Riddle v. Kemna

• Decision Date: 08 April 2008
• Docket Number: No. 06-2542.,06-2542.
• Citation: 523 F.3d 850
• Parties: Donald RIDDLE, Appellant, v. Mike KEMNA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

523 F.3d 850

Donald RIDDLE, Appellant, v. Mike KEMNA, Appellee.

No. 06-2542.

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2007.

Filed: April 8, 2008.

Eric C. Bohnet, Indianapolis, IN, argued, for appellant.

K. Lee Marshall, Kristi K. Wilhelmy, Kelly J. Hardy, St. Louis, MO, on the brief, for amicus curiae Missouri State Public Defender System, in support of appellant.

Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, MO, argued. Jeremiah W. (Jay) Nixon, Atty. Gen., on the brief, for appellee.

Before LOKEN, Chief Judge, and WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.

BENTON, Circuit Judge.

Donald D. Riddle filed a petition for habeas relief under 28 U.S.C. § 2254. The district court dismissed his petition as untimely by the one-year statute of limitations in 28 U.S.C. § 2244(d), enacted in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1217 ("AEDPA"). A panel of this court, by order, vacated the judgment of the district court and remanded. This court granted the State's motion for rehearing en banc, vacating the panel's order. Riddle argues that his petition was timely because he is entitled to a tolling of the statute of limitations equal to the 90-day period for filing for certiorari in the Supreme Court of the United States. Alternatively, he requests equitable tolling of the statute of limitations.

This court has jurisdiction under 28 U.S.C. §§ 1291 and 2253, and reviews de novo the district court's interpretation of the law. Walker v. Norris, 436 F.3d 1026, 1029 (8th Cir.2006). The court en banc now affirms in part, reverses in part, and remands.

I.

A jury convicted Riddle of first degree robbery, armed criminal action, and first degree tampering. He received a life sentence, a consecutive 35-year sentence, and a concurrent seven-year sentence. The Missouri Court of Appeals issued its decision affirming his conviction on January 23, 2001, and its mandate on February 15, 2001. State v. Riddle, 35 S.W.3d 897 (Mo. Ct.App.2001). Riddle did not file a motion for transfer to the Missouri Supreme Court, or a petition for writ of certiorari in the United States Supreme Court.

On May 4, 2001, Riddle filed a petition in state court for post-conviction relief. The Missouri Court of Appeals affirmed the denial of post-conviction relief on March 30, 2004. Riddle v. State, 129 S.W.3d 492 (Mo.Ct.App.2004) (per curiam). The mandate issued on April 21, 2004.

The district court dismissed Riddle's petition for habeas corpus relief as untimely. The court ruled that his direct appeal became final on February 15, 2001, the date the Missouri Court of Appeals issued its mandate. The district court found Riddle's original deadline for filing for federal habeas relief was February 15, 2002. See Moore v. United States, 173 F.3d 1131, 1133-35 (8th Cir.1999) (Fed.R.Civ.P. 6(a) applies to AEDPA statutes of limitations). The district court then correctly tolled the statute of limitations from May 4, 2001, until April 21, 2004, while the state post-conviction case was pending. See 28 U.S.C. § 2244(d)(2); Payne v. Kemna, 441 F.3d 570, 571-72 (8th Cir.2006) (Missouri post-conviction relief proceedings are pending under AEDPA until mandate issues); Lawrence v. Florida, ___ U.S. ___, 127 S.Ct. 1079, 1083, 166 L.Ed.2d 924 (2007) ("application for state postconviction review is therefore not `pending' after the state court's postconviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari").

The district court concluded that February 3, 2005, was the deadline for Riddle's federal petition. Riddle did not verify his petition for federal habeas corpus relief until March 22, 2005, so the district court considered it at least 47 days late.¹ The district court did not credit Riddle the 90 days for filing for certiorari in the United States Supreme Court, which, if allowed, would make his petition timely.

II.

Before 1996, there was no statute of limitations on requests for federal habeas relief. Clay v. United States, 537 U.S. 522, 528, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); see Rule 9(a) Governing Section 2254 Cases in the United States District Courts (effective 1977-2004) (discretionary dismissal was allowed if state was prejudiced by delay in filing habeas petition). For claims filed after April 24, 1996, there is a 1-year statute of limitations. Lindh v Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A state inmate may file for habeas relief in the federal courts within one year, as relevant here, after the later of the date when 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). This is a matter of federal law. Clay, 537 U.S. at 531, 123 S.Ct. 1072 ("finality for the purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule"). The Courts of Appeals have uniformly interpreted "direct review" in § 2244(d)(1)(A) to encompass review of a state conviction by the Supreme Court. See id. at 528 n. 3, 123 S.Ct. 1072.

In this case, Riddle did not ask the Missouri Supreme Court to review his direct appeal. He argues that "the expiration of time for seeking [direct] review" still includes the 90-day period for seeking certiorari, asserting the United States Supreme Court could have reviewed the Missouri Court of Appeals decision in his direct appeal.

Supreme Court Rule 13.1 allows 90 days for filing a writ of certiorari in the United States Supreme Court. The Supreme Court can review only judgments of a "state court of last resort," or of a lower state court if the "state court of last resort" has denied discretionary review. See Sup.Ct. R. 13.1. See also 28 U.S.C. 1257(a) ("the highest court of a State in which a decision could be had"). The issue is which Missouri court is the state court of last resort.

Identifying the state court of last resort requires an examination of the particular state court procedures. See Costarelli v. Massachusetts, 421 U.S. 193, 195-97, 198-99, 95 S.Ct. 1534, 44 L.Ed.2d 76 (1975); Pugh v. Smith, 465 F.3d 1295, 1299-1300 (11th Cir.2006). The Missouri Constitution says that the supreme court is "the highest court in the state," whose jurisdiction is "coextensive with the state." Mo. Const. art. V, § 2. The supreme court has "general superintending control over all courts and tribunals." Id. § 4.1. "Supervisory authority over all courts is vested in the supreme court". Id. It has the duty to make rules governing "practice, procedure and pleading for all courts and administrative tribunals," and the power to assign any judge to any court. Id. §§ 5, 6.

The Missouri Supreme Court also has constitutional power to set rules for "transfer" — how cases in the court of appeals are transferred to the supreme court. Id. § 10. The supreme court, by rule, requires that an application to transfer first be filed in the court of appeals, before it may later be filed in the supreme court (the Missouri Constitution does not have this requirement). Compare id. with Mo. Sup.Ct. R. 83.04. The supreme court has added grounds for transfer — which only it can exercise — that are not listed in the Constitution (conflict between appellate decisions, and "equalizing the workload of the appellate courts"), in addition to its exclusive constitutional power to transfer court-of-appeals cases pre-opinion. Mo. Const. art. V, § 10; Mo. Sup.Ct. R. 83.04, 83.01. The Missouri Constitution concludes in describing transfer: "The supreme court may finally determine all causes coming to it from the court of appeals, whether by certification, transfer or certiorari, the same as on original appeal." Mo. Const. art. V, § 10; Mo. Sup.Ct. R. 83.09.

Riddle asserts that the intermediate court of appeals is the court of last resort in Missouri because it "normally determines which cases will be heard by the state Supreme Court," and "transfer to the Missouri Supreme Court is largely controlled by the state's courts of appeals." These assertions are not true. According to its annual reports, the supreme court grants far more transfers than does the court of appeals. Compare Table 4 (FY2000-FY2007) with Table 8 (FY2003-FY2007), or Table 7 (FY2000-FY2002), in Mo. Cts. Ann. Rpt. Supps. available at http://www.courts.mo.gov/page.asp?id=296 (last visited Mar. 21, 2008).

Even more strained is Riddle's related assertion that "an appeal to a Missouri court of appeals is effectively an appeal to the state's highest court," because the court of appeals (or a dissenting judge) may sua sponte grant transfer. See Mo. Const. art. V, § 10; Mo. Sup.Ct. R. 83.02, 83.03. Transfers without a written application are the distinct minority. Compare Table 4 (FY2000-FY2007) with Table 8 (FY2003-FY2007), or Table 7 (FY2000-FY2002), in Mo. Cts. Ann. Rpt. Supps. supra. Even when the court of appeals (or a dissenting judge) sua sponte transfers a case, the supreme court may summarily "retransfer" the case back to the court of appeals.²

Riddle emphasizes the first sentence of Missouri Rule 83.04, which provides "for purposes of federal habeas corpus review" transfer by the supreme court is extraordinary and not part of the standard review process. See Mo. Sup.Ct. R. 83.04 (amended October 23, 2001). Rule 83.04 is a response to O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), which permits states to define "one complete round of the State's established appellate review process" by a "rule providing that a given procedure is not available." See Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir.2002); Dixon v. Dormire, 263 F.3d 774, 779-80 (8th Cir. 2001). Rule 83.04, however, does not control the issue in this case. Rule 83.04 permits Riddle to meet the exhaustion requirement in 28 U.S.C....