Robertson v. Com., 2003-SC-0948-DG.

• Decision Date: 23 November 2005
• Docket Number: No. 2003-SC-0948-DG.,2003-SC-0948-DG.
• Citation: 177 S.W.3d 789
• Parties: Louis ROBERTSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

177 S.W.3d 789

Louis ROBERTSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-SC-0948-DG.

Supreme Court of Kentucky.

November 23, 2005.

Christopher N. Lasch, Goodwin & Lasch, PSC, Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Todd D. Ferguson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

In 1997, Appellant, Louis Robertson, was convicted by a Nelson Circuit Court jury of five counts of sodomy in the first degree and five counts of sexual abuse in the first degree and sentenced to 100 years in prison. We affirmed his convictions and sentences by an opinion rendered on February 11, 1999.

Appellant claims that on February 5, 2002, while incarcerated in the Eastern Kentucky Correctional Complex (EKCC), he delivered a properly prepared and addressed pro se RCr 11.42 motion to vacate, set aside or correct his sentence, along with other related motions, to the EKCC legal mail clerk for mailing. In support of this claim, he has filed a copy of what purports to be the EKCC "Legal Mail Log Record" for that date, which reflects two items of mail received from Appellant, one addressed to the Commonwealth's Attorney for the Tenth Judicial Circuit (which includes the Nelson Circuit Court) and the other addressed to the Nelson Circuit Court clerk. However, the RCr 11.42 motion was not "filed" in the office of the Nelson Circuit Court clerk until February 25, 2002, twenty days after Appellant claims to have delivered it to the prison legal mail clerk and fourteen days after the expiration of the three-year period of limitation for filing such a motion. RCr 11.42(10). The Nelson Circuit Court dismissed the motion as untimely filed, and the Court of Appeals affirmed. We now reverse and remand to the Nelson Circuit Court for an evidentiary hearing to determine whether the three-year period of limitation was equitably tolled in this case.

Criminal Rule (RCr) 11.42(10) provides:

Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:

(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or

(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

(Emphasis added.)

Both the Nelson Circuit Court and the Court of Appeals correctly concluded that the "shall be filed" requirement was mandatory and that neither had authority to sua sponte adopt a so-called "prison mailbox rule." In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court adopted such a rule for the filing of a notice of appeal by a pro se prisoner. In that case, the prisoner had deposited a notice of appeal with prison authorities for mailing to the court on the twenty-seventh day after entry of judgment denying his petition for a writ of habeas corpus; but the clerk did not receive and file the notice until the thirty-first day, one day after the period of limitation had expired. Fed. R.App. P. 4(a)(1). The Court held that the notice of appeal was "filed" when the prisoner deposited it with prison authorities for mailing. Houston, 487 U.S. at 270-71, 108 S.Ct. at 2382 (noting that "[s]uch prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline"). Appellant urges us to adopt the Houston "prison mailbox rule" for the filing of pleadings by pro se prisoners in Kentucky courts.

Appellant's request is not meritless in this case, especially since RCr 11.42(10) does not specify how or where the motion "shall be filed" (though RCr 11.42(1) provides that a prisoner may "proceed directly by motion in the court that imposed the sentence"). Other rules, however, do specify where pleadings must be filed, e.g., CR 73.01(2) ("appeals shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken"). We are reluctant to carte blanche amend our rules without following the formal procedures established for such amendments. CR 87. Furthermore, a blanket adoption of a "prison mailbox rule" could be construed as an attempt to also amend, sua sponte, statutes of limitation adopted by the General Assembly. See, e.g., KRS 13B.140(1) ("A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency's enabling statutes, within thirty (30) days...."); KRS 24A.120(2) ("Such adversary proceeding shall be filed in Circuit Court...."); KRS 61.120(2) ("Provided, however, that the notice of appeal and order appealed from shall be filed with the clerk of the Court of Appeals within thirty (30) days...."); KRS 351.194(8) ("An appeal of an order of the commission shall be filed in the Franklin Circuit Court within thirty (30) days...."); KRS 419.130(1) ("Any party to a hearing on a writ [of habeas corpus] may appeal to the Court of Appeals by filing with the clerk of the court, within thirty (30) days....").

Perceiving the possibility of unforeseen mischief fostered by otherwise good intentions, we decline to adopt the fiction that "filing" means delivery to prison authorities. As suggested by the dissenters in Houston, we might next be called upon to determine whether a person living abroad can "file" a necessary pleading by delivering it to a United States consul, or whether a soldier in a war zone can do so by delivering it to his or her commanding officer. Houston, 487 U.S. at 277, 108 S.Ct. at 2385 (Scalia, J., dissenting).

For similar reasons, the Supreme Court of Wisconsin declined to adopt a "prison mailbox rule." State ex rel. Nichols v. Litscher, 247 Wis.2d 1013, 635 N.W.2d 292, 295 (2001) ("We decline to interpret the term `file' in § 808.10 and § 809.62(1) to mean `deposit in a prison mailbox.'"). However, like the majority in Houston, that court recognized that pro se prisoners are without options when it comes to "filing" petitions.

When pro se prisoners seek to file petitions, their control over the filing process is circumscribed by prison rules and procedures. Pro se prisoners' choice in method of filing is no choice at all. They must rely on the "vagaries of the mail." Other petitioners may personally deliver their petitions to the clerk of court's office, even at the last possible moment. We discern no convincing reason why pro se prisoners who act more promptly and otherwise comply with filing requirements should be placed at a disadvantage.

Id. at 299. Nichols held that if the pro se petitioner has otherwise complied with all of the requisites for filing a petition, the deadline for such filing is tolled on the date the prisoner delivers the correctly addressed petition to the proper prison authorities for mailing. Id. at 298-99.

The Nichols remedy is similar to the equitable tolling remedy fashioned by most federal circuit courts of appeal to grant relief to deserving pro se prisoners from the one-year period of limitation imposed by 28 U.S.C. § 2255¹ for filing a petition for a writ of habeas corpus. Similar to RCr 11.42(10), that section provides in pertinent part:

A 1-year period of limitation shall apply to a motion under this section.

The limitation period shall run from the latest of —

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by government action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, ... and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255.

In Dunlap v. United States, 250 F.3d 1001 (6th Cir.2001), the United States Court of Appeals for the Sixth Circuit adopted for equitable tolling purposes in habeas cases the same five-factor test it had approved for employment discrimination cases in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988):(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim. Dunlap, 250 F.3d at 1008-09.

Considering the similarities between 28 U.S.C. § 2255 and RCr 11.42(10), and the fact that the denial of a motion under RCr 11.42 often results in the filing of a habeas petition within the jurisdiction of the Sixth Circuit, we now adopt the Dunlap test for determining whether equitable tolling is applicable to an otherwise limitation-barred RCr 11.42 motion. Dunlap factors one, two, and five are essentially incorporated within RCr 11.42(10)(a). Thus, the primary considerations adopted from Dunlap are factors three (diligence) and four (prejudice).

Appellant does not claim ignorance of the legal requirements for filing his RCr 11.42 motion. Thus, Dunlap factors one, two, and five and RCr 11.42(10)(a) do not apply to his late motion. If, indeed, Appellant delivered a properly prepared and properly addressed motion to the appropriate prison authorities prior to the expiration of the three-year limitation period, then he did "all that could reasonably be expected to get the [motion] to its destination within the required [time limit]," Fallen v. United States, 378 U.S. 139, 144...