Barnard v. Conley , 36 F. App'x 813 ( 2002 )

PER CURIAM.

Barnard, a pro-se Kentucky prisoner, appeals a district court decision denying his petition for a writ of habeas corpus. Because Barnard’s claims are time-barred, we affirm the denial of the writ.

I

On April 9, 1985, Ricky L. Barnard was indicted in state court on a charge of murder for the death of his wife, Lori Ann Barnard. The prosecution filed a notice of intent to seek the death penalty on the grounds that Barnard had committed the offense for monetary gain. This motion was denied.

Barnard was convicted of murder, and the jury recommended a sentence of life imprisonment. Barnard was subsequently sentenced to life in prison.

Barnard was granted leave to file an appeal in forma pauperis, and his counsel filed a notice of appeal. On the advice of his appellate counsel, Mr. Niehaus, Barnard filed a motion to dismiss his appeal, accompanied by a signed affidavit from Barnard, stating that he had decided to voluntarily dismiss his appeal, after discussion with his attorney. The Kentucky Supreme Court granted Barnard’s motion to dismiss the appeal, and dismissed the appeal with prejudice.

Ten years later, on April 24, 1997, Barnard filed a first petition for a writ of habeas corpus, alleging that his conviction violated the Fourth and Sixth Amendments of the United States Constitution. This petition came on the last date possible for Barnard: one year after the date of effect of the Antiterrorism and Effective Death Penalty Act (AEDPA), which imposed a 1-year statute of limitations on the filing of habeas petitions for prisoners. 28 U.S.C. § 2244(d)(1)(A).

On August 11, 1997, this petition was dismissed, without prejudice, on the grounds that Barnard had failed to exhaust his state remedies.

During the pendency of this petition, on June 26, 1997, Barnard filed a motion to reinstate his direct appeal in the Kentucky Supreme Court. He claimed that his appellate counsel had given him erroneous advice about his possibility of success on appeal. In support of his claims, Barnard filed a memorandum in which he claimed that he had opposed dismissing his appeal, but had been persuaded by his attorney to voluntarily dismiss his appeal. He also presented an unsigned but notarized copy of the affidavit that accompanied his motion to dismiss his appeal, and argued that the affidavit had been notarized before he signed, rendering it ineffective.

On September 24, 1997, the Kentucky Supreme Court denied petitioner’s motion to reinstate his appeal. On November 14, 1997, Barnard’s motion for leave to file an out-of-time motion to reconsider the order was denied.

On May 21, 1998, Barnard again filed a petition for a writ of habeas corpus in federal district court. The magistrate judge filed a recommendation that the petition be dismissed with prejudice.

The district court approved the magistrate judge’s findings and determination. Barnard filed a timely notice of appeal and the Sixth Circuit issued a certificate of appealibility.

II

28 U.S.C. § 2244(d)(1) provides:

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 limitation period shall run from ...

(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.

28 U.S.C. § 2244(d)(1)(A). The Sixth Circuit has held that this period of limitations only applies prospectively, so that the end of the limitations period for convictions that became final prior to the passage of AEDPA was April 24, 1997 (one year from the date AEDPA took effect). Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999). According to the State, Barnard’s first federal habeas petition (which he does not mention in his appeal), No. 3:97 CV-P246-H, was filed on April 24, 1997.

Barnard’s petition to reinstate his state appeal tolled the period of limitations under 28 U.S.C. § 2244(d)(2), which provides:

(2) 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 any period of limitation under this subsection.

28 U.S.C. § 2244(d)(2).

On the date of dismissal of Barnard’s state suit to reinstate his direct appeal date, September 24, 1997, the AEDPA period of limitations clock was no longer tolled. Following the decision on the state proceeding, almost eight additional months elapsed before Barnard filed his petition for a writ of habeas corpus for the second time on May 21, 1998. The total time elapsed, for purposes of the period of limitations, between the time AEDPA became effective and the time Barnard’s petition for habeas corpus was filed, is well over one year, even after the tolled time is subtracted. Barnard’s claims are time-barred. Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002).

Ill

Barnard’s claims are time-barred. His conviction became final in 1987, and the period of limitations of one year under AEDPA ran before he filed this petition for a writ of habeas corpus. The denial of Barnard’s petition for writ of habeas corpus is therefore AFFIRMED.