Sherman Noble v. Larry Norris ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1155
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Sherman Noble, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Larry Norris, Director, Arkansas * Eastern District of Arkansas.
Department of Correction, *
* [UNPUBLISHED]
Appellee. *
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Submitted: June 28, 2001
Filed: July 13, 2001
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Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Sherman Noble appeals the District Court’s dismissal of his 28 U.S.C. § 2254
petition. The District Court concluded that Noble had procedurally defaulted five of
the six claims he presented in his petition. We agree, and affirm the dismissal of these
five claims. See 8th Cir. R. 47B.
The District Court determined that Noble’s sixth claim, ineffective assistance of
counsel founded in counsel’s failure to preserve Noble’s right to appeal the denial of
a motion to suppress, was not procedurally defaulted. The Court dismissed it,
however, concluding that Noble’s § 2254 petition was untimely.
Subsequently developed case law has rendered the court's conclusion incorrect
because Noble had a “properly filed” postconviction petition pending in state court
from February 1996 through June 11, 1998. See 28 U.S.C. § 2244(d)(2) (Supp. IV
1998) (“properly filed application for State post-conviction or other collateral review”
tolls limitations period); Artuz v. Bennett, 121 S. Ct. 361, 363-65 (2000) (defining
“properly filed”); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.) (applying 28 U.S.C.
§ 2244(d) definition in concluding that second postconviction motion in state court,
subject to dismissal as successive under state law, was nonetheless “properly filed”),
cert. denied, 121 S. Ct. 1663 (2001). As such, his June 10, 1999 § 2254 petition was
timely.
We therefore remand this case to the District Court for consideration of the
ineffective-assistance claim on the merits. See Burns v. Gammon, 173 F.3d 1089, 1094
(8th Cir. 1999). The judgment of the District Court is affirmed in all other respects.
Noble’s motion to supplement the appellate record with the documents he has tendered
is granted.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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