Barnett v. Lemaster ( 1999 )


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  •                                                                        F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    FEB 9 1999
    UNITED STATES COURT OF APPEALS
    PATRICK FISHER
    Clerk
    TENTH CIRCUIT
    WILLIAM J. BARNETT, also known
    as William Barnett,
    Petitioner-Appellant,
    v.                                      No. 98-2139
    TIM LEMASTER, Warden, New
    Mexico State Penitentiary;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,
    Respondents-Appellees.
    Appeal from United States District Court
    for the District of New Mexico
    (D.C. No. CIV-97-763-MV)
    Submitted on the briefs: 1
    William J. Barnett, appellant pro se.
    Tom Udall, Attorney General, and Patricia Gandert, Assistant Attorney General,
    Santa Fe, New Mexico, for the appellees.
    1
    After examining the briefs and appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
    Therefore, the case is ordered submitted without oral argument.
    Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
    BRISCOE, Circuit Judge
    Petitioner William Barnett, a state prisoner appearing pro se, appeals the
    district court’s dismissal of his 
    28 U.S.C. § 2254
     habeas petition on statute of
    limitations grounds. We reverse and remand for further proceedings.
    Barnett was convicted in 1991 of two counts of second degree criminal
    sexual penetration, kidnaping, aggravated burglary, attempted armed robbery,
    possession of a firearm or destructive device by a felon, and misdemeanor
    aggravated battery. He was sentenced to a total term of imprisonment of forty-six
    and one-half years. His convictions and sentence were affirmed on direct state
    appeal on July 2, 1992, and his petition for writ of certiorari was denied by the
    state supreme court on August 14, 1992.
    Barnett’s habeas petition in state court was denied on August 22, 1995, and
    he did not seek certiorari review. He filed a second habeas petition in state court
    on April 17, 1997, reasserting many issues previously raised and at least one new
    issue--constitutionality of sentencing. His second habeas petition was denied on
    April 22, 1997, and his petition for writ of certiorari was denied by the state
    supreme court on May 29, 1997.
    The present habeas petition was filed in federal district court on June 3,
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    1997. The district court adopted the order and recommendation of the magistrate
    judge and dismissed the petition as untimely. The district court issued a
    certificate of appealability.
    Since Barnett’s state convictions became final prior to enactment of the
    Antiterrorism and Effective Death Penalty Act of 1996, he had one year from
    April 24, 1996, to file an application for federal habeas relief. See 
    28 U.S.C. § 2244
    (d)(1); Hoggro v. Boone, 
    150 F.3d 1223
    , 1225 (10th Cir. 1998). The
    limitations period ran unabated until April 17, 1997, when Barnett filed his
    second application for habeas relief in state court. See 
    28 U.S.C. § 2244
    (d)(2).
    The crux of this appeal is whether the limitations period was tolled until the state
    court denied the second habeas application, as the district court found, or whether
    it remained tolled until the state supreme court denied certiorari, as Barnett
    asserts.
    “The 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” a state prisoner’s one-year period
    of limitation. 
    Id.
     The district court narrowly defined the term “pending” to mean
    only the time during which an application for post-conviction relief remains
    unresolved by a state district court. We conclude the term must be construed
    more broadly to encompass all of the time during which a state prisoner is
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    attempting, through proper use of state court procedures, to exhaust state court
    remedies with regard to a particular post-conviction application. Such a
    construction comports with the generally-accepted definition of the term.        See ,
    e.g. , Beverly Community Hosp. Assoc. v. Belshe        , 
    132 F.3d 1259
    , 1264-65 (9th
    Cir. 1997) (statutory reference to “pending” lawsuits encompasses not only
    undecided cases at district court level but also cases pending on appeal),    cert.
    denied , 
    119 S. Ct. 334
     (1998);   de Rodulfa v. United States , 
    461 F.2d 1240
    , 1253
    (D.C. Cir. 1972) (“suit is pending until the appeal is disposed of, and until
    disposition any judgment appealed from it is still sub judice”). It is also
    consistent with the requirement that state prisoners first exhaust all available state
    court remedies before seeking federal habeas relief.       See Picard v. Connor , 
    404 U.S. 270
    , 275 (1971); Dulin v. Cook , 
    957 F.2d 758
    , 759 (10th Cir. 1992)
    (concluding state prisoner did not fully exhaust state remedies because he did not
    seek certiorari review with state supreme court). Although we did not directly
    address the issue in Hoggro , we implicitly indicated § 2244(d)(2) encompasses a
    properly filed appeal and/or petition for writ of certiorari. 
    150 F.3d at
    1226 n.4
    (refusing to count additional time, for tolling purposes, during which prisoner
    appealed state court denial of habeas petition because appeal was untimely). The
    district court’s narrow definition of the term could result in state prisoners
    forfeiting their right to federal habeas review while attempting to fully exhaust
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    state court remedies.
    Barnett’s one-year period of limitation for filing an application for federal
    habeas relief was tolled from the time he filed his state application on April 17,
    1997, until the state supreme court denied his timely-filed petition for writ of
    certiorari on May 29, 1997.    See Martinez v. State , 
    796 P.2d 250
    , 251 (N.M. App.
    1990) (petition for writ of certiorari may be filed with supreme court within thirty
    days of denial of habeas petition). Thereafter, he had seven days, or until June 5,
    1997, to file an application for federal habeas relief. Barnett’s federal habeas
    petition was filed on June 3, 1997, and was clearly timely.   2
    REVERSED and REMANDED to the district court for further proceedings.
    Barnett’s motion to file his reply brief out of time and his motion to file an
    amended supplement to the reply brief are GRANTED.
    2
    We have not taken into account the “mailbox rule.”    See generally
    Houston v. Lack , 
    487 U.S. 266
    , 270 (1988) (pro se prisoner’s notice of appeal is
    “filed” when delivered to prison officials for forwarding to clerk).
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