OCCA as the "appellant," a term typically utilized by the OCCA only in direct appeals (as opposed to the term "petitioner" utilized by the OCCA in applications for post-conviction relief). See ROA, Doc. 2, Exh. A (summary opinion of OCCA); e.g., Watkins v. State, 829 P.2d 42, 43 (Okla.Crim.App.1991); C.D.H. v. State, 760 P.2d 843, 844 (Okla.Crim.App.1988). The OCCA reviews the issues raised in such a proceeding on the merits without the typical res judicata/procedural bar analysis normally employed in a case involving post-conviction review. Finally, the OCCA...