Marsha Burns v. Cindy Prudden ( 2009 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 09-1704
    ___________
    Marsha Sue Burns,                         *
    *
    Appellant,                   *
    * Appeal from the United States
    v.                                  * District Court for the
    * Western District of Missouri.
    Cindy Prudden;                            *
    Jeremiah (Jay) W. Nixon,                  *
    *
    Appellees.                   *
    ___________
    Submitted: November 19, 2009
    Filed: December 16, 2009
    ___________
    Before MELLOY, BEAM and GRUENDER, Circuit Judges.
    ___________
    GRUENDER, Circuit Judge.
    Marsha Burns appeals the dismissal of her petition for a writ of habeas corpus
    as untimely. The district court held that her petition was filed beyond the one-year
    statute of limitations, 28 U.S.C. § 2244(d), and that Burns was not entitled to equitable
    tolling of the limitations period because she could not show an “extraordinary
    circumstance” that prohibited her from timely filing. We find that our intervening
    decision in Riddle v. Kemna, 
    523 F.3d 850
    (8th Cir. 2008) (en banc), overruling a
    previous en banc decision regarding the calculation of the statute of limitations for
    habeas petitions from Missouri, satisfies the “extraordinary circumstance” requirement
    for equitable tolling. We therefore reverse and remand.
    I.    BACKGROUND
    Burns is currently serving a 110-year sentence after her state court conviction
    for statutory sodomy, statutory rape, sexual misconduct and child molestation. She
    appealed to the Missouri Court of Appeals, which denied her appeal on June 18, 2002.
    She then filed a petition for rehearing in that court, which was denied on July 25,
    2002. She did not file a petition for transfer to the Missouri Supreme Court.1 On
    November 18, 2002, Burns initiated post-conviction proceedings in Missouri state
    court. These proceedings concluded on May 3, 2007.
    Under 28 U.S.C. § 2244(d)(1), a federal petition for habeas corpus must be filed
    within one year of “the date on which the judgment became final by the conclusion
    of direct review or the expiration of the time for seeking such review.” However, this
    one-year statute of limitations is tolled during the time “State post-conviction or other
    collateral review” is pending. 28 U.S.C. § 2244(d)(2). At the conclusion of Burns’s
    state post-conviction proceedings, her attorney notified her by letter that he could not
    continue representing her and that her federal petition for habeas corpus had to be
    filed by April 12, 2008. Burns filed her federal habeas petition by placing it in the
    prison mail system on April 8, 2008. See Streu v. Dormire, 
    557 F.3d 960
    , 962 (8th
    Cir. 2009) (noting that the filing date for a prisoner’s habeas position is the date the
    petition is given to prison officials for mailing).
    1
    Missouri does not permit direct appeals from the Missouri Court of Appeals
    to the Missouri Supreme Court. Instead, a litigant seeking review in the Missouri
    Supreme Court must file a petition to transfer the case from the Court of Appeals to
    the Supreme Court. If that petition is granted, the Missouri Supreme Court then hears
    the case. See Mo. Sup. Ct. R. 83.04.
    -2-
    Also on April 8, 2008, this Court issued its decision in Riddle v. Kemna, 
    523 F.3d 850
    (8th Cir. 2008) (en banc). Riddle overruled this court’s previous en banc
    decision in Nichols v. Bowersox, 
    172 F.3d 1068
    (8th Cir. 1999) (en banc). Nichols
    had held that the statute of limitations for habeas petitions did not begin to run until
    90 days after the Missouri Court of Appeals denied an appeal. This 90-day period was
    permitted because Nichols held that in that time period, a petitioner could file a
    petition for a writ of certiorari in the United States Supreme Court, regardless of
    whether the petitioner had filed a petition for transfer to the Missouri Supreme 
    Court. 172 F.3d at 1072
    . Thus, under Nichols, the statute of limitations for Burn’s federal
    habeas petition did not begin to run until 90 days after the denial of her appeal, despite
    her failure to file a petition to transfer. Riddle, however, held that the Missouri Court
    of Appeals was not the “highest court . . . in which a decision could be had,” 28
    U.S.C. § 1257(a), and that the 90-day period to file a petition for a writ of certiorari
    therefore was not available where a defendant had not filed a petition for 
    transfer, 523 F.3d at 855
    . Because Burns did not file a petition for transfer to the Missouri Supreme
    Court, under Riddle, the statute of limitations began running immediately upon the
    conclusion of her direct appeals process, rather than at the end of the 90-day period
    for seeking certiorari, as Nichols had held.
    Based on Riddle, the State filed a motion to dismiss Burns’s habeas petition as
    untimely, which the district court granted. The district court applied Riddle and held
    that Burns’s petition was untimely. But, the district court noted that under Nichols,
    her petition would have been timely. The district court also held that Burns was not
    entitled to equitable tolling of the statute of limitations because she could not establish
    that an “extraordinary circumstance” prevented her from timely filing her petition.
    The district court granted Burns a certificate of appealability on the question of
    whether she was entitled to equitable tolling. Burns then filed this appeal.
    -3-
    II.   DISCUSSION
    We review de novo a district court’s denial of equitable tolling of the statute of
    limitations for a petition for a writ of habeas corpus. Earl v. Fabian, 
    556 F.3d 717
    ,
    722 (8th Cir. 2009). “Generally, a litigant seeking equitable tolling bears the burden
    of establishing two elements: (1) that he has been pursuing his rights diligently, and
    (2) that some extraordinary circumstance stood in his way.” 
    Riddle, 523 F.3d at 857
    (quoting Walker v. Norris, 
    436 F.3d 1026
    , 1032 (8th Cir. 2006)). We begin with the
    “extraordinary circumstance” requirement, since the district court denied Burns
    equitable tolling on that ground. The State offers two arguments for why the Riddle
    decision was not an extraordinary circumstance for Burns. First, the State argues that
    Burns should have foreseen that Nichols was incorrectly decided and, therefore,
    should have filed her petition within the shorter time frame that Riddle eventually
    announced. Second, the State argues that Burns’s petition was untimely even under
    Nichols, because the conclusion of direct review occurred when the Missouri Court
    of Appeals denied her direct appeal, not thirty-seven days later when it denied her
    petition for rehearing. If the period for seeking certiorari began at this earlier date,
    Burns’s petition would be untimely even under Nichols. Circuit precedent forecloses
    both arguments.
    The State’s first argument lacks merit. Riddle itself is directly contrary to the
    State’s position. “The abrogation of an en banc precedent is an extraordinary
    circumstance, external to [the petitioner] and not attributable to him.” 
    Riddle, 523 F.3d at 857
    . In subsequent cases we have repeatedly held that habeas petitioners
    satisfy the “extraordinary circumstance” requirement where Riddle rendered their
    petitions untimely. See, e.g., Shelton v. Purkett, 
    563 F.3d 404
    , 407 (8th Cir. 2009),
    cert. denied, 558 U.S. ---, No. 09-5542 (Nov. 30, 2009); Streu v. Dormire, 
    557 F.3d 960
    , 968 (8th Cir. 2009); Bishop v. Dormire, 
    526 F.3d 382
    , 384-85 (8th Cir. 2008).
    The State cites no authority for the proposition that courts should demand pro se
    -4-
    petitioners to anticipate that a court will overrule established law. We therefore reject
    the State’s first argument.
    In the alternative, the State argues that Riddle’s overruling of Nichols was
    irrelevant to Burns’s petition because her petition was untimely even under Nichols.
    This argument hinges on the State’s claim that the 90-day period for filing a petition
    for a writ of certiorari from the United States Supreme Court began running after the
    denial of Burns’s initial appeal, not after the denial of her petition for rehearing of that
    denial. However, our post-Riddle cases have held that “[u]nder Nichols, . . . the
    statute of limitations would have begun running 90 days after the court of appeals
    denied rehearing.” 
    Streu, 557 F.3d at 968
    (emphasis added); see also 
    Shelton, 563 F.3d at 407
    (“Under Nichols, [Shelton’s] AEDPA one-year statute of limitations clock
    did not begin to run until . . . ninety days after the last entry of judgment [denying
    rehearing] on the direct appeal was issued.” (emphasis added)). Indeed, if the State’s
    argument were correct that the 90-day period begins running from this earlier date, we
    could not have held that the petition in Shelton would have been timely under Nichols.
    
    See 563 F.3d at 407
    .2 United States Supreme Court Rule 13.3 confirms this result:
    “[I]f a petition for rehearing is timely filed in the lower court . . . , the time to file the
    petition for a writ of certiorari . . . runs from the date of the denial of rehearing . . . .”
    Thus, we also find that the State’s second argument is meritless.
    Burns has therefore established the “extraordinary circumstance” requirement
    for equitable tolling. The district court made no findings related to the other
    2
    The difference between the dates when the statute of limitations begins to run
    under Nichols and Riddle will generally be fewer than 90 days. Under Riddle, if a
    defendant does not file a petition for transfer to the Missouri Supreme Court, the end
    of the direct appeals process is the date the Missouri Court of Appeals issues its
    
    mandate. 523 F.3d at 856
    . However, the 90-day period for petitioning for a writ of
    certiorari with the U.S. Supreme Court begins to run, not from the date the mandate
    issued, but from the earlier date of the final order denying the appeal. See 
    Streu, 557 F.3d at 968
    ; U.S. Sup. Ct. R. 13.3.
    -5-
    requirement: whether Burns had been diligently pursuing her rights. Burns points to
    the letter from her attorney as evidence of her diligence. We have previously noted
    the relevance of such advice from counsel in examining the diligence requirement.
    
    Riddle, 523 F.3d at 857
    . As in Riddle, Burns “may receive the benefit of equitable
    tolling if [s]he can establish that a court’s conduct ‘lulled [her] into inaction through
    reliance on that conduct.’” See 
    id. at 858
    (quoting United States v. Hernandez, 
    436 F.3d 851
    , 858 (8th Cir. 2006)). However, because diligence is a fact-intensive
    question, we decline to rule on it in the first instance here. See id.; 
    Bishop, 526 F.3d at 384-85
    . We therefore remand this case to the district court for a determination of
    whether Burns diligently pursued her rights during the time period in question.
    III.   CONCLUSION
    For the foregoing reasons, we reverse the district court’s holding that Burns did
    not satisfy the “extraordinary circumstance” requirement for equitable tolling and
    remand for further proceedings consistent with this opinion.
    ______________________________
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