Hartmann v. Carroll ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-9-2007
    Hartmann v. Carroll
    Precedential or Non-Precedential: Precedential
    Docket No. 04-4550
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    Recommended Citation
    "Hartmann v. Carroll" (2007). 2007 Decisions. Paper 665.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/665
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 04-4550
    DETLEF F. HARTMANN,
    Appellant
    v.
    THOMAS CARROLL, Warden;
    ATTORNEY GENERAL OF STATE OF DELAWARE
    On Appeal from the United States District Court
    for the District of Delaware
    (D. C. No. 03-cv-00796)
    District Judge: Hon. Joseph J. Farnan, Jr.
    Argued on February 1, 2007
    Before: BARRY and ROTH, Circuit Judges
    IRENAS*, District Judge
    (Filed: July 9, 2007)
    Christopher R. Nestor, Esquire (Argued)
    David R. Fine, Esquire
    Kirkpatrick & Lockhart Preston Gates Ellis
    17 North Second Street
    18th Floor
    Harrisburg, PA 17101-1507
    Counsel for Appellant
    Elizabeth R. McFarlan, Esquire (Argued)
    Deputy Attorney General
    Delaware Department of Justice
    820 North French Street
    State Office Building
    Wilmington, DE 19801
    Counsel for Appellees
    OPINION
    Honorable Joseph E. Irenas, United States District Court
    Judge for the District of New Jersey, sitting by designation.
    2
    ROTH, Circuit Judge:
    Detlef F. Hartmann is an inmate at the Delaware
    Correctional Center in Smyrna, Delaware. He has filed an
    application for federal habeas relief under 
    28 U.S.C. § 2254
    .
    The United States District Court for the District of Delaware
    dismissed the application as time-barred under the one-year
    limitations period set forth in 
    28 U.S.C. § 2244
    (d)(1). Hartmann
    appeals, arguing that his application was timely because his
    filing of various motions in Delaware state court tolled the
    limitations period in accordance with § 2244(d)(2). Because we
    conclude that Hartmann’s motion under Delaware Superior
    Court Criminal Rule 35(b) did not meet the tolling requirements
    of § 2244(d)(2), we will affirm the judgment of the District
    Court, dismissing Hartmann’s petition as untimely.
    I. Background
    On March 29, 2001, Hartmann pled guilty in Delaware
    Superior Court to one count of second degree unlawful sexual
    intercourse and two counts of unlawful sexual contact. The
    victim of each count was a minor child. Hartmann was
    immediately sentenced, consistent with the plea agreement, to
    an aggregate of nineteen years of incarceration, suspended with
    decreasing levels of supervision after the mandatory minimum
    term of ten years. Hartmann did not appeal either his conviction
    or his sentence.
    On June 29, 2001, pursuant to Delaware Superior Court
    Criminal Rule 35(b), Hartmann filed a pro se motion in the
    Superior Court for sentence reconsideration, reduction, or
    3
    modification.1 In this motion, he sought a reduction in his
    sentence on the basis of thirteen “mitigating circumstances.”2
    The Superior Court denied the motion on June 25, 2002, noting
    that it had no discretion to reduce a mandatory minimum
    sentence.
    On November 12, 2002, Hartmann filed another motion,
    1
    DEL. SUPER CT. CRIM. R. 35(b) provides, in full:
    Reduction of Sentence. The court may reduce a sentence of
    imprisonment on a motion made within 90 days after the
    sentence is imposed. This period shall not be interrupted or
    extended by an appeal, except that a motion may be made within
    90 days of the imposition of sentence after remand for a new
    trial or for resentencing. The court may decide the motion or
    defer decision while an appeal is pending. The court will
    consider an application made more than 90 days after the
    imposition of sentence only in extraordinary circumstances or
    pursuant to 11 Del. C. § 4217. The court will not consider
    repetitive requests for reduction of sentence. The court may
    suspend the costs or fine, or reduce the fine or term or
    conditions of partial confinement or probation, at any time. A
    motion for reduction of sentence will be considered without
    presentation, hearing or argument unless otherwise ordered by
    the court.
    2
    Hartmann filed a duplicate of this motion on July 26, 2001.
    The filing of this duplicate did not appear to affect the Superior
    Court’s review and certainly did not change the dates during
    which the original motion was pending.
    4
    entitled “Motion to Dismiss.”3 In this motion, Hartmann
    challenged the jurisdiction of the Superior Court over the
    charges in his indictment and alleged that his counsel had been
    ineffective. On November 19, 2002, the Superior Court struck
    the motion, noting that a motion to dismiss was improper
    because Hartmann’s convictions were final. On March 20,
    2003, the Delaware Supreme Court affirmed this order,
    explaining that the Superior Court did not abuse its discretion in
    striking the motion as a nonconforming document “to the extent
    that” the motion did not comply with Rule 61. The Supreme
    Court also determined that Hartmann’s substantive argument
    was meritless.
    On August 4, 2003, Hartmann filed a habeas petition for
    federal collateral relief under 
    28 U.S.C. § 2254
    . The District
    Court dismissed the petition as time-barred under the one-year
    limitations period set forth in 
    28 U.S.C. § 2244
    (d)(1). The
    District Court found that Hartmann’s conviction had become
    final on April 30, 2001, and that he did not file his § 2254
    petition until August 4, 2003—well over two years later.
    Although the application would have been timely had the
    limitations period been tolled both by the Rule 35(b) motion and
    by the “Motion to Dismiss,” the District Court determined that
    Hartmann’s “Motion to Dismiss” could not toll the limitations
    period because it was not a “properly filed” application for state
    3
    Motions to dismiss are governed by DEL. SUPER CT. CRIM.
    R. 12. Under Rule 12(b)(2), motions alleging defects in the
    indictment must be raised prior to trial, though motions alleging
    failures of jurisdiction or failures to charge a crime may be
    raised at any time during the pendency of the proceedings.
    5
    post-conviction relief under § 2244(d)(2). Thus, the District
    Court found that the period from November 12, 2002, through
    March 20, 2003, should be counted as part of Hartmann’s one-
    year allowance and that, as a result, Hartmann’s § 2254 petition
    was untimely regardless of whether his Rule 35(b) motion tolled
    the limitations period. The District Court therefore declined to
    rule on the tolling effect of Hartmann’s Rule 35(b) motion.
    On November 1, 2005, a three-judge panel of our Court
    issued a certificate of appealability under 
    28 U.S.C. § 2253
    (c)(1)
    with regard to the District Court’s ruling that Hartmann’s § 2254
    petition was time-barred. We requested briefing with respect to
    the applicability of statutory tolling on the Rule 35(b) motion
    and the “Motion to Dismiss.”
    II. Jurisdiction and Standard of Review
    The District Court exercised jurisdiction over Hartmann’s
    petition pursuant to 
    28 U.S.C. § 2254
    (a). We have jurisdiction
    of this appeal pursuant to 
    28 U.S.C. §§ 1291
     and 2253. Our
    review of the timeliness of a federal habeas application is
    plenary. See Nara v. Frank, 
    264 F.3d 310
    , 314 (3d Cir. 2001).
    III. Discussion
    With the Antiterrorism and Effective Death Penalty Act
    of 1996 (AEDPA), Congress established a one-year limitations
    period within which a person in custody pursuant to the
    judgment of a state court may file an application in federal court
    6
    for a writ of habeas corpus. 
    28 U.S.C. § 2244
    (d)(1).4 Absent a
    state-created impediment to filing or the development of new
    constitutional rights or discoverable facts, none of which is
    present in this case, the limitations period runs from the date on
    which the state conviction “became final by the conclusion of
    direct review or the expiration of the time for seeking such
    review.” § 2244(d)(1)(A). Because Hartmann did not seek
    4
    
    28 U.S.C. § 2244
    (d)(1) provides, in full:
    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 limitations 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 to 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.
    7
    direct review of his sentence or his conviction, his conviction
    became final on the date on which his time for seeking direct
    review expired. In Delaware, a direct appeal of a criminal
    conviction must be filed within thirty days after the date of
    conviction. DEL. SUPR. CT. R. 6(a)(iii). Hartmann was
    convicted on March 29, 2001, and his conviction became final
    on April 30, 2001.5 Therefore, absent any tolling, Hartmann had
    until April 30, 2002, to file a federal habeas application that was
    timely under 
    28 U.S.C. § 2244
    (d)(1). Hartmann did not file his
    § 2254 petition until August 4, 2003.
    In AEDPA, Congress also provided a statutory
    mechanism by which petitioners may toll the one-year
    limitations period prescribed in § 2244(d)(1). 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.” Hartmann claims that his limitations period was
    tolled under § 2244(d)(2) during two periods of time: first,
    during the pendency of his Rule 35(b) motion, from June 29,
    2001, through June 25, 2002; and second, during the pendency
    of his “Motion to Dismiss,” from November 12, 2002, through
    March 20, 2003. For Hartmann’s § 2254 petition to be timely
    under § 2244(d)(1), both motions must have had the effect of
    tolling the limitations period; the time gained from either one,
    5
    The date thirty days after his conviction fell on a Saturday,
    and so the conviction became final on the following Monday
    pursuant to DEL. SUPR. CT. R. 11(a).
    8
    without the other, is insufficient.6
    We look first to the Rule 35(b) motion. The question we
    address is whether Hartmann, by filing a motion under Delaware
    Superior Court Criminal Rule 35(b), filed an “application for
    State post-conviction or other collateral review with respect to
    the pertinent judgment or claim” capable of tolling the one-year
    limitations period for filing a federal habeas application. To
    answer this question, we first must understand what Hartmann
    was requesting when he filed for relief under Rule 35(b).
    Unlike Delaware Superior Court Criminal Rule 35(a), which
    allows a court to “correct an illegal sentence,” and Rule 61,
    which governs the procedures by which a person can challenge
    a judgment on the ground that “the court lacked jurisdiction or
    on any other ground that is a sufficient factual and legal basis
    for a collateral attack,” Rule 35(b) “allows for a reduction of
    sentence without regard to the existence of a legal defect.” State
    v. Lewis, 
    797 A.2d 1198
    , 1201 (Del. 2002) (emphasis added).
    A Rule 35(b) motion is a plea for leniency, directed toward the
    sentencing court, which seeks discretionary relief based on
    mercy and grace, rather than on the law. A prisoner may make
    such a motion only once and, except in extraordinary
    circumstances, must file the motion within 90 days of the date
    on which the sentence was imposed or forfeit the right to do so.
    If the 90-day deadline is read together with the 30-day deadline
    for filing a direct appeal, most prisoners who file a Rule 35(b)
    6
    This appeal is limited to the issue of statutory tolling, and
    consequently, we do not address the question of equitable
    tolling, which the District Court considered and resolved in
    favor of Appellees.
    9
    motion will do so during the pendency of the direct appeal.7
    Importantly, a prisoner is not obligated to seek relief under Rule
    35(b); Delaware’s direct and collateral appellate review
    mechanisms operate independently of the Rule 35(b) procedures
    by which a prisoner may seek discretionary leniency.8
    7
    Indeed, Rule 35(b) expressly provides that the sentencing
    court has discretion either to decide the motion or to defer
    decision while the appeal is pending.
    8
    It is possible that a prisoner might file what is ostensibly a
    motion under Rule 35(b) and yet intend to seek relief other than
    discretionary leniency. We note this possibility because we bear
    in mind that pro se filings are to be construed liberally. See
    Haines v. Kerner, 
    404 U.S. 519
    , 520 (1972); Holley v. Dep’t of
    Veteran Affairs, 
    165 F.3d 244
    , 247 (3d Cir. 1999). Nonetheless,
    construing Hartmann’s motion liberally, we find that it is a pure
    plea for leniency in which Hartmann does not challenge the
    legality of his conviction or sentence. It is true that in seeking
    mercy, Hartmann referred to several bumps in the road toward
    his conviction and sentencing, including his confusion during
    the proceedings and his miscommunications with his attorney.
    He recited these facts, however, not to challenge the lawfulness
    of the proceedings, but to better establish his sympathetic
    character. Hartmann’s motion was written to persuade the
    Superior Court of his remorse, his history as a family man and
    productive member of the community, and the unlikeliness that
    he would repeat his offense. The Delaware courts interpreted
    Hartmann’s Rule 35(b) motion as a pure plea for leniency, and
    so shall we.
    10
    Thus, we are presented with the question: Does a
    properly filed plea for leniency, by which the prisoner seeks
    discretionary mercy and does not challenge the lawfulness of the
    sentence, toll the one-year limitations period for filing federal
    habeas application? In approaching this question, we are
    reminded that our Court has taken a “flexible approach” toward
    interpreting § 2244(d)(2). See Nara, 
    264 F.3d at 315
    .
    Flexibility, however, is not without limits; the application of a
    flexible approach requires recognition of the limits past which
    the rule in question will not bend.
    Nara involved a state court prisoner who had collaterally
    challenged his mental competence to enter a guilty plea but who
    had withdrawn his challenge after being informed that he had
    already litigated the issue in an earlier collateral proceeding. He
    then filed a motion to withdraw his guilty plea nunc pro tunc.
    
    Id. at 313
    . In a habeas proceeding before us, we held that, under
    our “flexible approach,” Nara’s motion was “certainly akin to an
    application for state post-conviction or other collateral review.”
    
    Id. at 316
    . Our decision was informed by the full consideration
    given to the motion by the state court. 
    Id.
     Even though Nara’s
    motion to withdraw the guilty plea was substantially similar to
    the earlier petition, we concluded that we would toll the §
    2244(d)(1) limitations period during the pendency of the motion
    because the motion attacked the lawfulness of the prisoner’s
    conviction in a procedure designed to allow post-conviction
    review of a previously litigated issue; thus, we deemed the
    motion to be properly filed under state law.
    Here, however, we have a state court proceeding that is
    not attacking the lawfulness of the conviction or of the sentence.
    11
    The motion here is for a discretionary exercise of leniency by
    the sentencing judge – leniency despite a conviction and a
    sentence which are not claimed to be invalid.
    We are aware of three other federal courts of appeals that
    have considered this question. Their opinions are discordant.
    The Fourth Circuit has held that a motion for reduction of
    sentence under West Virginia Rule of Criminal Procedure 35(b)
    is not an “application for State post-conviction or other
    collateral review” capable of tolling the limitations period under
    
    28 U.S.C. § 2244
    (d)(2). Walkowiak v. Haines, 
    272 F.3d 234
    ,
    239 (4th Cir. 2001). The Fourth Circuit reasoned that a motion
    for reduction of sentence on grounds of leniency cannot qualify
    as seeking review collateral to the original proceeding because
    (1) the review procedures are not “separate and distinct” from
    the original and (2) the prisoner does not allege that any legally
    cognizable error was committed. See Walkowiak, 
    272 F.3d at 237-38
    . We agree with the Fourth Circuit that for an application
    to be for “post-conviction or other collateral review,” the
    applicant must seek review that is collateral to the original
    judgment.
    Similarly, the Eleventh Circuit has held that a prisoner
    does not toll the limitations period pursuant to § 2244(d)(2) by
    requesting review of his or her sentence pursuant to section 17-
    10-6 of the Georgia Code, which provides for review by a three-
    judge panel to determine whether the sentence imposed was
    “excessively harsh.” Bridges v. Johnson, 
    284 F.3d 1201
    , 1203-
    04 (11th Cir. 2002). The court concluded that a judicial review
    procedure for determining whether a sentence is excessively
    harsh does not toll the limitations period of § 2244(d)(1)
    12
    “because it does not promote exhaustion by giving state courts
    the opportunity to consider federal-law challenges to state court
    judgments, and it does not promote finality of state court
    judgments by reducing the time in which federal review is
    sought.” Bridges, 
    284 F.3d at 1203
    .
    The Tenth Circuit, however, has determined that the
    limitations period is tolled pursuant to § 2244(d)(2) by a motion
    for reduction of sentence under Colorado Rule of Criminal
    Procedure 35(b), Robinson v. Golder, 
    443 F.3d 718
    , 720-21
    (10th Cir. 2006), and by a motion for modification of sentence
    under New Mexico Rule of Criminal Procedure 5–801(B).
    Howard v. Ulibarri, 
    457 F.3d 1146
    , 1149-50 (10th Cir. 2006).
    The Tenth Circuit based its decisions on comity because the
    state court had retained jurisdiction of the leniency proceeding
    during its pendency. We note, however, that the language of §
    2244(d)(2) specifies that the section is tolled only by “state post-
    conviction or other collateral review” – not by just any pending
    state court proceeding. For that reason, we are not persuaded by
    the reasoning of the Tenth Circuit.
    Moreover, Congress, in enacting AEDPA, intended to
    further principles of comity, finality, and federalism, which are
    promoted in large part through the requirement, set forth in 
    28 U.S.C. § 2244
    (b), that state remedies be exhausted before
    seeking federal review. Duncan v. Walker, 
    533 U.S. 167
    , 178
    (2001); Williams v. Taylor, 
    529 U.S. 420
    , 436 (2000). As such,
    the Supreme Court repeatedly has explained that courts are to
    evaluate the tolling rules of 
    28 U.S.C. § 2244
    (d) together with
    the exhaustion requirement. Specifically, we are instructed to
    seek a construction of § 2244(d)(2) which “promotes the
    13
    exhaustion of state remedies while respecting the interest in the
    finality of state court judgments.” Duncan, 
    533 U.S. at 178
    .
    The exhaustion requirement, in turn, “ensures that the state
    courts have the opportunity fully to consider federal-law
    challenges to a state custodial judgment before the lower federal
    courts may entertain a collateral attack upon that judgment.” 
    Id. at 178-79
    . Obviously, when a prisoner in state custody opts to
    file a motion for discretionary leniency, the state is not being
    asked to correct errors of legal moment. Whatever interest the
    state has in deciding the motion, its interest is not one in
    correcting errors before the federal courts assume jurisdiction.
    This understanding is confirmed by the Supreme Court’s
    recent pronouncement that “AEDPA’s exhaustion provision and
    tolling provision work together.” Lawrence v. Florida, 
    127 S. Ct. 1079
    , 1083 (2007). Where the goals of exhaustion end, the
    need for tolling recedes. Moreover, were we to hold that the
    optional Delaware Rule 35(b) motion has the effect of tolling
    the limitations period of § 2244(d)(1), we might create an
    incentive for prisoners to file frivolous requests for leniency
    merely as a delay tactic. Cf. id. at 1085. Finally, even though
    AEDPA’s tolling provisions may embrace goals other than
    exhaustion, such as comity and the desire to avoid simultaneous
    litigation, tolling for a leniency petition does not advance those
    goals. Accordingly, we conclude that a motion for sentence
    reduction properly filed pursuant to Delaware Superior Court
    Criminal Rule 35(b) does not have the effect of tolling the
    limitations period set forth in 
    28 U.S.C. § 2244
    (d)(1). During
    the pendency of Hartmann’s Rule 35(b) motion, the statutory
    limitations clock of § 2244(d)(1) continued to run, rendering his
    14
    federal habeas application untimely.9
    IV. Conclusion
    For the foregoing reasons, we will affirm the judgment
    of the District Court, dismissing as untimely Hartmann’s
    application for a writ of habeas corpus under 
    28 U.S.C. § 2254
    .
    9
    Because Hartmann’s Rule 35(b) motion did not toll the
    limitations period pursuant to 
    28 U.S.C. § 2244
    (d)(2), his
    federal habeas application was untimely regardless of whether
    his “Motion to Dismiss” had the effect of tolling the limitations
    period. We therefore decline to consider whether Hartmann’s
    “Motion to Dismiss” was improperly filed or to decide what
    effect to give to the language of the Delaware Supreme Court
    when it stated that the Superior Court did not abuse its discretion
    “to the extent that” Hartman’s “Motion to Dismiss” did not
    comply with Rule 61.
    15