Renae Greene v. James Washington ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1115
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Renae Greene, *
*
Petitioner - Appellant, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
James Washington, * [UNPUBLISHED]
*
Respondent - Appellee. *
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Submitted: June 11, 2001
Filed: July 20, 2001
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Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
TUNHEIM,* District Judge.
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PER CURIAM.
Missouri inmate Renae Greene is serving consecutive life and thirty-year prison
terms for armed robbery and armed criminal action. Her conviction and sentence were
affirmed by the Missouri Court of Appeals, her motion for state post-conviction relief
was denied by the trial court, and that ruling was affirmed by the Missouri Court of
Appeals on September 24, 1996. Under the Antiterrorism and Effective Death Penalty
*
The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota, sitting by designation.
Act (“AEDPA”), she had one year from that date to file a petition for federal habeas
corpus relief under 28 U.S.C. § 2254. See 28 U.S.C. §§ 2244(d)(1)(A) & (d)(2).
Instead, she filed a motion to recall the mandate in the Missouri Court of Appeals on
January 11, 1999, which was promptly denied, and then filed this § 2254 petition on
May 14, 1999. The district court1 dismissed the petition as time-barred, and Ms.
Greene appealed. The court then granted a certificate of appealability on the issue of
equitable tolling, observing that “the circumstances under which AEDPA’s time
limitations may be equitably tolled are not completely settled in this circuit.”
On appeal, Ms. Greene argues, as she did in the district court, that AEDPA’s
one-year statute of limitations should be equitably tolled in this case because her post-
conviction attorney mistakenly advised Ms. Greene that the filing of a motion to recall
the mandate in the Missouri Court of Appeals after the one year limitations period had
expired would “afford [Ms. Greene] a new one year period before her time to file a
2254 action lapses.” However, while her appeal was pending, this court issued its
decision in Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), petition for cert.
filed, __ U.S.L.W. ____ (U.S. June 11, 2001) (No. 00-10520), which rejected the
contention that equitable tolling is appropriate when counsel has misled a petitioner as
to the applicable limitations period:
Equitable tolling is proper only when extraordinary circumstances beyond
a prisoner’s control make it impossible to file a [§ 2254] petition on time.
. . . Even in the case of an unrepresented prisoner alleging a lack of legal
knowledge or legal resources, equitable tolling has not been warranted.
. . . Thus, tolling is even less appropriate in a case where the petitioner
is represented by counsel. . . . We agree with those courts that have
found that counsel’s confusion about the applicable statute of limitations
does not warrant equitable tolling.
1
The HONORABLE ORTRIE D. SMITH, United States District Judge for the
Western District of Missouri.
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(Citations omitted.) Ms. Greene urges us to reconsider Kreutzer, but a panel of this
court may not do so. Applying Kreutzer, the district court was correct in concluding
that Ms. Greene can point to no extraordinary circumstances warranting equitable
tolling of the AEDPA statute of limitations, and its judgment must be affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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