Steven Bd. v. Bradshaw

• Decision Date: 10 November 2015
• Docket Number: No. 14–3199.,14–3199.
• Citation: 805 F.3d 769
• Parties: Steven BOARD, Petitioner–Appellant, v. Margaret BRADSHAW, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

805 F.3d 769

Steven BOARD, Petitioner–Appellant

v.Margaret BRADSHAW, Warden, Respondent–Appellee.

No. 14–3199.

United States Court of Appeals, Sixth Circuit.

Nov. 10, 2015.

ON BRIEF:Stephanie L. Watson, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Steven Board, Mansfield, Ohio, pro se.

Before: KEITH, CLAY, and WHITE, Circuit Judges.

OPINION

HELENE N. WHITE, Circuit Judge.

Petitioner–Appellant Steven Board appeals the district-court order dismissing his petition for a writ of habeas corpus, 28 U.S.C. § 2254, as untimely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d). This court granted a certificate of appealability on the issue whether Board's unsuccessful motion for leave to file a delayed appeal under Ohio Appellate Rule 5(A) tolled the statute of limitations under § 2244(d)(2). We hold that it did, and therefore REVERSE and REMAND for further proceedings.

I.

On September 24, 2010, Board pleaded guilty to one count of drug trafficking with forfeiture specifications, a felony in the first degree, pursuant to a plea agreement. (See generally Plea Tr., PID 167–77); see also Ohio Rev.Code § 2925.03(A)(2) (2008); id. § (C)(4)(f). The charge carried a mandatory prison term of between three and ten years, see Ohio Rev.Code § 2929.14(A)(1) (2009), and the plea agreement recommended a seven-year sentence. (See Plea Tr., PID 168–70.) On November 4, 2010, the trial court sentenced Board to seven years in prison. (Ohio Trial Ct. Journal Entry, PID 82; see also Sentencing Tr., PID 178–85.) Board did not timely appeal his sentence. However, on June 29, 2011, Board filed a pro se notice of appeal and motion for leave to file a delayed appeal under Ohio Appellate Rule 5(A). (Notice of Appeal & 5(A) Mot., PID 83–107.) Board asserted that he failed to timely appeal his sentence because both the trial court and trial counsel failed to inform him of his appellate rights. (Board Mem. in Supp. of 5(A) Mot., PID 102–06.) On July 27, 2011, the Ohio Court of Appeals summarily denied Board's motion. (Ohio App.Ct. Journal Entry, PID 132.) Board appealed the denial to the Ohio Supreme Court on September 12, 2011, (Notice of Appeal, PID 135–36; see also Board Mem. in Supp. of 5(A) Appeal, PID 137–52), and the court declined to hear the case on December 21, 2011, dismissing “the appeal as not involving any substantial constitutional question,” (Ohio S.Ct. Entry, PID 155).

On March 15, 2012, Board filed the instant § 2254 petition, (Pet., PID 3–7), raising two grounds for relief: 1) he was denied due process and equal protection when the trial court failed to inform him of his appellate rights and his subsequent motion for leave to file a delayed appeal was denied, and 2) his trial counsel was ineffective for failing to inform him of his appellate rights. (Board Br. in Supp. of Pet., PID 11–17.) Respondent–Appellee Margaret Bradshaw, Warden of Richland Correctional Institution (Respondent) filed a motion to dismiss the petition as time-barred under AEDPA's one-year statute of limitations. (Mot. to Dismiss, PID 48–58.)

A magistrate judge issued a Report and Recommendation finding the petition time-barred. (Report & Rec., PID 199–212.) The magistrate judge determined that 1) Board's lack of knowledge of his appellate rights did not delay the start of the limitations period, and 2) Board was not entitled to equitable tolling.¹ (Id. ) Board timely objected to the Report and Recommendation. (Objections to Report & Rec., PID 213–18.) The district court dismissed Board's objections and adopted the Report and Recommendation in its entirety. (District Ct. Op., PID 220–26.)

II.

We review de novo a district court's dismissal of a habeas petition as time-barred under 28 U.S.C. § 2244. Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir.2003). Board filed his petition after AEDPA became effective; therefore, the Act's one-year statute of limitations applies. See Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.2001). AEDPA § 2244(d)(1) 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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

Under § 2244(d)(2), the statute of limitations is tolled for “[t]he 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.” Id. § 2244(d)(2).

Although a motion for leave to file a delayed appeal under Rule 5(A) requests an extension of time in which to file a direct appeal, it is considered part of the collateral review process for purposes of tolling AEDPA's statute of limitations. See Searcy, 246 F.3d at 519 (declining to treat motion for leave to file delayed appeal as part of direct review process that would delay start of limitations period, and holding that such motion did not restart limitations period when denied); see also Anderson v. Brunsman, 562 F. App'x 426, 430 (6th Cir.2014) (treating request to file delayed appeal as post-conviction or collateral proceeding that tolled AEDPA's statute of limitations); Applegarth v. Warden N. Cent. Corr. Inst., 377 Fed.Appx. 448, 449 (6th Cir.2010) (observing that motions for leave to file delayed appeal, including under Rule 5(A), “ ‘are not part of the direct appeal’ for the purposes of § 2244(d)(1) ”) (citation omitted); DiCenzi v. Rose, 452 F.3d 465, 468–69 (6th Cir.2006) (noting Searcy 's holding that motions for leave to file delayed appeals are not part of direct review process for purposes of § 2244(d), and treating such motion as collateral motion that tolled AEDPA's statute of limitations). “[A]n application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) ; Walker v. Smith, 360 F.3d 561, 563 (6th Cir.2004). “These [rules] usually prescribe, for example, ... the time limits upon its delivery.” Vroman, 346 F.3d at 603 (quoting Artuz, 531 U.S. at 8, 121 S.Ct. 361 ) (second alteration in original).

III.

A.

Board's sentence became final on December 6, 2010, when the period for seeking direct review of his sentence expired. See 28 U.S.C. § 2244(d)(1)(A) ; Ohio App. R. 4(A).² Two hundred and five days elapsed between that date and June 29, 2011, the date Board filed his Rule 5(A) motion for leave to file a delayed appeal. If Board's motion was a “properly filed” motion for collateral relief, it tolled AEDPA's statute of limitations from that date until December 21, 2011, when the Ohio Supreme Court dismissed Board's appeal of the denial of his 5(A) motion. See Evans v. Chavis, 546 U.S. 189, 191, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006) (“The time that an application for state postconviction review is ‘pending’ includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.”).³ Another eighty-five days elapsed between the Ohio Supreme Court's dismissal of Board's appeal on December 21, 2011, and the filing of the instant petition on March 15, 2012; excluding the period during which Board's Rule 5(A) motion was pending, a total of 290 days elapsed between the time his sentence became final and the date he filed his § 2254 petition. Thus, if Board's Rule 5(A) motion is a “properly filed” motion for collateral relief under § 2244(d)(2), his petition is timely.

B.

Rule 5(A) provides an exception to the usual thirty-day time limit for filing direct appeals in certain types of cases, including criminal proceedings. Ohio App. R. 5(A)(1) ; see also Stone v. Moore, 644 F.3d 342, 346 (6th Cir.2011). Rule 5(A) prescribes the following requirements for filing a motion thereunder:

A motion for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the failure of the appellant to perfect an appeal as of right. Concurrently with the filing of the motion, the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by App. R. 3 and shall file a copy of the notice of the appeal in the court of appeals. The movant also shall furnish an additional copy of the notice of appeal and a copy of the motion for leave to appeal to the clerk of the court of appeals who shall serve the notice of appeal and the motions upon the prosecuting attorney.

Ohio App. R. 5(A)(2). There is no time limit for filing motions under Rule 5(A). See id.; see also Searcy, 246 F.3d at 519 (“Leave to file a late notice of appeal can be sought at any time, even many years after conviction.”) (citation omitted).

Board argues that because he filed his motion in accordance with the terms of Rule 5(A) at a time when the statute of limitations had still not run, the motion tolled the limitations period even though the Ohio Court of Appeals ultimately denied relief. (Board Br. 7–10.) This Circuit has repeatedly found that although an unsuccessful motion for leave to file a delayed appeal cannot restart the AEDPA limitations period, it may toll...