Palmer v. Carlton, PETITIONER-APPELLANT

• Decision Date: 13 September 2001
• Docket Number: No. 99-5952,RESPONDENT-APPELLEE,PETITIONER-APPELLANT,99-5952
• Citation: 276 F.3d 777
• Parties: (6th Cir. 2002) DAVID PALMER,, v. HOWARD CARLTON, WARDEN, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 777

276 F.3d 777 (6th Cir. 2002)

DAVID PALMER, PETITIONER-APPELLANT, v. HOWARD CARLTON, WARDEN, RESPONDENT-APPELLEE.

No. 99-5952

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 13, 2001

Decided and Filed January 4, 2002

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 99-00267--James H. Jarvis, District Judge.

David B. Hill (argued and briefed), Newport, Tennessee, David Palmer, Mourtain City, TN, for Appellant.

Elizabeth B. Marney (argued and briefed), Office OF The Attorney General, Criminal Justice Division, Paul G. Summer, Attorney General, Office, Civil Litigation & State Services Division, Nashville, Tennessee, for Appellee.

Before: Daughtrey, Gilman, and Gibson, Circuit Judges.^*

OPINION

Daughtrey, Circuit Judge.

The petitioner, Tennessee state prisoner David Palmer, appeals the district court's sua sponte dismissal of his petition for a writ of habeas corpus. The court held that the petition was time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1), because Palmer's state post-conviction action was not "properly filed" so as to toll AEDPA's limitations period. However, our review indicates that an intervening United States Supreme Court case, Artuz v. Bennett, 531 U.S. 4 (2000), has rendered the district court's rationale erroneous. Nevertheless, the State has proposed an alternative ground upon which the dismissal of Palmer's case may be affirmed, and we have determined that the district court's denial of relief should be upheld on that basis. But, in doing so, we note the recent opinion of a sister circuit, Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), that might have provided Palmer with a basis for federal relief, had the factual circumstances been slightly different in his case.

The district judge who dismissed Palmer's petition ruled that it was untimely pursuant to the one-year grace period established to accommodate those petitioners whose state convictions became final prior to April 24, 1996, AEDPA's effective date. See Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000), cert. denied, 531 U.S. 1201, 121 S. Ct. 1211 (2001). The district judge also determined that the petitioner's state post-conviction petition was not "properly filed" pursuant to the AEDPA provision that tolls the one-year limitations period for the "time during which a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2). Hence, the court held, the one-year grace period to which § 2244(d)(2) applies was not tolled. The petitioner now appeals that determination.

Palmer was convicted of aggravated rape in state court in 1987 and was sentenced to 40 years imprisonment. He filed his first petition for post-conviction relief in 1990. This litigation was unsuccessful, and he filed a second petition in July 1995. That petition was dismissed by the state trial court in February 1996, and the Tennessee Court of Criminal Appeals affirmed the dismissal on July 25, 1997. On December 8, 1997, the Tennessee Supreme Court denied Palmer's application for permission to appeal, and one year later to the day, on December 8, 1998, Palmer filed his habeas petition in federal court.

On March 2, 1999, the federal district court granted Palmer's motion for voluntary dismissal, without prejudice, in order to permit the exhaustion of state remedies. On May 24, 1999, Palmer refiled his habeas petition in federal district court, but it was dismissed two weeks later, with prejudice, on the ground that it was untimely. The district court held that AEDPA applied and that the Act's one-year limitations period had not been tolled by the second state post-conviction petition because the state petition was not "properly filed" under AEDPA. This ruling was based on the state court decision that Palmer's second post-conviction petition was barred because its underlying claims had been previously determined or waived when not raised in his first post-conviction petition.

That interpretation of the Act has since proved to be incorrect. In Artuz v. Bennett, the Court clarified the meaning of the phrase "properly filed" as it is used in the tolling provision of 28 U.S.C. § 2244(d)(2), as follows:

"[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . But in common usage, the question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar."

Bennett, 531 U.S. at 8-9 (citations and footnote omitted) (emphasis in original). Thus, the district court erred in concluding that Palmer's second post-conviction petition was not "properly filed," and the State concedes as much in its brief to the court.

The State urges, however, that dismissal of Palmer's habeas petition may still rest upon the failure to refile it within the prescribed limitations period. As indicated above, the second post-conviction petition tolled the period until December 8, 1997, the date on which the leave to appeal the petition was denied by the Tennessee Supreme Court. Palmer waited until December 8, 1998, the entire one-year period to file his federal habeas petition. Although the habeas petition was initially timely, the period expired on the day that it was filed. When that petition was dismissed without prejudice on March 2, 1999, to allow exhaustion of a ground for relief in state court, the refiling on May 24, 1999, was untimely. See Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 2129 (2001) (federal habeas petition is not an application for "State post-conviction or other collateral review" within the meaning of § 2244(d)(2) and thus does not toll the period of limitations) (emphasis added). As a result, Palmer could not validly refile his habeas petition because the limitations period under AEDPA had run out on the date of his initial filing.

Palmer attempts to circumvent this procedural obstacle by arguing that a "petition for declaratory order" that he filed in state court in August 1997 was not finally dismissed until March 22, 1999, and that it should also be considered to be a post-conviction petition that tolled the limitations period. But even if this filing could qualify as a post-conviction petition under state law, it is clear from the state appeals court's decision that this pleading did not present a federal question for review. Because "a state petition for post-conviction or other collateral review must present a federally cognizable claim for it to toll the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2)," Palmer's argument fails as a matter of law. Austin v. Mitchell, 200 F.3d 391, 394 (6th Cir. 1999), cert. denied, 530 U.S. 1210 (2000).

In addition, Palmer asserts that his second state post-conviction petition did not become final until the expiration of the 90-day window that he had in which to petition the United State Supreme Court for a writ of certiorari. We have held, however, that "§ 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." Isham, 226 F.3d at 695.

Hence, for reasons other than those announced by the district court, the judgment denying Palmer relief in this case must be affirmed. In so holding, however, we take note of the analysis put forward in Duncan, supra, in which Justice Stevens, in a concurring opinion joined by Justice Souter, remarked that "Congress . . . overlooked the class of petitioners whose timely filed habeas petitions remain pending in district court past the limitations period, only to be dismissed after the court belatedly realizes that one or more claims have not...