Summers v. Schriro

• Decision Date: 13 March 2007
• Docket Number: No. 05-16650.,05-16650.
• Citation: 481 F.3d 710
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Marilyn Gene SUMMERS, Petitioner-Appellant v. Dora B. SCHRIRO, Director, Warden; Terry Goddard, Attorney General of the State of Arizona, Respondents-Appellees.

481 F.3d 710

Marilyn Gene SUMMERS, Petitioner-Appellant v. Dora B. SCHRIRO, Director, Warden; Terry Goddard, Attorney General of the State of Arizona, Respondents-Appellees.

No. 05-16650.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2006.

Filed March 13, 2007.

Daniel F. Davis, Tucson, Arizona, for the petitioner-appellant.

Sherri Tolar Rollison, Office of the Arizona Attorney General, Tucson, AZ, for the respondents-appellees.

Appeal from the United States District Court for the District of Arizona, William D. Browning, Senior District Judge, Presiding. D.C. No. CV-03-00620-CKJ.

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and SELNA,^* District Judge.

WILLIAM A. FLETCHER, Circuit Judge:

In this petition for federal habeas corpus brought under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we hold that an "of-right proceeding," available under Arizona Rule of Criminal Procedure 32 to criminal defendants who plead guilty, is a form of "direct review" within the meaning of 28 U.S.C. § 2244(d)(1)(A). Because a Rule 32 of-right proceeding is a form of direct review, AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review. We reverse and remand to the district court for further proceedings.

I. Background

Petitioner-Appellant Marilyn Summers pled guilty in Arizona Superior Court on November 12, 1997, to two counts of perjury, two counts of theft, and one count of fraudulent scheme and artifice. On December 15, 1997, she was sentenced to twenty years in prison and seven years of probation, and was ordered to pay more than $1.5 million in restitution. By pleading guilty, Summers waived her right to a conventional direct appeal under Arizona law, but she retained the right to seek review in an "of-right proceeding" under Arizona Rule of Criminal Procedure 32. See Ariz. R.Crim. P. 32.1, 32.4. As we explain below, a Rule 32 of-right proceeding shares a number of attributes with a conventional direct appeal. The primary difference is that a Rule 32 of-right proceeding begins in the Arizona Superior Court where the defendant was convicted and sentenced rather than in the Arizona Court of Appeals.

Summers timely sought review in a Rule 32 of-right proceeding. On March 7, 2001, the Superior Court for Pima County dismissed her petition. Summers then petitioned the Arizona Court of Appeals for discretionary review. The Court of Appeals granted review but denied relief on April 16, 2002. On October 31, 2002, the Arizona Supreme Court summarily denied discretionary review.

On December 12, 2003, Summers petitioned for federal habeas relief in federal district court under 28 U.S.C. § 2254. The State of Arizona argued that her petition was time-barred by 28 U.S.C. § 2244(d)(1)(A), which gives a state prisoner one year from the "conclusion of direct review or the expiration of the time for seeking such review" to seek federal habeas relief. The district court dismissed Summers' petition as untimely, holding that because she had pled guilty and waived the conventional form of direct appeal under Arizona law, the one-year clock began to run on December 15, 1997, the date of her sentence and judgment. After applying AEDPA's tolling provision to the period during which Summers' Rule 32 of-right proceeding was pending in the Arizona courts, the district court found that Summers' federal habeas petition was filed 79 days too late.

Summers appeals, arguing that her Rule 32 of-right proceeding was a form of "direct review" under 28 U.S.C. § 2244(d)(1)(A) that delayed the start of — rather than merely tolled-the running of the statute of limitations. For the reasons that follow, we agree with Summers.

II. Jurisdiction and Standard of Review

We have jurisdiction to review final district court orders pursuant to 28 U.S.C § 1291. We review de novo a district court's dismissal of a petition for writ of habeas corpus under AEDPA's statute of limitations. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (as amended). "We review de novo questions of statutory interpretation." Santiago Salgado v. Garcia, 384 F.3d 769, 771 (9th Cir.2004).

III. Discussion

Because Summers filed her federal habeas petition after April 24, 1996, AEDPA applies. Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir.1999). AEDPA requires state prisoners to seek federal habeas corpus relief within one year after (1) "direct review" concludes, or (2) "the time for seeking such review" expires. 28 U.S.C. § 2244(d)(1)(A). The one-year limitations period is tolled while a "properly filed application for State post-conviction or other collateral review . . . is pending." Id. § 2244(d)(2).

Summers argues that Arizona's Rule 32 of-right proceeding, while not a conventional direct appeal, is nonetheless a form of "direct review" under § 2244(d)(1)(A). The State of Arizona argues that a Rule 32 of-right proceeding is a form of "collateral review" under § 2244(d)(2). Whether an Arizona Rule 32 of-right proceeding is direct or collateral review under § 2244(d) is a question of first impression in this circuit.

A. Question of First Impression

We have dealt with Rule 32 in a similar factual context on one prior occasion. In Isley v. Arizona Department of Corrections, 383 F.3d 1054 (9th Cir.2004), we reviewed a district court holding that the federal habeas petition of Arizona state prisoner Bradford Isley was untimely under § 2244(d). Similarly to Summers, Isley had entered a no contest plea, thereby waiving his right to a conventional direct appeal under Arizona law. See Isley, 383 F.3d at 1055. Isley timely filed notice of a Rule 32 of-right proceeding 77 days after his conviction and sentencing. He filed his actual Rule 32 petition 226 days after filing his notice. Id.

Both Isley, acting pro se, and the State assumed that a Rule 32 of-right proceeding is collateral review under § 2244(d)(2). That is, both parties assumed that AEDPA's statute of limitations began to run as of the date of Isley's sentence and judgment, and that his Rule 32 proceeding tolled, rather than delayed the start of, the limitations period. Isley argued that the limitations period was tolled as soon as he filed his notice. The State argued, instead, that the limitations period was tolled only when Isley filed his actual petition. Isley, 383 F.3d at 1055. Without considering the possibility that a Rule 32 of-right proceeding might be a form of direct review under § 2244(d)(1)(A) rather than collateral review under § 2244(d)(2), we concluded that the tolling period began when Isley filed his notice. Id. at 1056. On the facts, we held that Isley was entitled to tolling and that his federal habeas petition was timely filed.

The State argues, based on Isley, that Summers' Rule 32 of-right proceeding is collateral review under § 2244(d)(2). For three reasons, we conclude that Isley does not foreclose us from considering, as a matter of first impression, whether Arizona's Rule 32 of-right proceeding is a form of direct review under § 2244(d)(1)(A) or a form of collateral review under § 2244(d)(2).

First, both parties in Isley assumed without discussion that a Rule 32 of-right proceeding is a form of collateral review under § 2244(d)(2). Our assumption to that effect in Isley, based on the parties' uncontested joint position, was unconsidered dictum. "Judicial assumptions concerning . . . issues that are not contested are not holdings." FDIC v. McSweeney, 976 F.2d 532, 535 (9th Cir.1992) (quoting United States v. Daniels, 902 F.2d 1238, 1241 (7th Cir.1990) (quotation marks omitted)); see also Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir.2004); United States v. Joyce, 357 F.3d 921, 925 n. 3 (9th Cir.2004); United States v. Johnson, 256 F.3d 895, 915 (9th Cir.2001) (en banc) (Kozinski, J., concurring) ("Where it is clear that a statement is made casually and without analysis, where the statement is uttered in passing without due consideration of the alternatives, or where it is merely a prelude to another legal issue that commands the panel's full attention, it may be appropriate to re-visit the issue in a later case.").

Second, a year after our decision in Isley, the Supreme Court held in Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005), that a first-tier "of-right" review procedure available to a plea-convicted Michigan defendant in lieu of a conventional direct appeal is a form of "direct review" to which a constitutional right to counsel attaches under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Halbert, 545 U.S. at 619, 125 S.Ct. 2582 ("[T]he Court of Appeals' ruling on a plea-convicted defendant's claims provides the first, and likely the only, direct review the defendant's conviction and sentence will receive." (emphasis added)). The of-right proceeding available to plea-convicted defendants in Michigan is analogous, though not identical, to a Rule 32 of-right proceeding in Arizona. Although Halbert did not directly deal with AEDPA, it signals that some non-traditional state review procedures are forms of direct rather than collateral review, and it casts doubt on the validity of our assumption in Isley. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc).

Third, Arizona courts have explicitly stated, after our decision in Isley, that a Rule 32 of-right proceeding is a form of "direct review" rather than collateral review, and that it is "the functional equivalent of a direct appeal." State v. Ward, 211 Ariz. 158, 118 P.3d 1122, 1125-26 (2005) (as amended), rev. denied (April 20, 2006); see also State v. Cleere, 213 Ariz. 54, 138 P.3d 1181, 1184 n. 2 (2006), rev. denied (June 27, 2006). These statements cast further doubt on our assumption in Isley. See Pershing Park Villas Homeowners Ass'n v....