Siebert v. Campbell

• Decision Date: 23 June 2003
• Docket Number: No. 02-13685.,No. 02-15890.,02-13685.,02-15890.
• Citation: 334 F.3d 1018
• Parties: Daniel SIEBERT, Petitioner-Appellant, v. Donal CAMPBELL, Commissioner, Alabama Department of Corrections, Charlie E. Jones, Warden, William H. Pryor, Jr., The Attorney General of the State of Alabama, Respondents-Appellees. Daniel Siebert, Petitioner-Appellant, v. Donal Campbell, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

334 F.3d 1018

Daniel SIEBERT, Petitioner-Appellant, v. Donal CAMPBELL, Commissioner, Alabama Department of Corrections, Charlie E. Jones, Warden, William H. Pryor, Jr., The Attorney General of the State of Alabama, Respondents-Appellees.

Daniel Siebert, Petitioner-Appellant, v. Donal Campbell, Commissioner, Alabama Department of Corrections, Respondent-Appellee.

No. 02-13685.

No. 02-15890.

United States Court of Appeals, Eleventh Circuit.

June 23, 2003.

LaJuana S. Davis, Equal Justice Initiative of Al., Montgomery, AL, for Siebert.

Ed. R. Haden, Birmingham, AL, James Roy Houts, Nathan A. Forrester, Montgomery, AL, for Respondents-Appellees.

Appeals from the United States District Court for the Northern and Middle District of Alabama.

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Daniel Siebert appeals from the dismissal of his petitions for habeas corpus under 28 U.S.C. § 2254. Although his case reaches us some eleven years after he first sought collateral review of his convictions and sentences of death, the courts have to date determined only that he is subject to procedural bars and therefore have never allowed the merits of his claims to control.¹ The district courts dismissed Siebert's petitions on the ground that they were untimely under the one year statute of limitations established by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), now codified at 28 U.S.C. § 2244(d)(1). Siebert had argued that the one-year deadline did not bar his petitions because a separate AEDPA provision, 28 U.S.C. § 2244(d)(2), tolled the limitations period for the time during which his "properly filed" applications for post-conviction relief were pending in the Alabama courts.

Because state courts had held in these proceedings that Siebert had missed the expiration of Alabama's own post-conviction statute of limitations, the district courts concluded that Siebert's state petitions were not "properly filed" and that AEDPA's tolling provision thus did not apply. The question before us is therefore whether Siebert's Alabama petitions, which were accepted by the courts but ultimately found to have been filed late, should be considered "properly filed" within the meaning of AEDPA's tolling provision and the Supreme Court's interpretation of that term in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000).

BACKGROUND

Siebert was tried in two separate prosecutions, one in Talladega County (for the murder of Linda Jarman) and one in Lee County (for the murder of Sherri Weathers and her two minor sons). He was found guilty of all charges, and at the end of each of his trials he was sentenced to death, twice. Siebert appealed his two convictions and sentences to the Alabama Court of Criminal Appeals, which issued separate decisions addressing different challenges Siebert had raised in each case. The Alabama Supreme Court subsequently denied relief, publishing its own analysis of many of Siebert's claims in the Lee County case, Ex parte Siebert, 555 So.2d 780 (Ala.1989), as well as a summary statement in the Talladega County case announcing that it had found "no error or defect in the proceedings that adversely affected the rights of the defendant." Ex parte Siebert, 562 So.2d 600 (Ala.1990). Siebert petitioned the United States Supreme Court for certiorari but was denied review separately in each case in 1990.

In 1992 Siebert filed the two petitions that are relevant here, challenging his Lee County and Talladega County convictions and sentences separately in each county's circuit court under Rule 32 of the Alabama Rules of Criminal Procedure. The state responded with separate answers in the months following each of Siebert's petitions, conceding that Siebert was entitled to an evidentiary hearing on his claim that counsel had provided ineffective assistance. The petitions were consolidated for an evidentiary hearing in the Lee County Circuit Court. After Siebert filed amendments to both petitions on March 29, 1995, the trial court commenced hearing evidence on April 3, 1995.

The next day, the state asserted for the first time that Siebert's applications were barred because he had failed to meet the two-year statute of limitations then generally applicable to most post-conviction claims in Alabama.² After continuing to take evidence on April 4 and 5, as well as on September 26, 1995 and January 21, 1997, the circuit court adopted the state's proposed, 87-page memorandum opinion as its final judgment, denying Siebert relief on a variety of substantive and procedural grounds. Among the many findings of the circuit court was its determination that relief was precluded by Rule 32's statute of limitations.

The Court of Criminal Appeals affirmed, finding no merit in Siebert's argument that the two-year statute of limitations set forth in Ala. R.Crim. P. 32.2(c) must be raised as an affirmative defense in the state's first responsive pleading. Siebert v. State, 778 So.2d 842, 847-48 (1999). The court distinguished two earlier Alabama cases holding the state to have waived the limitations defense, reading them as addressing only the circumstance in which the state raises the defense for the first time on appeal. Id. Noting that Siebert had been allowed to amend his petitions on March 29, 1995, five days before the evidentiary hearing, the court reasoned that the state was properly allowed to do the same within a reasonable time. Id. at 848 (adopting portion of circuit court's opinion).

On September 14, 2001, Siebert filed two different federal habeas petitions, one in the Middle and one in the Northern District of Alabama. Both district courts held his petitions untimely under AEDPA because they were not filed within a year of that statute's effective date. The district court decisions, although accepting the premise that a state time bar must be firmly established and regularly followed to render a late petition improperly filed, nonetheless rejected Siebert's claim that the Alabama statute of limitations failed to meet this standard. The district court decisions also declined to apply the doctrine of equitable tolling on Siebert's behalf. Both district courts thereafter granted Siebert certificates of appealability.³

DISCUSSION

Under 28 U.S.C. § 2244(d)(1), persons in custody pursuant to a judgment of a state court may file petitions for habeas corpus within one year of any of four dates specified by the statute.⁴ Because Siebert's convictions became final prior to the effective date of AEDPA, he had until April 23, 1997 to file a federal habeas petition. Wilcox v. Florida Dept. of Corrs., 158 F.3d 1209, 1210 (11th Cir.1998). Siebert did not file until September 14, 2001. He argues, however, that the one-year statute of limitations does not bar his petitions because AEDPA also provides that:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(2). Siebert's entitlement to have the limitations period tolled thus depends on whether his applications for state post-conviction review under Ala. R.Crim. P. 32 were "properly filed." If they were, his federal habeas petitions are not untimely because the federal limitations period would have been tolled from April 24, 1996 until September 15, 2000, the date on which the Alabama Supreme Court denied review. Since Siebert filed on September 14, 2001, he will have met the one-year deadline.

I. "Properly Filed" Inquiry Under AEDPA's Tolling Provision

The first round of jurisprudence construing the meaning of "properly filed" produced a circuit split. A majority of circuits determined that an application for post-conviction relief could be "properly filed" even if claims asserted therein were procedurally barred or otherwise meritless. Habteselassie v. Novak, 209 F.3d 1208, 1211 (10th Cir.2000) ("affirmative defenses that preclude a court from granting relief on the merits, as opposed to pure filing requirements, require analysis in some manner of the substance of the claims set forth by the petitioner and do not prevent a motion from being `properly filed' for purposes of § 2244(d)(2)"); Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir.1999) (declining "to engraft a merit requirement into § 2244(d)(2) without some indication of congressional intent to do so") (internal quotation marks and citation omitted), aff'd, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000); Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir.1999) (criticizing authorities that "have offered little analysis to support their conclusion that the phrase `properly filed' connotes some measure of merit"); Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir.1998) (rejecting "the notion that a meritless PCRA petition cannot constitute `a properly filed application' under § 2244(d)(2)").

Two other circuits, however, held that applications containing claims barred under state procedural rules are not "properly filed," regardless of whether a procedural bar constituted a filing requirement per se. Dictado v. Ducharme, 189 F.3d 889, 892 (9th Cir.1999) (defining "`properly filed application' to mean an application submitted in compliance with the procedural laws of the state in which the application was filed"); Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir.1999) (holding that state "screening mechanisms ... determine when an application for postconviction relief is proper (as in `properly filed')"). This circuit aligned itself with the view of the Seventh and Ninth Circuits. See Weekley v. Moore, 204 F.3d 1083, 1086 (11th Cir.2000) (holding that failure to comply with "procedural requirement forbidding successive motions" rendered petition improperly filed because "we are persuaded by the reasoning" of Dictado and Tinker); but see id. at 1086 (Barkett, J., dissenting) (criticizing...