Watts v. Norris, 02-3237EA.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Richard S. Arnold
• Citation: Watts v. Norris, 356 F.3d 937 (8th Cir. 2004)
• Decision Date: 30 January 2004
• Docket Number: No. 02-3237EA.,02-3237EA.
• Parties: Frank WATTS, II, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

Page 937

356 F.3d 937

Frank WATTS, II, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 02-3237EA.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2003.

Filed: January 30, 2004.

Rehearing and Rehearing En Banc Denied March 12, 2004.

Michael C. Angel, argued, Little Rock, AR, for appellant.

Jeffery A. Weber, argued, AAG, Little Rock, AR, for appellee.

Before RILEY, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

In this case we are asked to answer a question about the interaction of the federal one-year statute of limitations on habeas corpus petitions, 28 U.S.C. § 2244(d)(1), and an Arkansas procedure, Ark. R.App. P. — Crim. 2(e), providing, under certain circumstances, for a belated appeal from criminal convictions. The federal statute provides, with refinements not here relevant, that the one-year limitations period begins to run on "the date on which the judgment [of conviction in the state courts] became final by the conclusion of direct review or the expiration of the time for seeking such review...." 28 U.S.C. § 2244(d)(1)(A). In a case where a habeas petitioner has failed to file a direct appeal in the regular order, but has pursued his state-law right to seek a belated appeal, when does this period begin? Does it begin when his time for filing a regular direct appeal has expired, or does it begin at the conclusion of belated-appeal proceedings?

This question was alluded to, but not reached, in Wright v. Norris, 299 F.3d 926 (8th Cir.2002). In the present case, we granted a certificate of appealability to answer this question. We conclude, however, that we cannot now reach it. Even if we answered the question in petitioner's favor, his habeas petition would still stand dismissed, because an adequate and independent ground, with respect to which a certificate of appealability has not been and cannot be granted, supports the judgment of the District Court, dismissing the petition.

I.

Some procedural history is necessary for an understanding of the issues presented. On December 15, 1998, petitioner was found guilty by a jury of multiple felony offenses. The sentence was life in prison. State v. Frank Watts, II, No. CR97-2871 (Cir. Ct. Pulaski County, Ark.). Judgment was entered on January 21, 1999. No timely appeal was taken. Mr. Watts then filed a motion in the Supreme Court of Arkansas for leave to take a belated appeal. Such appeals are permitted in some cases by Ark. R.App. P. — Crim. 2(e). The Supreme Court, finding the factual record before it insufficient, remanded the case to the Circuit Court for an evidentiary hearing to determine whether petitioner, within the thirty days normally allowed for appeal, had requested his appointed counsel to file an appeal. Frank Watts, II v. State of Arkansas, No. CR00-201 (Ark. April 27, 2000) (per curiam).

On remand, the Circuit Court held an evidentiary hearing and found as a fact that Mr. Watts had not advised his lawyer that he wanted to appeal, or at least had not done so within the time allowed for filing a normal notice of appeal. The Supreme Court accepted this finding and denied the motion for belated appeal. Frank Watts, II v. State of Arkansas, No. CR00-201 (Ark. Sept. 28, 2000) (per curiam).

At this point, all proceedings in any way related to a direct appeal, or an effort to perfect one, were over. Petitioner then filed a motion for postconviction relief under Ark. R.Crim. P. 37. The Circuit Court of Pulaski County (with another judge presiding) denied the petition on the ground that Mr. Watts had not established that his lawyer had been guilty of ineffective assistance of counsel. (This was the ground asserted in support of the petition.) State of Arkansas v. Frank Watts, II, No. CR97-2871 (Jan. 4, 2001). Petitioner appealed this holding to the Supreme Court of Arkansas. That Court dismissed the appeal, not reaching the merits of petitioner's ineffective-assistance claim. The Supreme Court held that Mr. Watts's Rule 37 petition was untimely, and that he was thus procedurally barred from proceeding under that rule. The Court said:

This Court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail.... Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within ninety days of the date judgment was entered if the convicted defendant did not appeal from the judgment. As stated, appellant did not appeal from the judgment and he did not file his petition under Rule 37 until approximately twenty-one months after the judgment was entered. Time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition.

Frank Watts, II v. State of Arkansas, No. CRO1-544 (Ark. June 21, 2001) (per curiam), pp. 1-2.

The Court's opinion noted that a motion to proceed with a belated appeal had been filed and denied. The Court's holding that the Rule 37 petition was untimely is plainly based on the proposition that an unsuccessful attempt to pursue a belated appeal has no effect on the state-law time limit contained in Ark. R.Crim. P. 37.2(c). The Supreme Court denied a motion for reconsideration on September 27, 2001.

This was the end of proceedings in the state courts. Petitioner then filed the case before us, a petition for writ of habeas corpus, in the District Court. The State of Arkansas (in form, Larry Norris, Director of the Arkansas Department of Correction) asserted two procedural defenses: (1) that the petition was barred by the one-year federal statute of limitations contained in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1); and (2) that the petition was procedurally barred because none of the six grounds asserted by petitioner had ever been raised in the Arkansas state courts.

The case was referred to Magistrate Judge H. David Young, who prepared proposed findings and a recommendation to the District Court. The Judge recommended dismissal of the petition on both of the grounds asserted by the State. The merits of petitioner's claims (and they were, as before, based on his allegations of ineffective assistance of counsel) were not reached. Instead, dismissal was recommended on two independent grounds, either of which was sufficient to support this action: the federal habeas corpus statute of limitations, and the fact that petitioner's claims were procedurally barred because he had never raised them in the state courts. The second recommendation, of course, reflects the holding of the Supreme Court of Arkansas, under state law, that petitioner's postconviction petition was untimely, and that, therefore, it had no authority to reach the merits of his ineffective-assistance claims. The District Court¹ approved and adopted the findings and recommendations of the Magistrate Judge in their entirety. Judgment was entered accordingly. Thus, the result of the case in the District Court depends on two independent propositions, each of them adequate to support the judgment.

II.

Petitioner then turned his efforts to this Court. He filed a motion for appointment of counsel, which we granted. In the same order, we granted a certificate of appealability, which is a condition precedent to the taking of an appeal from a district court to a court of appeals from a final order in a habeas corpus proceeding brought by a state prisoner. 28 U.S.C. § 2253(c)(1)(A). Later, in ruling on a motion for clarification filed by the State, we said:

The Court intends to issue a certificate of appealability on only one issue: we note that the District Court decided this case before our decision in Wright v. Norris, 299 F.3d 926 (8th Cir.2002), and did not discuss the interplay between Arkansas Criminal Appellate Rule 2(e) and the Anti-Terrorism and Effective Death Penalty Act. It appears the present case squarely raises the issue noted but not decided in Wright, 299 F.3d at 928 n. 3. This is the issue on which a certificate of appealability is granted. A certificate of appealability is denied as to all the other issues in the case.

Thus, our order granting a certificate of appealability was made to comply with 28 U.S.C. § 2253(c)(3), which requires that such a certificate "shall indicate which specific issue or issues satisfy the showing required by paragraph (2)." The latter paragraph provides that a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Our second order, therefore, indicated our view that petitioner had made such "a substantial showing" on the AEDPA limitations issue, but had not done so on any other issue, including the question of procedural default.

At the oral argument, we were made aware that the judgment of the District Court rested on two independent grounds, only one of which was properly before us. We raised with counsel the question whether we had jurisdiction of the appeal — was the case, in the limited posture in which we found it, a real "case" or "controversy" as those terms are used in Article III of the Constitution? Even if we were to hold in favor of the petitioner on the AEDPA limitations issue, and send the case back to the District Court, petitioner would derive no benefit. The District Court's holding of procedural default would remain, and the petition would still be dismissed on that independent ground, a ground as to which we had denied a certificate of appealability, and which, accordingly, we could not reach. We suggested to counsel that the problem might be solved if we expanded the certificate of appealability to include the procedural-default issue. Neither side expressed any objection to such a procedure, though the discussion was rather brief.

Following this train of...