Kurt Smith v. Joseph Meko ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0528n.06
No. 16-5630 FILED
Sep 13, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KURT ROBERT SMITH, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
JOSEPH P. MEKO, Warden, Little Sandy ) DISTRICT OF KENTUCKY
Correctional Complex, )
)
Respondent-Appellee. )
BEFORE: KEITH, BATCHELDER, and GRIFFIN, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Kurt Smith was serving a life sentence in
state prison for a crime committed in Kentucky. While serving his sentence, he pled guilty to
two additional felonies he committed by throwing a rock at a prison guard during a prison riot.
He asserts that before he pled guilty, his counsel told him that the additional felonies would not
affect his parole eligibility date. But Kentucky law is directly to the contrary. On this basis, he
petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed
the claim as time-barred under the one-year statute of limitations established by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). For
the following reasons, we affirm.
I
The underlying facts are largely undisputed. Kurt Smith was serving a life sentence for
murder, was detained in a Kentucky prison, and was eligible for parole as early as March 2021.
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On August 21, 2009, a riot broke out in the prison, during which an officer was hit by a rock.
Evidence indicated that Smith threw the rock, and the Kentucky grand jury indicted him on two
felony offenses for assault in the third degree and riot in the first degree. The State offered a plea
deal in which Smith would receive two five-year sentences that would run concurrently with his
life sentence, and Smith entered an Alford plea. At the plea colloquy, the state trial court advised
Smith: “It’s a concurrent sentence but it does add problems to you, like . . . it may affect parole
eligibility, it may affect a number of things. Are you familiar with all the things it can affect you
with?” Smith responded, “Yes, I am.”
On September 26, 2011, Smith received a “Reclassification Custody Form” from the
Kentucky Department of Corrections (“DOC”) indicating that his parole eligibility date was
March 21, 2023. He wrote to the DOC on October 10, 2011, requesting that the parole date be
changed to 2021 and stating that he had received no new consecutive prison time. In this letter,
he also referenced a “time sheet”1 that he had received after his Alford plea, which indicated a
2021 parole date. On October 11, 2011, the DOC sent him a communication maintaining that
the 2023 date was correct; this communication quoted a portion of the Kentucky regulation
addressing the effect that a conviction for an offense committed while incarcerated has on an
inmate’s parole eligibility date. On October 18, 2011, he appealed to the DOC, stating that the
riot felonies were “improperly construed as consecutive sentences, resulting in additional two-
year period before parole eligibility.” The DOC responded on November 14, 2011, with a letter
addressing the same Kentucky provisions as the October 10 letter. The November 14 letter read,
in its entirety:
1
This time sheet does not appear to be in the record on appeal.
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Dear Mr. Smith,
This correspondence is in reference to your recent appeal under the
Administrative Review Process according to Corrections Policies and Procedures
17.4.
Pursuant to 501 KAR 1:030 Section 3 (4), “Parole review for crimes committed
while in an institution or while on escape. If an inmate commits a crime while
confined in an institution or while on an escape and receives a concurrent or
consecutive sentence for this crime, eligibility time towards parole consideration
on the latter sentence shall not begin to accrue until he becomes eligible for parole
on his original sentence. This shall include a life sentence.”
Also, pursuant to section 3 (4)(a), “Except as provided by paragraph (b) of this
subsection, in determining parole eligibility for an inmate who receives a sentence
for an escape, a sentence for a crime committed while in the institution, or on a
sentence for a crime committed while on an escape, the total parole eligibility
shall be calculated by adding the following, regardless of whether the sentences
are ordered to run concurrently or consecutively:
1. The amount of time to be served for parole eligibility on the original
sentence;
3. If the inmate has an additional sentence for a crime ·committed while in
the institution, the amount of time to be served for parole eligibility on the
additional sentence for the crime committed while in the institution.”
Your parole eligibility date of March 2023 is accurate.
I’m sorry my response could not be more favorable.
Sincerely,
Ashley Sullivan, Administrator
Offender Information Services
The October 11 and November 14 letters contain substantially the same information. The
November 14 letter directly quotes 501 Kentucky Administrative Regulations 1:030 § 3(4)(a)(3),
as demonstrated above. The October 11 letter does not directly quote § 3(4)(a)(3), but, after
quoting § 3(4)(a)(1), it includes the following text that explains exactly the same concept:
In other words, if you have not yet met the parole board and you receive
additional sentences for crimes committed with the institution, the parole date will
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Smith v. Meko
be adjusted with each time that you receive an additional charge while
incarcerated. It doesn’t matter if they are concurrent or not. See below.
2002-03-01 Date Received
+ 020-00-00 (20 years for Life Sentence)
- 000-11-00 [Jail Credit] (340 days)
=================
021-03-21
+ 0001-00-00 [AB/001] (20% of 5 years)
==================
2022-03-21
+ 0001-00-00 [AB/002] (20% of 5 years)
==================
2023-03-21
On October 30, 2012, the Kentucky Circuit Court filed Smith’s motion for relief from
judgment, which he signed and dated on October 23, 2012. In this collateral attack, he alleged
that his counsel for the riot-related indictments was ineffective. The state courts denied the
claim. The Kentucky Court of Appeals explained:
[In light of the relevant regulation,] Smith’s parole eligibility for his most recent
sentence does not begin to accrue until he becomes eligible for parole on his
original sentence. Smith maintains that his counsel failed to advise him of the
extended parole eligibility date, and had he been so advised, he would not have
pled guilty and would have insisted on going to trial.
The trial court found this claim to be meritless, noting that the Department of
Corrections calculates parole eligibility according to 501 KAR 1:030 regardless of
whether the sentences are ordered to run concurrently or consecutively, and
Smith’s counsel could not negotiate a plea contrary to the administrative
regulation. The court found that Smith’s counsel competently negotiated a deal
for concurrent sentencing, thus placing Smith in the best possible position for
parole consideration.
Further, during the guilty plea colloquy, the trial court advised Smith that the
sentence imposed would run concurrently and may affect parole eligibility. The
court asked Smith if he was familiar with the possible effects, to which Smith
responded yes. Smith requested no clarification. We fail to appreciate Smith’s
present claim that his counsel was deficient for failing to clarify something Smith
himself stated he understood.
The Kentucky Supreme Court entered an order denying discretionary review on August
12, 2015, and Smith filed a 28 U.S.C. § 2254 petition on August 26, 2015. Upon the
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recommendation of a magistrate judge, the district court dismissed the § 2254 action as untimely
pursuant to 28 U.S.C. § 2244. Smith argued that the proper trigger for the limitations period
should be November 14, 2011, the day he received the result of the administrative appeal. The
district court found, however, that Smith knew or should have known about his counsel’s
ineffective assistance as of the October 18, 2011 letter from the DOC. The district court also
held that his § 2254 claim lacked merit because the Supreme Court has never squarely addressed
the facts presented in Smith’s ineffective-assistance-of-counsel claim, and, in any event, that he
could not demonstrate prejudice because no reasonable person would go to trial in Smith’s
circumstances. The district court declined to grant a COA, but we directed the clerk “to set a
briefing schedule for the timeliness and merits of Smith’s claim that his counsel was ineffective
for failing to advise him about the effect of his Alford plea on parole eligibility.”
II
“We review de novo a district court’s dismissal of a habeas petition as time-barred under
28 U.S.C. § 2244.” Board v. Bradshaw, 805 F.3d 769, 771 (6th Cir. 2015). AEDPA has a one-
year statute of limitations for petitioners seeking to challenge state court judgments in federal
habeas court. 28 U.S.C. § 2244(d)(1). The statute contains several triggering mechanisms,
including “the date on which the factual predicate of the claim or claims present could have been
discovered through the exercise of due diligence.” Id. § 2244(d)(1)(D). We look at “when a
duly diligent person in petitioner’s circumstances would have discovered” the factual predicate
for his claim. See DiCenzi v. Rose, 452 F.3d 465, 470 (6th Cir. 2006) (quoting Wims v. United
States, 225 F.3d 186, 190 (2d Cir. 2000)). The operative question in such an inquiry is when the
person was aware of the vital facts for his claim, not when he understood the legal significance
of those facts. See Webb v. United States, 679 F. App’x 443, 448 (6th Cir. 2017) (“[A]
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petitioner’s ignorance of a legal claim does not toll the § 2255 deadline.”) (citing Ford v.
Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.
2000) (amended Jan. 22, 2001); Brooks v. McKee, 307 F. Supp. 2d 902, 905-06 (E.D. Mich.
2004); Redmond v. Jackson, 295 F. Supp. 2d 767, 771 (E.D. Mich. 2003)).
A
“The one-year period of limitations is tolled during the time that a ‘properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending.’” Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 459 (6th
Cir. 2012) (quoting 28 U.S.C. § 2244(d)(2)). The limitations period is not tolled, however, if the
state proceeding is filed after the one-year limitations period expires, as it was here. Id. at 461–
62.
Smith rests his habeas claim on an assertion that his counsel failed to advise him that
pleading guilty to two additional felonies while incarcerated would affect his parole eligibility
date. Assuming that his counsel in fact failed to so advise him, the relevant facts are:
(1) counsel’s pre-plea failure in or around July 2010, (2) the Kentucky trial court’s warning at
the plea hearing in August 2010, (3) Smith’s notification in September 2011 that his parole
eligibility date had actually changed, and (4) the confirmation from the DOC in October 2011
that the state regulation dictated the prolonged parole eligibility date. On October 18, 2011,
Smith signed and dated his appeal of the DOC’s October 2011 confirmation letter. Even if we
assume that October 18, 2011 was the first time that he would have been aware of the factual
basis for his ineffective-assistance claim, he would have needed to file his petition within one
year, or by October 17, 2012.
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He did not meet this deadline. Smith dated his state collateral attack on October 23,
2012, and the Kentucky Circuit Court filed it as of October 30, 2012. As a result, his petition
was untimely and does not toll AEDPA’s statute of limitations.
B
Smith contends that the district court erred by using the October 2011 date as the trigger
for the statute of limitations, and that it should have used November 14, 2011, when the
administrative appeal process concluded. If this were the proper date, his petition would be
timely, because (1) 351 days elapsed between November 14, 2011, and October 30, 2012, when
he filed his state petition and (2) 14 days elapsed between the conclusion of the state collateral
proceedings on August 12, 2015, and August 26, 2015, the day Smith filed his § 2254 petition.
But November 14, 2011, is not the proper date, however, because § 2244’s statute of limitations
is triggered by the date when “the factual predicate . . . could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). In September 2011, Smith received a
communication that his eligibility date was two years later than he expected it to be, and in
October 2011, he received a letter from the DOC explaining why the date differed from his
expectation.2 At that point, Smith knew or should have known that the advice he allegedly
received from his counsel was incorrect.
Smith attempts to sidestep this conclusion with two arguments. He claims that his pursuit
of an appeal through the DOC’s administrative process, which concluded on November 14,
2011, either provides the relevant factual predicate to trigger the one-year statute of limitations
2
We need not resolve whether one or the other of these dates is the actual triggering date, because both
occurred more than one year before Smith filed his habeas petition, taking into account the time his state
proceedings tolled § 2244’s statute of limitations. We do not doubt that he acted diligently by pursuing his remedies
before the DOC in either September 2011 or October 2011, because he was seeking to clarify the parole date with
the DOC. But once he received the October 18, 2011 letter, he had knowledge that something was wrong with the
advice he allegedly received from his counsel.
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or tolls it. And he states that the “fact” of his attorney’s ineffective assistance was not
conclusively established until the administrative appeal confirmed his parole eligibility date was
in 2023. If he were correct, his petition would be timely, but neither argument is persuasive.
First, Smith claims that Kentucky law required him to exhaust his administrative
remedies before he could file the state post-conviction motion and asks us to toll the limitations
period accordingly. See Ky. Rev. Stat. 454.415(1)(b) (“No action shall be brought by or on
behalf of an inmate, with respect to . . . [c]hallenges to a sentence calculation . . . until
administrative remedies as set forth in the policies and procedures of the Department of
Corrections . . . are exhausted.”) (emphasis added). But, as the State demonstrates, the
exhaustion requirement pursuant to Kentucky Revised Statute § 454.414 applies to challenges of
a sentence calculation, among other things. It does not apply to an ineffective assistance claim,
which should be brought in a motion to vacate, set aside, or correct a sentence. See Ky. R. Crim.
P. 11.42; see also Woolbright v. Crews, 791 F.3d 628, 634-35 (6th Cir. 2015) (describing the
“strong Kentucky preference for [ineffective assistance] claims to be presented” in Rule 11.42
motions). Collateral attacks against a sentence may be brought “at any time . . . directly by
motion in the court that imposed the sentence.” Rule 11.42. Moreover, Smith cites no case in
which a state court has required exhaustion before addressing an ineffective-assistance claim.
Consequently, the time Smith took to pursue the administrative appeal does not affect the
calculation of the statute of limitations.
Second, citing Johnson v. United States, 544 U.S. 295, 309–10 (2005), he argues that the
resolution of the administrative appeal was “the first time it was reasonable to attribute
knowledge of the changed [parole] date” to him. In Johnson, a § 2255 habeas petitioner argued
that a state court’s vacatur of a state conviction used to enhance his federal sentence was a “fact,”
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the discovery of which triggered § 2255’s limitations period.3 Id. at 309. The Supreme Court
held that the day on which the petitioner received notice that the state court vacated the prior
conviction was the day on which the one-year period began to run, so long as the petitioner had
pursued the vacatur with due diligence. Id. Johnson is not broad enough to cover Smith’s claim.
The state vacatur order there was a necessary prerequisite to Johnson’s bringing a § 2255 petition
challenging his enhanced sentence. By contrast, the November 2011 result of the administrative
proceeding was not necessary for Smith to bring an ineffective-assistance claim in a state
collateral proceeding and later a federal habeas action. Although Smith may have been diligent
in his efforts to determine why his parole date had changed, the result of the administrative
proceeding did nothing to establish the facts underlying his ineffective-assistance claim. As we
explained above, the events of September and October 2011 established the necessary factual
predicate for Smith’s ineffective-assistance claim.
Smith also cites to a number of out-of-circuit cases. All deal with a direct challenge to an
administrative proceeding that affected the prisoner’s sentence and are therefore distinguishable.
Here, the complaint is not that the DOC’s parole eligibility calculation was wrong. Such a claim
would need to be exhausted administratively under Kentucky law. The complaint is that Smith’s
counsel provided ineffective assistance in an earlier criminal proceeding—a claim that need not
be administratively exhausted. Reviewing the holding from one of the cases he cites
demonstrates the futility of his argument:
Therefore, under . . . Shelby [v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004)],
when a habeas petitioner challenges an administrative decision affecting the ‘fact
or duration of his confinement,’ AEDPA’s one-year statute of limitations runs
from when the ‘factual predicate’ of the habeas claims ‘could have been
discovered through the exercise of due diligence.’ § 2244(d)(1)(D). As a general
3
Section 2255(f)(4) provides a similar triggering mechanism to § 2244—the date on which the facts
underlying the petitioner’s “claim or claims presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. §§ 2244(d)(1)(D), 2255(f)(4).
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rule, the state agency’s denial of an administrative appeal is the ‘factual predicate’
for such habeas claims.
Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012) (emphases added) (footnote and some
internal citations omitted). The Ninth Circuit’s holding assumes that the petitioner is challenging
an administrative decision, and that the administrative decision is the factual predicate for the
habeas claim. In such a situation, Johnson may apply. But that is not the situation here. Smith
challenges his conviction based on ineffective assistance, and the factual predicate for that claim
is that his counsel erred. The discovery of his extended parole eligibility date, which changed as
a matter of Kentucky law pursuant to the DOC regulations, was the only fact he needed to
discover in order to have an ineffective-assistance claim. Choosing to seek clarification of the
parole eligibility date through the DOC appeals process was by no means a superfluous or
unwise act, but it does not further toll AEDPA’s statute of limitations.
III
In light of our conclusion that the district court properly dismissed Smith’s habeas
petition as time-barred, we need not reach the merits of his ineffective-assistance claim.
Consequently, and for the foregoing reasons, we AFFIRM the judgment of the district court.
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