Hector Escalante v. Bryan Watson ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7240
HECTOR VASQUEZ ESCALANTE,
Petitioner - Appellant,
v.
BRYAN WATSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:10-cv-00370-sgw-mfu)
Argued: March 22, 2012 Decided: July 18, 2012
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the majority
opinion, in which Judge Niemeyer concurred. Judge Davis wrote a
dissenting opinion.
ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant. Benjamin Hyman
Katz, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee. ON BRIEF: Scott Miglori, Third Year Law
Student, Kinal M. Patel, Third Year Law Student, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Appellant. Kenneth T.
Cuccinelli, II, Attorney General of Virginia, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
Petitioner Hector Vasquez Escalante appeals the district
court’s dismissal of his petition for writ of habeas corpus
challenging his convictions and sentence in Virginia. He
contends that the district court erred in dismissing his
petition as untimely. For the reasons that follow, we affirm.
I.
On October 12, 2007, Escalante was convicted, in the
Circuit Court of Pittsylvania County, Virginia, of abduction,
robbery, malicious bodily injury, and use of a firearm in the
commission of the three aforementioned felony offenses. That
court sentenced him to a total of seventy-eight years’
imprisonment.
On direct appeal, the Court of Appeals of Virginia affirmed
his conviction on August 19, 2008 and the Supreme Court of
Virginia denied Escalante’s petition of appeal to that court on
December 18, 2008. From that denial, Escalante did not seek a
writ of certiorari from the Supreme Court of the United States.
However, on September 14, 2009, proceeding pro se,
Escalante filed a state writ of habeas corpus petition in the
Circuit Court of Pittsylvania County, which that court denied
and dismissed on December 15, 2009. From that dismissal,
3
Escalante appealed to the Supreme Court of Virginia. But that
court refused Escalante’s petition on July 27, 2010, on the
grounds that the petition “was not perfected in the manner
provided by law” and thus not properly filed because the appeal
“does not list the specific errors in the lower court
proceedings,” pursuant to Rule 5:17(c) of the Rules of the
Supreme Court of Virginia. 1 J.A. 50-51.
On August 16, 2010, again proceeding pro se, Escalante
petitioned for a writ of habeas corpus in the U.S. District
Court for the Western District of Virginia, asserting four
grounds for the invalidity of his conviction and sentence,
including assertions that counsel was ineffective, that his
Fifth Amendment privilege against self-incrimination was
violated, and that there was insufficient evidence to support
his conviction.
On August 19, 2010, the magistrate judge entered an order,
noting that, among other things, the petition appeared to be
untimely under 28 U.S.C. § 2244(d)(1)(A). The magistrate judge
directed Escalante to provide any arguments or evidence in favor
1
The Supreme Court of Virginia remanded the case to the
trial court for the limited purpose of correcting Escalante’s
middle name in the trial court’s final order.
4
of timeliness within ten days. On August 24, 2010, Escalante
filed a response arguing that his petition for appeal to the
Supreme Court of Virginia was “properly filed” but was refused
“because it was not perfected.” J.A. 92. Escalante also argued
that he “listed assignments of error as required by the Court
and did mention the trial court’s errors throughout the
Petition, [but] apparently did not do so in compliance and
perfection of Court Rules that the Petitioner did not know, as
he was proceeding pro-se.” Id. Escalante did not include a
copy of the petition for appeal to the Supreme Court of Virginia
in either his federal petition for writ of habeas corpus or his
supplemental pleading.
On August 31, 2010, in a memorandum opinion and order, the
district court sua sponte dismissed Escalante’s petition on the
grounds that it was not timely filed in accordance with the one-
year limitations period under 28 U.S.C. § 2244(d). The district
court found that Escalante failed to perfect his appeal in the
manner provided by Va. Sup. Ct. R. 5:17(c), which requires that
the petition for appeal include a list of errors under a heading
entitled “Assignments of Error.” J.A. 101-02. Consequently,
the district court found that Escalante’s federal habeas
petition should be dismissed as untimely filed. The district
court held that Escalante, despite being given the opportunity
5
to amend his petition, failed to articulate any equitable basis
for tolling the statute of limitations. The district court
concluded that the petition for appeal was not “properly filed”
and, therefore, was not tolled under the one-year limitations
period under 28 U.S.C. § 2244(d)(1). J.A. 103. Escalante
appealed, and we granted a certificate of appealability on the
issue of whether the district court erred in dismissing as
untimely his § 2254 petition.
II.
On appeal, Escalante’s sole argument is that the district
court erred in dismissing his application for a writ of habeas
corpus as untimely because the statute of limitations set forth
in 28 U.S.C. § 2244(d)(1) was tolled during the time his
petition to the Supreme Court of Virginia was pending. We
disagree.
A.
We review the denial of habeas relief on timeliness grounds
de novo. United States v. Hopkins, 268 F.3d 222, 224 (4th Cir.
2001). The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs habeas petitions and sets forth the
limitations period: “A 1-year period of limitation shall apply
6
to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” 28 U.S.C. §
2244(d)(1). Under the AEDPA, the one-year period within which
to file a federal habeas petition runs from “the date on which
the judgment 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 short, the AEDPA provides that upon conclusion of
direct review of a judgment of conviction, the one-
year period within which to file a federal habeas
petition commences, but the running of the period is
suspended for the period when state post-conviction
proceedings are pending in any state court. Every
circuit court that has construed 28 U.S.C. § 2244(d)
has interpreted it in this way.
Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). We
have recognized that the exhaustion and tolling provisions in 28
U.S.C. § 2244(d)(2) serve not only the interests of comity, but
also the interests of judicial efficiency. See Yeatts v.
Angelone, 166 F.3d 255, 261 (4th Cir. 1999).
In this case, the district court concluded that the time
allowed for tolling the petition in accordance with 28 U.S.C. §
2244(d)(2) was limited to the period of time in which
Escalante’s state habeas petition remained under consideration
in the state habeas trial court. The statute of limitations
tolled on September 14, 2009, after approximately 180 days, when
Escalante filed his state habeas petition in the Pittsylvania
7
County Circuit Court. However, the clock began to run again on
December 15, 2009, when the Pittsylvania County Circuit
dismissed the petition. Although Escalante appealed the
Pittsylvania County Circuit Court’s dismissal to the Supreme
Court of Virginia, the appeal was refused because it was not
“perfected in the manner provided by law” and, therefore, was
not “properly filed.” J.A. 103. Escalante filed the federal
habeas petition on August 16, 2010, approximately 244 days after
the Pittsylvania County Circuit Court dismissed his habeas
petition. Thus, according to the district court, the time clock
on his statute of limitations ran for a total of 424 days.
Therefore, his claims were time-barred.
B.
The Supreme Court has addressed the meaning of “properly
filed,” stating that:
[A]n application is “properly filed” when its delivery
and acceptance are in compliance with the applicable
laws and rules governing filings. These usually
prescribe, for example, the form of the document, the
time limits upon its delivery, the court and office in
which it must be lodged, and the requisite filing fee.
Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations omitted). In
Artuz, the Supreme Court held that time limits on state
petitions are “condition[s] to filing,” and that an untimely
petition would not be deemed “properly filed.” 531 U.S. at 11.
8
In determining whether a pleading filed in state court was
“properly filed” for purposes of a federal time limit, state law
typically governs. See Pace v. DiGuglielmo, 544 U.S. 408, 410
(2005). “[J]ust because [an] application is pending, does not
mean that it was properly filed. For example, if an application
is erroneously accepted by the clerk without the requisite
filing fee, it will be pending, but not properly filed.”
Christian v. Baskerville, 232 F. Supp.2d 605, 607 (E.D. Va.),
cert. of appealability denied, 47 F. App’x 200 (4th Cir. 2001)
(unpublished) (“[W]e deny a certificate of appealability and
dismiss the appeal on the reasoning of the district court.”).
Here, the Supreme Court of Virginia found that Escalante’s
petition failed to include a list of assignments of error “in
the lower court proceedings upon which the petitioner intends to
rely.” J.A. 50. At the time Escalante filed his petition for
appeal, the relevant provisions of Va. Sup. Ct. R. 5:17(c) were
as follows:
(c) Form and Content. Under a separate heading
entitled “Assignments of Error,” the petition shall
list the specific errors in the rulings below upon
which the appellant intends to rely. Only errors
assigned in the petition for appeal will be noticed by
this Court. Where appeal is taken from a judgment of
the Court of Appeals, only assignments of error
relating to questions presented in, or to actions
taken by, the Court of Appeals may be included in the
petition for appeal to this Court. An assignment of
error, which merely states that the judgment or award
is contrary to the law and the evidence, is not
9
sufficient. If the petition for appeal does not
contain assignments of error, the appeal will be
dismissed.
A petition for appeal that does not contain the appropriate
assignments of errors required by Va. Sup. Ct. R. 5:17(c) “does
not meet the required form of the petition for appeal,” and thus
does not qualify for statutory tolling. Christian, 232 F.
Supp.2d at 607.
In concluding that Escalante’s petition for habeas corpus
was not timely filed, the district court explicitly relied on
Christian. Escalante attempts to distinguish the instant case
from Christian, noting that the district court in Christian
reviewed the petitioner’s state habeas corpus records directly.
Escalante tries to create a dispute as to whether he complied
with Va. Sup. Ct. R. 5:17(c). Yet in his supplemental pleading
filed on August 22, 2010, Escalante concedes that he “apparently
did not [file his petition] in compliance and perfection of the
court rules that the petitioner did not know, as he was
proceeding pro se.” J.A. 92.
In Christian, the United States District Court for the
Eastern District of Virginia held that assignment of error
failures can prevent a petition for appeal from being “properly
filed” under Va. Sup. Ct. R. 5:17(c). 232 F. Supp.2d at 607.
We conclude that the facts and circumstances in Christian are
10
similar to those presented in this case. There, as in this
case, the petitioner failed to include the assignments of error
required by Va. Sup. Ct. R. 5:17(c) in his petition for appeal
from the state habeas court’s denial of habeas relief. Id. at
607. In Christian, the court concluded that the “petitioner
failed to meet the form requirement for properly filing an
appeal in the Supreme Court of Virginia,” and thus had not
properly filed pursuant to 28 U.S.C. § 2244(d). Id. The court
in Christian held that the petitioner was not entitled to any
tolling for the period between the date of the state habeas
court’s denial of the petition and dismissal of his petition by
the Supreme Court of Virginia. Id.C.
“Where a state procedural rule is both adequate and
independent, it will bar consideration of the merits of claims
on habeas review unless the petitioner demonstrates cause for
the default and prejudice resulting there from or that a failure
to consider the claims will result in a fundamental miscarriage
of justice.” McNeill v. Polk, 476 F.3d 206, 211 (4th Cir. 2007)
(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)); see also
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (“If a state
court clearly and expressly bases its dismissal of a habeas
11
petitioner’s claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground for
the dismissal, the habeas petitioner has procedurally defaulted
his federal habeas claim.” (citation omitted)). “[A] state
court need not fear reaching the merits of a federal claim in an
alternative holding so long as it explicitly invokes a state
procedural rule as a separate basis for its decision.” Harris
v. Reed, 489 U.S. 255, 264 n.10 (1989) (citation and emphasis
omitted).
Va. Sup. Ct. R. 5:17(c) unambiguously directs that a
petition for appeal “list the specific errors in the rulings
below upon which the appellant intends to rely” and explains
that “[o]nly errors assigned in the petition for appeal will be
noticed by” the court. It is undisputed that the Supreme Court
of Virginia did not adjudicate Escalante’s federal
constitutional claims on the merits. There also is no dispute
that the Supreme Court of Virginia’s dismissal of Escalante’s
state habeas application was based exclusively on Va. Sup. Ct.
R. 5:17, which sets forth a state rule acknowledged to be an
adequate and independent state law ground for decision. In such
cases, federal courts are barred from reviewing the
constitutional merits of the claims dismissed, absent a showing
12
of cause and prejudice. See Coleman, 501 U.S. at 750; Yeatts,
166 F.3d at 260.
Escalante cannot assert that Va. Sup. Ct. R. 5:17(c) is not
firmly established nor regularly applied by the Supreme Court of
Virginia. See Yeatts, 166 F.3d at 264 (noting that “[t]he
Supreme Court of Virginia had applied [Rule 5:17(c)] numerous
times prior to the date [petitioner] filed his petition for
appeal to refuse to address issues that were not preserved
properly with specific assignments of error.”). Nevertheless,
Escalante maintains that, even if the state court petition did
not comply with Va. Sup. Ct. R. 5:17(c), it was still error for
the district court to deem the federal petition untimely.
Specifically, Escalante argues that failure to comply with
Rule 5:17(c) does not render the petition invalid in its
entirety, it simply precludes review of certain claims and does
not render the matter not “properly filed.” In support of his
challenge, Escalante cites Yeatts, 166 F.3d 255; Mueller v.
Angelone, 181 F.3d 557 (4th Cir. 1999); and Hedrick v. True, 443
F.3d 342 (4th Cir. 2006). In each of those cases, unlike
Escalante’s petition, the Supreme Court of Virginia applied Va.
Sup. Ct. R. 5:17(c) to bar certain assignments of error from
appellate review; however, there were additional assignments of
error made in compliance with Va. Sup. Ct. R. 5:17(c).
13
We recognize that under Va. Sup. Ct. R. 5:17(c), a
deficient assignment of error will prevent consideration of such
an argument on appeal but does not preclude the consideration of
valid assignments. However, as in this case, where the petition
for appeal fails to assign any error in compliance with Va. Sup.
Ct. R. 5:17(c), it compels the dismissal of the appeal in its
entirety. As we stated in Mueller, “Virginia Supreme Court’s
conclusion that these claims were defaulted bars them from our
consideration, absent cause and prejudice or a miscarriage of
justice, so long as Rule 5:17(c) is an independent and adequate
state grounds for decision.” 181 F.3d at 582 (citation
omitted). 2
2
In Yeatts, the Supreme Court of Virginia applied Va. Sup.
Ct. R. 5:17(c) to prevent consideration of the petitioner’s
argument alleging ineffective assistance of counsel, where his
assignment of error addressed the propriety of the trial court’s
failure to order an evidentiary hearing in habeas corpus review.
166 F.3d at 262-63. We reiterated the familiar standard that a
state procedural rule is “adequate” if it is firmly established
and regularly or consistently applied by the state court and
independent if it does not depend on a federal constitutional
ruling. Id. at 263–64. Similarly, in Mueller, the Supreme
Court of Virginia, applying Rule 5:17(c), “dismissed . . .
scores of claims strung together, without support or
explanation, in the two footnotes on the final two pages.” 181
F.3d 583. In Mueller, we concluded that “the assignments of
error asserted there in were defaulted not because the petition
was too long, but because they lacked either the specificity or
the support the rule explicitly and unambiguously demands, or
both.” Id. And in Hedrick, the Supreme Court of Virginia
(Continued)
14
D.
Although Escalante acknowledges that the district court can
raise a timeliness issue sua sponte, he maintains that it is
still an affirmative defense. He contends that the petition was
dismissed summarily under Rule 4 of the Rules Governing Section
2254 Cases, without a response ever being requested or received
from the Commonwealth. He asserts that lack of timeliness under
§ 2244(d) is an affirmative defense that would ordinarily have
to be raised by the Commonwealth in its response, and that, as a
pro se petitioner in the court below, his response is entitled
to a liberal construction.
The district court, in reviewing a petition for writ of
habeas corpus, has the authority to raise timeliness issues on
its own, regardless of either party’s actions, because
“[a]ctions brought pursuant to § 2254 implicate considerations
of comity, federalism, and judicial efficiency not present in
dismissed the petitioner’s claims concerning an alleged failure
by the government to disclose exculpatory information, and we
affirmed the district court’s dismissal because the “default
rule applied was . . . adequate.” 443 F.3d at 363 (quotation
marks omitted). Accordingly, these cases do not help Escalante.
15
ordinary civil actions.” Hill v. Braxton, 277 F.3d 701, 705
(4th Cir. 2002).
Allowing the district court to consider sua sponte the
timeliness of a § 2254 petition is consistent with Rule 4 of the
Rules Governing Section 2254 Cases. Id. Rule 4 addresses the
district court’s sua sponte consideration of a defense by
stating that:
If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify
the petitioner. If the petition is not dismissed, the
judge must order the respondent to file an answer,
motion, or other response within a fixed time, or to
take other action the judge may order.
Rule 4, 28 U.S.C. foll. § 2254.
In Hill, we held that “justice required the district court
to give the pro se § 2254 petitioner prior notice and an
opportunity to respond.” Id. at 707. In Hill, we sought to
make certain that a district court does not prematurely dismiss
a § 2254 petition as untimely before the petitioner has an
adequate opportunity to present facts “not apparent to the court
that militate against the application of the limitations bar.”
Id. Thus, Hill requires only that the petitioner be given an
opportunity to provide a basis, if any, to show that the
petition was filed within the time limitation period.
16
Here, the district court provided Escalante with an
opportunity to make his case. Escalante filed his pro se
petition for a writ of habeas corpus using a standard government
form that asks for information “explain[ing] why the one-year
statute of limitations as contained in 28 U.S.C. § 2244(d) does
not bar [the] petition.” J.A. 16. In his response, Escalante
wrote, “excluding the time where a petition or appeal [was]
pending, this petition is being filed in time.” J.A. 16.
Unlike the pro se defendant in Hill, Escalante was aware and on
notice that he should provide information regarding the
timeliness of his petition. After reviewing Escalante’s
petition for a writ of habeas corpus and raising the issue of
untimeliness, the district court gave Escalante the opportunity
to submit evidence to demonstrate the timeliness of his
petition. In his response to the magistrate judge’s request for
“any additional argument or evidence petitioner desires to
present concerning the timeliness of his §2554 petition under
§2244(d),” Escalante did not put forward any additional
evidence. J.A. 84. He simply provided the following response:
“While the Petitioner did list[] assignments of errors as
required by the Court and did mention the trial court’s errors
through the Petition, apparently [he] did not do so in
compliance and perfection of the Court Rules.” J.A. 92.
17
Escalante’s admission that he failed to conform his petition to
the requirements of Virginia Supreme Court Rule 5:17(c)
supported the district court’s conclusion that Escalante’s
petition was not “properly filed” and thus properly dismissed.
III.
In sum, the Supreme Court of Virginia dismissed Escalante’s
petition because it was not perfected in the manner provided by
Va. Sup. Ct. R. 5:17(c) and was therefore not properly filed.
Accordingly, we conclude that the district court properly
dismissed Escalante’s habeas corpus petition as untimely.
AFFIRMED
18
DAVIS, Circuit Judge, dissenting:
The majority affirms the dismissal of Escalante’s petition
under 28 U.S.C. § 2254 for two alternative reasons: because the
federal petition was untimely, and because Escalante
procedurally defaulted his claims. With respect, I dissent.
First, the majority opinion too easily approves of the
district court’s hasty dismissal of this case as untimely (a
mere fifteen days after it was filed) on a record that lacks
evidence showing that Escalante actually failed to include
“assignments of error” in his state court petition for appeal,
as required by Virginia Supreme Court Rule 5:17(c). Rule 4 of
the Rules Governing Section 2254 Cases requires a district court
to dismiss a petition only if it “plainly appears . . . that the
petitioner is not entitled to relief.” Rule 4, 28 U.S.C. foll. §
2254 (emphasis added). Moreover, we “interpret the efforts of a
pro se petitioner liberally.” Fields v. Atty Gen. State of Md.,
956 F.2d 1290, 1298 n.20 (4th Cir. 1992).
In Escalante’s response to the district court’s sua sponte
invocation of the Commonwealth’s timeliness defense, he asserted
that he “did list[] assignments of errors as required by the
Court and did mention the trial court’s errors through the
Petition,” but that he “apparently did not do so in compliance
and perfection of the Court Rules.” J.A. 92 (emphasis added).
19
Bearing in mind that Escalante’s pro se pleadings are to be
liberally construed, at minimum Escalante’s response raised a
question about the contents of his underlying petition for
appeal. He clearly did not “concede[]” or “admi[t],” Maj. Op. at
10, 18, a complete failure to conform with the requirements of
Rule 5:17(c). Thus, it did not “plainly appear[]” on the record
before the district court that Escalante’s petition for appeal
failed to comply with Rule 5:17(c).
Given that Escalante’s response, liberally construed,
disputed the district court’s perception that he had failed to
comply with Rule 5:17(c), in my view the district court
committed reversible error by failing to require the
Commonwealth to file a response to Escalante’s § 2254 petition
that (presumably) would have included the disputed petition for
appeal. The majority impliedly concludes that Escalante, rather
than the Commonwealth, had the burden to produce the petition
for appeal to support the Commonwealth’s timeliness defense. The
majority’s approach conflicts with the Rules Governing § 2254
Cases, which “recognize that the state is much better able to
access the state court record.” Griffin v. Rogers, 308 F.3d 647,
653 (6th Cir. 2002); see Rule 5(c)-(d), 28 U.S.C. foll. § 2254
(requiring a § 2254 respondent to include petitioner’s appellate
briefs, state court appellate decisions, relevant state court
20
transcripts, and additional transcripts or narrative summaries
of state court proceedings upon the court’s order.). As the
Eleventh Circuit has explained, “The obligation to come forward
with the state court record is squarely upon the respondent, not
the petitioner.” Bundy v. Wainwright, 808 F.2d 1410, 1415 (11th
Cir. 1987).
In short, the ambiguity of Escalante’s response required
the district court to review the state court record, and the
burden to produce that record was on the Commonwealth. Because
the district court did not order the Commonwealth to respond to
Escalante’s petition, I would vacate the judgment and remand for
further proceedings.
Second, there is another reason it did not “plainly
appear[]” from Escalante’s federal habeas petition, see Rule 4,
28 U.S.C. foll. § 2254, that Escalante’s federal habeas petition
was untimely. The one-year period of limitations under §
2244(d)(1) is tolled while “a properly filed application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending.” 28 U.S.C. §
2244(d)(2). This “includes the period between (1) a lower
court’s adverse determination, and (2) the prisoner’s filing of
a notice of appeal, provided that the filing of the notice of
appeal is timely under state law.” Evans v. Chavis, 546 U.S.
21189, 191 (2006) (citing Carey v. Saffold, 536 U.S. 214 (2002)).
If a notice of appeal is timely filed, then the tolling period
continues until “final disposition by the highest state court
(whether decision on the merits, denial of certiorari, or
expiration of the period of time to seek further appellate
review).” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999).
Neither this court nor the Supreme Court has addressed
whether a state application for appeal (as opposed to an
original state habeas petition) is an “application” that must be
“properly filed” under 28 U.S.C. § 2244(d)(2). ∗ That is, there is
an open legal question as to whether a prisoner’s filing of a
timely but somehow deficient notice of appeal continues to toll
the federal limitations period until the state appellate court
∗
In Allen v. Mitchell, 276 F.3d 183 (4th Cir. 2001), we
mentioned that the federal limitations period is tolled while a
state habeas petition is on appeal “if the appellate petition
was ‘properly filed.’” Id. at 185. To the extent that implies
that failing to “properly” file a timely notice of appeal
precludes tolling during an appeal period, the statement is
dicta. The issue in Allen was whether the limitations period was
tolled between the expiration of the state appeal deadline and
the subsequent filing of an untimely appellate petition. Here,
unlike in Allen (and unlike in Pace v. Diguglielmo, 544 U.S. 408(2005)), the question is not whether Escalante’s notice of
appeal was timely filed (it clearly was), but rather whether his
subsequent “petition for appeal” was “properly” filed, insofar
as Virginia practice requires that such a document contain
“assignments of error.”
22
denies review or otherwise rejects the prisoner’s appeal. This
open legal question could be dispositive as to the timeliness of
Escalante’s federal § 2254 petition. The AEDPA one-year statute
of limitations began running on March 18, 2009, when Escalante’s
conviction became final. 28 U.S.C. § 2244(d)(1)(A). The
limitations period was tolled on September 14, 2009, when
Escalante filed his state habeas petition in the Pittsylvania
County Circuit Court, at which point 180 days had passed. The
Pittsylvania County Circuit Court denied and dismissed
Escalante’s state habeas petition on December 15, 2009. The
Virginia Supreme Court “refused” his petition for appeal because
it was not “perfected,” on July 27, 2010. J.A. 50.
The district court assumed, and the majority apparently
agrees, that Escalante’s petition for appeal was an
“application” that had to be “properly filed,” and therefore if
the petition for appeal was improperly filed the statutory
tolling period ended, retroactively, as of the date the
Pittsylvania County Circuit Court dismissed his state habeas
petition. We need not and should not decide that question at
this stage, however. Because the district court declined to
order the Commonwealth to respond to Escalante’s federal
petition, the court could only dismiss the petition if it
“plainly appear[ed] from the petition” that it was untimely.
23
Rule 4, 28 U.S.C. foll. § 2254. Separate from the question
whether in fact Escalante failed to comply with Virginia Supreme
Court Rule 5:17(c), see supra, this non-frivolous legal question
precludes a finding that Escalante’s federal petition plainly
was untimely.
The majority neither acknowledges that open legal question
nor explains why it is electing to follow Allen’s dicta. Nor
does it explain, even if under federal law, despite the timely
filing of a notice of appeal, a state petition for appeal must
be “properly” (not just timely) filed, (1) why, under Virginia
practice, a petition for appeal is an “application” that must be
“properly filed”; (2) why any and all defects in a pro se
litigant’s composition of his “assignments of error” under
Virginia practice defeat a finding that the petition was
“properly filed” as a matter of federal law; or (3) why
“perfecting an appeal” under Virginia law, as the district court
put it, is invariably necessary to “properly file” an
“application” under § 2244(d)(2). Instead of addressing these
questions, the majority relies on Christian v. Baskerville, 232
F. Supp. 2d 605 (E.D. Va. 2001), which in turn relied on dicta
from Rodgers v. Angelone, 113 F. Supp. 2d 922 (E.D. Va. 2000),
aff’d, 5 F. App’x. 335, 2000 WL 265336 (4th Cir. 2001), to
conclude that Escalante is not entitled to statutory tolling
24
from the time the circuit court denied his state writ of habeas
corpus until the time the Virginia Supreme Court refused his
petition for appeal for failing to include adequate assignments
of error in his petition for appeal. I do not believe the
reasoning of Christian, or the district court’s or the
majority’s reliance thereon, supports the conclusion that
Escalante’s federal petition plainly was untimely, permitting
its summary dismissal.
Finally, for similar reasons, the district court erred in
concluding that, even if Escalante’s federal petition was
timely, his failure to compose sufficient “assignments of error”
resulted in procedural default of his claims, see Escalante v.
Watson, 2010 WL 3489041, *1, n.6 (W.D. Va. Aug. 31, 2010). The
district court could only excuse the Commonwealth from
responding to Escalante’s petition if it “plainly appear[ed]”
under Rule 4 that Escalante was not entitled to relief, either
because the federal petition was untimely or because Escalante’s
claims had been procedurally defaulted. The factual predicate
for both of the district court’s conclusions was its finding
that Escalante had failed to comply with Virginia Supreme Court
Rule 5:17(c). For the reasons discussed above, such was not
plainly apparent from the record. Therefore, the district court
25
should have required the Commonwealth to file a response
addressing both grounds.
For these reasons, I am unable to join the majority
opinion. I would vacate the judgment and remand this action for
further proceedings in the district court.
26