Wyzykowski v. Dept. of Corrections

• Decision Date: 11 September 2000
• Docket Number: No. 98-4971,98-4971
• Citation: 226 F.3d 1213
• Parties: (11th Cir. 2000) Micheal WYZYKOWSKI, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Harry K. Singletary, Attorney General, Robert Butterworth, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1213

226 F.3d 1213 (11th Cir. 2000)

Micheal WYZYKOWSKI, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Harry K. Singletary, Attorney General, Robert Butterworth, Respondents-Appellees.

No. 98-4971.

United States Court of Appeals, Eleventh Circuit.

September 11, 2000.

September 21, 2000.

Appeal from the United States District Court for the Southern District of Florida.(No. 97-08585-CV-WDF), Wilkie D. Ferguson, Jr., Judge.

Before ANDERSON, Chief Judge, and DUBINA and SMITH^*, Circuit Judges.

ANDERSON, Chief Judge:

Micheal Wyzykowski appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. For the reasons stated below, we vacate and remand.

I. BACKGROUND

In 1992 Wyzykowski was charged with the first degree murder of Fred Butterworth and the attempted burglary of shoes from the victim's dwelling. After pleading guilty to second degree murder in 15th Judicial Circuit Court, Palm Beach County, Florida, pursuant to a negotiated plea agreement, Wyzykowski was convicted and sentenced to twenty-three years imprisonment. Wyzykowski did not file a direct appeal or pursue state collateral relief.

In July 1997, Wyzykowski filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. He claimed that he was denied his Sixth Amendment right to effective assistance of counsel. In particular, he claimed that his counsel failed to investigate the case properly before advising him to plead guilty to second degree murder. In addition, Wyzykowski claimed that he was actually innocent of second degree murder because the victim actually started the fight with him; of first degree premeditated murder because he was too intoxicated to form the requisite intent and again because the victim started the fight; of first degree felony-murder because he was not guilty of attempted burglary; and of attempted burglary because the shoes he allegedly attempted to burgle were actually his own shoes, he lacked the capacity due to intoxication to form the requisite specific intent for burglary, and there is no evidence that he entered the dwelling to commit a crime. The new evidence for these claims is Wyzykowski's detailed statements regarding the events that led to Butterworth's death.

Wyzykowski explained that he pleaded guilty at the tearful urging of his appointed defense counsel, who indicated, on the eve of trial, that she was not prepared to try the case and that she would withdraw if he did not change his plea. Wyzykowski also contended that his counsel informed him that it made no difference that Buttersworth attempted to take his shoes, that "the indictment nullified all defenses," and that if he proceeded to trial he would surely be found guilty and, even if the State did not seek the death penalty, the judge would still sentence him to death. He claimed that had he had effective assistance of counsel he would have been able to prove that he was innocent of the crimes with which he was charged and the crime to which he pleaded guilty.

On August 25, 1997, the magistrate judge issued the usual show cause order, ordering a response to Wyzykowski's petition. The State responded, asserting that the claim was time-barred. However, the State did not file the record of the state court proceedings. See Rule 5, Rules Governing 2254 Cases. On April 21, 1998, a magistrate judge issued a report, noting in passing that petitioner failed to exhaust his claims in state court, but recommending that the petition be dismissed for failure to comply with the one-year limitation period for habeas corpus petitions enacted by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, codified as amended at 28 U.S.C. 2244(d). On May 28, 1998, the district court dismissed the petition as time-barred.

On July 6, 1998, the district court granted a certificate of appealability on the following issue:

Whether the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104- 132, 110 Stat. 1214, codified as amended at 28 U.S.C. 2244(d), as applied to Petitioner is an unconstitutional suspension of the Writ of Habeas Corpus in violation of the United States Constitution Article I, Section 9, clause 2.

Accordingly, Wyzykowski appeals on this issue.

II. DISCUSSION

We review the district court's dismissal of Wyzykowski's petition de novo because this issue is solely one of law. See Sandvik v.. United States, 177 F.3d 1269, 1271 (11th Cir.1999) (per curiam ).

Wyzykowski concedes that his federal habeas corpus petition was not filed within the one-year limitation period established by AEDPA, but argues that this limitation period constitutes an unconstitutional suspension of habeas relief or that an "actual innocence" exception to the one-year limitation period must be read into the statute to avoid rendering the habeas remedy "inadequate and ineffective" and violating the Suspension Clause of the Constitution.

The Suspension Clause provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, 9, cl. 2. Despite this constitutional restriction, the "judgments about the proper scope of the writ are 'normally for Congress to make.' " Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323, 116 S.Ct. 1293, 1298, 134 L.Ed.2d 440 (1996)). In Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), the Supreme Court held that "the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." Id. at 381, 116 S.Ct. at 1230. We thus consider whether 2244(d)'s limitation period renders the remedy inadequate or ineffective to test the legality of a person's detention.

The "substitution" at issue here is of collateral relief with a one-year limitation period for collateral relief without a limitation period. In particular, 2244(d)(1) now provides:

A 1-year period of limitation shall apply to any application for writ of habeas corpus by 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 of 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). Prior to the addition of this limitation period, the only time limitation was provided by Rule 9(a), Rules Governing 2254 Cases, which permits dismissing a 2254 habeas petition "if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred."¹ Section 2244(d)(1), in contrast, provides for a one-year limitation period and does not require a showing that the state was prejudiced. However, it does resemble Rule 9 by not beginning the one-year period until 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)(D). In addition, in the event of illegal state action preventing the petitioner from filing, the limitation period does not begin until after the state impediment is removed. See 28 U.S.C. 2244(d)(1)(B). Also in the event that the Supreme Court newly recognizes a constitutional right and makes it retroactively applicable to cases on collateral review, the limitation provision permits filing a petition asserting such a right for a year after the initial recognition of the right. See 28 U.S.C. 2244(d)(1)(C). Moreover, "[section 2244] permits equitable tolling 'when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable with diligence.' " Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000)(quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999) (per curiam )).²

Every court which has addressed the issue-i.e., whether, as a general matter, 2244(d) constitutes an unconstitutional suspension of the writ-has concluded that it does not.³ The Supreme Court has not directly addressed the issue in the context of a first federal habeas corpus petition. However, in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Court held that AEDPA's restrictions on successive petitions "do not amount to a 'suspension' of the writ." Id. at 664, 116 S.Ct. at 2340. In so holding, the Court noted that restrictions on the scope of the writ, like the doctrine of abuse of the writ, are " 'a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.' " Id. (quoting McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467, 113 L.Ed.2d 517 (1991)). The Court held that "judgments about the proper scope of the writ are 'normally for Congress to make.' "' Id. (quoting Lonchar, 517 U.S. at 323, 116 S.Ct. at 1298).

In light of the above mentioned exceptions to the one-year limitations period, and in light of the...