Tillema v. Long
| Decision Date | 19 June 2001 |
| Docket Number | RESPONDENTS-APPELLEES,PETITIONER-APPELLANT,No. 00-15974,00-15974 |
| Citation | 253 F.3d 494 |
| Parties | (9th Cir. 2001) JAMES TILLEMA,, v. MILES LONG, WARDEN; FRANKIE SUE DEL PAPA, |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOTE: SEE AMENDED OPINION OF AUGUST 3, 2001.
John C. Lambrose, Office of the Federal Public Defender, Las Vegas, Nevada, for the petitioner-appellant.
Rene L. Hulse, Deputy Attorney General, Las Vegas, California, for the respondents-appellees.
Appeal from the United States District Court for the District of Nevada Johnnie B. Rawlinson, District Judge, Presiding. D.C. No. CV-S-98-1372-JBR (RLH).
Before: Stephen Reinhardt, Pamela Ann Rymer, and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge Rymer
James Tillema appeals the dismissal, as untimely, of his petition for habeas corpus relief under 28 U.S.C.§§ 2254. We reverse.
Willema was indicted on August 30, 1993, in Clark County, Nevada, and charged with three counts of burglary (two vehicle break-ins and theft of a padlock from a Woolworth's store) and two counts of possession of burglary tools (a screwdriver and a "penlight"). He was prosecuted under Nevada's habitual offender statute and, after a two-day jury trial in which he represented himself, he was sentenced on November 23, 1993 to three consecutive life sentences on the burglary counts and two concurrent sentences of one year on the possession counts.
Tillema then commenced a complex and overlapping series of state challenges to his conviction and sentence. First, on March 14, 1994, Tillema filed a pro se "Motion to Vacate Illegal Sentence," in which he contended that his Pre-Sentence Investigation Report had contained "untrue factual allegations" -specifically, that he had violated his parole in a prior case, an allegation that he denied -that resulted in an improper sentence. The motion to vacate was dismissed by the trial court, and that dismissal was affirmed on the merits by the Nevada Supreme Court on December 4, 1994.
Meanwhile, through appointed counsel, Tillema initiated a direct appeal of his conviction on June 27, 1994, asserting six grounds for relief. On February 3, 1995, while that appeal was pending, Tillema filed a pro se habeas corpus petition in the state trial court, alleging two substantive grounds for appeal, as well as an ineffective assistance of appellate counsel claim based on his appointed counsel's failure to raise those two grounds on direct appeal. The trial court summarily dismissed the petition, and the Nevada Supreme Court dismissed Tillema's appeal from that dismissal on July 28, 1995.
Tillema then filed a second pro se "Motion to Vacate Illegal Sentence and Remand for a Proper Sentencing Hearing" on October 30, 1995. Tillema once again alleged that his Pre-Sentence Investigation Report had erroneously represented that he had violated his parole in a prior case. As a result of that incorrect information, Tillema contended, he was required to serve his alleged parole violation of four years before his new sentences could begin to run. While that motion was pending, a divided Nevada Supreme Court considered Tillema's direct appeal and affirmed his conviction in a published opinion on April 3, 1996.1
On September 26, 1996, Tillema commenced federal habeas proceedings by mailing his pro se section 2254 petition, together with a motion to proceed in forma pauperis, to the United States District Court for the District of Nevada. On November 15, 1996, the district court denied the in forma pauperis motion "[b]ased on information about Petitioner's financial status," and noted that two of Tillema's seven claims appeared to be unexhausted. The court directed Tillema to "file an amended petition showing when and how he exhausted the stated grounds for relief" no later than December 3, 1996. Tillema complied and filed an amended pro se petition on November 21, 1996, asserting that each of his seven claims was fully exhausted. The district court acknowledged, in an order dated January 16, 1997, that Tillema's amended petition had been received and was "now in proper order." The court gave Tillema 30 days in which to pay the five-dollar filing fee.
The district court received Tillema's filing fee on February 10, 1997. It acknowledged receipt of the fee and ordered that the state be served with Tillema's petition in an order dated April 25, 1997. On June 27, 1997, the State of Nevada filed a motion to dismiss, asserting that one of Tillema's seven claims -his allegation that the imposition of three life sentences for non-violent property offenses violated the Eighth Amendment's prohibition against cruel and unusual punishment -was unexhausted, because Tillema had presented the claim to the Nevada courts "under a different legal theory" without reference to the federal Constitution. In a Report and Recommendation entered on October 31, 1997, the magistrate judge agreed with the state and recommended that Tillema's petition be dismissed without prejudice for failure to exhaust his Eighth Amendment claim. District Judge Philip M. Pro adopted the magistrate's recommendation and dismissed Tillema's petition in an order dated December 12, 1997. The court's dismissal order failed to apprise Tillema of the option to strike the unexhausted claim and to proceed only with his exhausted claims as an alternative to dismissal.
On August 27, 1998 -nearly three years after Tillema had filed his second Motion to Vacate Illegal Sentence, and almost as long after he had appealed the trial court's dismissal of that motion -the Nevada Supreme Court issued an order disposing of the motion. It held that because it had"once considered and rejected [Tillema's] claims," its previous decision was "law of the case." The court therefore dismissed Tillema's appeal. The Remittitur issued on September 15, 1998.
One week later, on September 22, 1998, Tillema commenced the instant federal proceeding by mailing a motion for appointment of counsel, together with a new section 2254 petition, to the district court.2 The court appointed the Federal Public Defender as counsel and ordered that an amended petition be filed.
Tillema filed his amended petition on May 24, 1999. The state once again moved to dismiss, this time principally on the ground that Tillema's petition was time-barred. In a report entered on November 2, 1999, the magistrate judge recommended that Tillema's petition be dismissed with prejudice because it was untimely under 28 U.S.C. §§ 2244(d)(1).3 The magistrate concluded that Tillema was not entitled to statutory tolling under 28 U.S.C. §§ 2244(d)(2)4 during the pendency of any of his post-conviction proceedings. The district court adopted the magistrate's recommendation and dismissed Tillema's appeal in an order entered on March 29, 2000. Tillema timely appealed.
The Antiterrorism and Effective Death Penalty Act (AEDPA) established a one-year statute of limitations on the filing of federal habeas corpus petitions. Under 28 U.S.C. §§ 2244(d)(1)(A), state prisoners have one year from the date on which their convictions become final in which to initiate federal habeas corpus proceedings. That period of limitation is statutorily tolled, however, during the time in which "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ." 28 U.S.C. §§ 2244(d)(2). The parties agree that Tillema's conviction became final on July 2, 1996, when his time expired to seek certiorari in the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Absent any tolling of AEDPA's limitation period, then, Tillema's federal petition would have been due on July 2, 1997. Because Tillema did not file the instant petition until September 22, 1998, the petition was untimely unless statutory or equitable tolling excused the delay.
Tillema contends that he was entitled to tolling of AEDPA's limitations period for three reasons. First, he argues that his "Motion to Vacate Illegal Sentence," filed on October 30, 1995 and denied on September 15, 1998, was a"properly filed application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. §§ 2244(d)(2). Second, notwithstanding our contrary opinion in Jiminez v. Rice, 222 F.3d 1210 (9th Cir. 2000), rehearing granted and opinion withdrawn, 246 F.3d 1277 (9th Cir. 2001), he contends that he was entitled to statutory tolling during the pendency of his first section 2254 petition.5 Finally, he urges that any time in excess of AEDPA's limitation period should be equitably tolled, because the district court erred by dismissing his original section 2254 petition without providing him with the option of proceeding on his exhausted claims only. We agree with Tillema's first and third contentions and do not consider the second.
Under 28 U.S.C. §§ 2244(d)(2), "[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 shall not be counted toward any period of limitation under this subsection." It is undisputed that if Tillema's second "Motion to Vacate" tolled AEDPA's statute of limitations, the instant petition was timely filed: the motion was filed on October 30, 1995, before the limitations period began to run, and it was denied on September 15, 1998, only seven days before Tillema filed the petition.
The state successfully argued below that Tillema's motion to vacate was not "properly filed" within the meaning of section 2244(d)(2), because the Nevada Supreme Court denied the motion under the doctrine of "law of the case." However, after the district court dismissed Tillema's petition, but before...
To continue reading
Request your trial
-
Drew v. Department of Corrections, No. 99-4176.
...only the exhausted claims, with the result that the post-exhaustion federal petition is untimely under AEDPA. See Tillema v. Long, 253 F.3d 494, 503 (9th Cir. 2001). Moreover, as the majority observes in footnote 8, the timeliness problems in this case could have been avoided had the distri......
-
Neverson v. Farquharson
...do so. One circuit has equitably tolled the § 2244(d)(1) period where a habeas petitioner was not so advised. See Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir.2001). Nevertheless, we conclude that the district court abused its discretion in resorting to equitable tolling on the facts of t......
-
Valerio v. Crawford
...it may not dismiss a mixed petition without giving the petitioner the opportunity to delete the unexhausted claims. See Tillema v. Long, 253 F.3d 494, 503 (9th Cir.2001). However, if Valerio's potentially unexhausted claims are deleted in order to allow the exhausted claims to go forward im......
-
Alexander v. Johnson
...judgment, even if the particular application does not include a claim later asserted in the federal habeas petition." Tillema v. Long, 253 F.3d 494, 502-03 (9th Cir.2001). Under Texas law, "a challenge that a statute is unconstitutional on its face can be considered even when raised for the......