Voravongsa v. Wall

• Decision Date: 12 November 2003
• Docket Number: No. 02-1606.,02-1606.
• Citation: 349 F.3d 1
• Parties: Lamphone VORAVONGSA, Petitioner, Appellant, v. A.T. WALL, Director, ACI, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

349 F.3d 1

Lamphone VORAVONGSA, Petitioner, Appellant, v. A.T. WALL, Director, ACI, Respondent, Appellee.

No. 02-1606.

United States Court of Appeals, First Circuit.

Heard September 5, 2003.

Decided November 12, 2003.

David J. Barend for appellant.

Jane M. McSoley, Assistant Attorney General, Rhode Island Department of Attorney General, with whom Patrick Lynch, Attorney General, was on brief for appellee.

Before BOUDIN, Chief Circuit Judge, SELYA, Circuit Judge, and SILER,^* Senior Circuit Judge.

SILER, Senior Circuit Judge.

In this appeal, we are asked to decide one question of law: whether petitioner Lamphone Voravongsa's¹ pro se motion for appointment of state post-conviction counsel constitutes a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim" within the meaning of 28 U.S.C. § 2244(d)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, thereby tolling the one-year period of limitations that would otherwise bar review of Voravongsa's federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Although the question is one of first impression in this circuit, a straightforward reading of 28 U.S.C. § 2244(d)(2), as well as the Rhode Island post-conviction statutory scheme, and the federal and state court decisions interpreting each of the statutes, make plain that Voravongsa's federal habeas petition was untimely under AEDPA's statute of limitations. Accordingly, the district court's dismissal of Voravongsa's habeas petition is affirmed.

I. BACKGROUND

In 1994, Voravongsa was convicted in Rhode Island of first degree murder. Although the trial court granted Voravongsa's motion for a new trial, the Rhode Island Supreme Court remanded the case with directions to deny the motion for a new trial, reinstate his conviction, and proceed with sentencing. See State v. Vorgvongsa, 670 A.2d 1250, 1255 (R.I.1996) (Vorgvongsa I). On remand, Voravongsa was sentenced to a mandatory term of life imprisonment. His direct appeal of that conviction was denied by the Rhode Island Supreme Court. See State v. Vorgvongsa, 692 A.2d 1194 (R.I.1997) (Vorgvongsa II). He did not file a petition for certiorari with the United States Supreme Court, and, pursuant to court rules, the ninety-day period in which he had to do so expired on July 14, 1997. Thus, on that date, his conviction became final.

For purposes of this appeal, the parties agree that on June 24, 1997, Voravongsa filed three separate motions in the Rhode Island Superior Court: (1) motion for appointment of counsel; (2) petition for a writ of habeas corpus ad testificandum; and (3) motion to assign.² On August 4, 1997, the Rhode Island Superior Court appointed an attorney to represent him. The parties agree that on September 4, 1998, thirteen months after being provided with counsel, and nearly seventeen months after the Rhode Island Supreme Court affirmed his conviction, Voravongsa filed a counseled application for state post-conviction relief pursuant to Rhode Island General Laws § 10-9.1-1 et seq. The application was denied on October 20, 1999. See In the Matter of Vorgvongsa, No. 98-4502, 1999 WL 1001187, at *1 (R.I.Super.1999) (Vorgvongsa III). On December 3, 2001, the Rhode Island Supreme Court affirmed the denial of relief. See Vorgvongsa v State, 785 A.2d 542, 550 (R.I.2001) (Vorgvongsa IV).

While waiting for a decision from the Rhode Island Supreme Court on his petition for state post-conviction relief, on March 24, 2000, Voravongsa filed in federal court a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a motion for the appointment of counsel. The State then moved to dismiss the petition on the ground that it was time-barred. The magistrate judge issued a report and recommendation that the habeas petition be dismissed as barred by AEDPA's statute of limitations. In relevant part, 28 U.S.C. § 2244(d)(1), as amended by AEDPA, which imposes a one-year period of limitations for filing a federal habeas petition, 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[.]

The relevant tolling provision, which is contained in 28 U.S.C. § 2244(d)(2), provides that "[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."

Accepting the State's argument, the magistrate judge reasoned that: (1) AEDPA's statute of limitations began to run when the time to petition for certiorari review of Vorgvongsa II expired on July 14, 1997; (2) the statute of limitations expired one year later on July 14, 1998; (3) Voravongsa's March 24, 2000, federal habeas application was untimely filed; and (4) there was no basis to toll the limitations period under 28 U.S.C. § 2244(d)(2) because Voravongsa did not file his State motion for post-conviction relief until September 4, 1998, almost two months after AEDPA's limitations period expired.

Voravongsa's attorney did not file an objection to the magistrate judge's report, although Voravongsa himself filed a pro se objection that, inter alia, argued that his habeas petition should not be dismissed as untimely because he had diligently pursued his state post-conviction remedy by filing — before AEDPA's limitations period expired — a motion to appoint counsel to represent him in his state post-conviction proceeding, as well as other motions. His objection implied that AEDPA's statute of limitations should be tolled onward from June 24, 1997, the date his pro se motion for appointment of counsel and other related motions were filed. Subsequently, the district court adopted the magistrate judge's report and recommendation and granted the State's motion to dismiss Voravongsa's habeas petition. It did not address Voravongsa's contention that his pro se motion for appointment of counsel, as well as other motions, tolled AEDPA's limitations period from the date on which those motions were filed. We granted a certificate of appealability (COA) on the issue of whether Voravongsa's "pro se motion for appointment of counsel to represent him in his state post-conviction proceeding may constitute a `properly filed application for State post-conviction ... review' within the meaning of 28 U.S.C. § 2244(d)(2)" (alteration in the COA).

II. ANALYSIS

1. Nature of Voravongsa's Request for Appointment of Counsel

"We review de novo the ... denial of [a] habeas application on procedural grounds." Melancon v. Kaylo, 259 F.3d 401, 404 (5th Cir.2001); see also Simpson v. Matesanz, 175 F.3d 200, 205 (1st Cir.1999) (applying de novo review to a district court's legal conclusions in a habeas proceeding).

As a matter of federal law, the Supreme Court has recently held that a federal habeas case commences with the filing of an application for habeas relief, not with the filing of a motion for appointment of federal habeas counsel, which the Court determined was not a motion on the merits. See Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1401-02, 155 L.Ed.2d 363 (2003); see also Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th Cir.2002) ("A habeas petition is pending only after a petition for a writ of habeas corpus itself is filed. Thus, the filing of the federal habeas petition — not of a motion for appointment of counsel — tolls limitations.") (internal quotation marks, citation, and footnote omitted), cert. denied, 537 U.S. 1116, 123 S.Ct. 878, 154 L.Ed.2d 793 (2003). As the Court reasoned, the "motion for counsel is not itself a petition, because it does not call for (or even permit) a decision on the merits. And it is `the merits' that the amended § 2254(d)(1) is all about." Woodford, 123 S.Ct. at 1401-02 (emphasis added) (quoting Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir.1997)); see also Isaacs v. Head, 300 F.3d 1232, 1245 (11th Cir.2002) ("[W]e hold that the relevant date for purposes of judging AEDPA's applicability to a habeas petition is the date on which the actual § 2254 petition was filed.... A motion for appointment of counsel has no relation to the merits of a habeas petition and does not seek any form of merits relief from a district court.").

In this appeal, we must answer a nearly identical question, but in the context of interpreting state law. Specifically, we must determine whether as a matter of Rhode Island law, Voravongsa's pro se filing for the appointment of counsel constitutes a "properly filed application for state post-conviction or other collateral review" pursuant to 28 U.S.C. § 2254(d)(2), thereby tolling AEDPA's otherwise expired one-year statute of limitations.³ Naturally, to answer this question, we will analyze Rhode Island law. See Carey v. Saffold, 536 U.S. 214, 223, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) ("[F]or purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions...."); Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.") (emphasis removed). For purposes of our analysis, we must keep in mind that "there is no federal precedent for treating a motion for appointment of counsel as a properly filed application for postconviction relief." Beery v. Ault, 312 F.3d 948, 951 (8th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 2590, 156 L.Ed.2d 615 (2003).

The Rhode Island Post Conviction Remedy Act (the Act), § 10-9.1-1 et seq., provides...