Charles Branham v. State of Montana ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES IVAN BRANHAM, No. 19-35829
Petitioner-Appellant,
D.C. No.
v. 9:18-cv-00059-
DLC-KLD
STATE OF MONTANA; PATRICK
MCTIGHE,
Respondents-Appellees, OPINION
and
JIM SALMONSEN,
Respondent.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted July 10, 2020
Portland, Oregon
Filed May 6, 2021
2 BRANHAM V. STATE OF MONTANA
Before: Michael R. Murphy, * Mark J. Bennett, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Miller
SUMMARY **
Habeas Corpus
The panel affirmed the district court’s judgment
dismissing as barred by the one-year statute of limitations a
Montana state prisoner’s habeas corpus petition brought
pursuant to 28 U.S.C. § 2254.
Under 28 U.S.C. § 2244(d), the one-year period begins
to run upon “the conclusion of direct review” of the
conviction, and it is suspended during the pendency of any
“properly filed application for State post-conviction or other
collateral review.” The panel held that a proceeding in the
Sentence Review Division of the Montana Supreme Court is
collateral review, not direct review, which rendered the
petition in this case untimely.
*
The Honorable Michael R. Murphy, United States Circuit Judge
for the U.S. Court of Appeals for the Tenth Circuit, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BRANHAM V. STATE OF MONTANA 3
COUNSEL
Palmer A. Hoovestal (argued), Hoovestal Law Firm PLLC,
Helena, Montana, for Petitioner-Appellant.
Mardell Ployhar (argued), Assistant Attorney General;
Timothy C. Fox, Attorney General; Office of the Attorney
General, Helena, Montana; for Respondents-Appellees.
OPINION
MILLER, Circuit Judge:
A prisoner who seeks a federal writ of habeas corpus to
review a state-court conviction must satisfy a one-year
statute of limitations. 28 U.S.C. § 2244(d). The one-year
period begins to run upon “the conclusion of direct review”
of the conviction, and it is suspended during the pendency of
any “properly filed application for State post-conviction or
other collateral review.” Id. We are asked to decide whether
a proceeding in the Sentence Review Division of the
Montana Supreme Court constitutes direct review or
collateral review. We conclude that it is collateral review.
I
On the night of December 10, 2009, Charles Branham
fatally stabbed Michael Kinross-Wright. Branham admitted
the stabbing but claimed that he acted in self-defense. A
Montana jury found Branham guilty of mitigated deliberate
homicide, and he was sentenced to 40 years of imprisonment
without eligibility for parole. The Montana Supreme Court
affirmed. State v. Branham, 269 P.3d 891, 897 (Mont. 2012).
Branham did not file a petition for a writ of certiorari in the
United States Supreme Court.
4 BRANHAM V. STATE OF MONTANA
About 11 months after the time for filing a petition for a
writ of certiorari expired, Branham filed a petition for state
post-conviction relief, arguing that he had received
ineffective assistance of counsel. See Mont. Code Ann. § 46-
21-101 et seq. The state district court denied his petition, and
the Montana Supreme Court affirmed. Branham v. State,
390 P.3d 162 (Mont. 2017) (unpublished table decision).
About two weeks later, Branham filed an application for
review of his sentence by the Sentence Review Division of
the Montana Supreme Court. See Mont. Code Ann. § 46-18-
901 et seq. The Sentence Review Division affirmed the
sentence, concluding that it was neither “clearly inadequate
[n]or clearly excessive.”
More than six months later, Branham filed a petition for
a writ of habeas corpus in federal district court. He alleged
that both trial and appellate counsel were unconstitutionally
ineffective and that he was deprived of due process by
various procedural errors at trial and in post-conviction
proceedings.
A magistrate judge recommended that the petition be
dismissed as time barred. The magistrate judge applied 28
U.S.C. § 2244(d)(1), which provides that “[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.” As relevant here, the period begins to run upon
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” Id. § 2244(d)(1)(A). But the statute
also provides that “[t]he 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.” Id. § 2244(d)(2).
BRANHAM V. STATE OF MONTANA 5
The magistrate judge determined that the statute of
limitations began to run after the expiration of the period for
seeking certiorari to review the Montana Supreme Court’s
2012 decision affirming Branham’s conviction. The
magistrate judge treated both Branham’s petition for post-
conviction relief and his application for review by the
Sentence Review Division as forms of “State post-
conviction or other collateral review,” which meant that the
statute of limitations was tolled during those proceedings.
Once the proceedings concluded, Branham had 23 days
remaining in which to file, but he did not file until several
months later, making his petition untimely.
The district court adopted the magistrate judge’s
recommendation and dismissed the petition. The court noted
that “[b]ecause Branham does not dispute [the] actual
calculation of the various dates involved, but rather disputes
when the statute of limitations period began, the narrow
issue is whether Montana’s [Sentence Review Division]
proceeding is a form of direct or collateral review.” The
court stated that our decision in Rogers v. Ferriter, 796 F.3d
1009 (9th Cir. 2015), “largely resolves the issue.” In the
court’s view, although the decision in Rogers “did not
directly address whether Montana’s [Sentence Review
Division] process is direct or collateral, it was a basic
assumption of the case that it was a collateral proceeding.”
The court added that because review in the Sentence Review
Division “may occur after a post-conviction review it is
necessarily collateral.”
The district court granted a certificate of appealability.
II
The timeliness of Branham’s habeas petition—and, thus,
the resolution of this appeal—depends on how to
6 BRANHAM V. STATE OF MONTANA
characterize Montana’s Sentence Review Division
proceeding. If that proceeding is a form of “direct review”
under section 2244(d)(1)(A), then the one-year statute of
limitations began to run upon its conclusion, making
Branham’s petition timely. If it is instead a form of “State
post-conviction or other collateral review” under section
2244(d)(2), then the statute of limitations was tolled while
that proceeding was ongoing but did not reset upon its
conclusion, making Branham’s petition untimely.
Reviewing de novo, McMonagle v. Meyer, 802 F.3d 1093,
1096 (9th Cir. 2015) (en banc), we agree with the district
court that the proceeding is a form of collateral review.
At the outset, we conclude that our precedent does not
resolve the issue before us. The district court relied on our
decision in Rogers, in which we considered whether a
Sentence Review Division proceeding was “pending,” for
purposes of tolling under section 2244(d)(2), during the time
that the Sentence Review Division held it in abeyance so that
the petitioner could pursue state post-conviction relief.
796 F.3d at 1010. In describing the issue, we referred to the
Sentence Review Division as part of “Montana’s dual-track
system for collateral review of criminal sentences.” Id. Thus,
as the district court correctly observed, “a basic assumption”
of our decision was that a proceeding in the Sentence Review
Division was collateral. But no party in Rogers suggested
that the proceeding might constitute direct review, and the
issue of how to characterize it was not before us. “Judicial
assumptions concerning . . . issues that are not contested are
not holdings,” so the assumption reflected in Rogers is not
binding here. FDIC v. McSweeney, 976 F.2d 532, 535 (9th
Cir. 1992) (omission in original) (quoting United States v.
Daniels, 902 F.2d 1238, 1241 (7th Cir. 1990)); accord
Summers v. Schriro, 481 F.3d 710, 712–13 (9th Cir. 2007).
BRANHAM V. STATE OF MONTANA 7
Because our precedent does not answer the specific
question presented, we turn to more general guidance on the
difference between direct review and collateral review. The
Supreme Court has held that “‘collateral review’ means a
form of review that is not part of the direct appeal process.”
Wall v. Kholi, 562 U.S. 545, 552 (2011); see also id. (noting
that a “collateral attack” is “[a]n attack on a judgment in a
proceeding other than a direct appeal” (alteration and
emphasis in original) (quoting Black’s Law Dictionary (9th
ed. 2009))). To illustrate the distinction, the Court has
observed that “habeas corpus is a form of collateral review,”
as are coram nobis proceedings and proceedings under
28 U.S.C. § 2255. Id.In Summers, a case that preceded Kholi, we noted that
section 2244(d) uses “the phrase ‘direct review’ rather than
the phrase ‘direct appeal,’” and we criticized the suggestion
that “the phrase ‘direct review’ excludes any form of review
that is not a ‘direct appeal.’” 481 F.3d at 713. On its broadest
reading, that language would be irreconcilable with the
statement in Kholi that “‘collateral review’ means a form of
review that is not part of the direct appeal process,” 562 U.S.
at 552, as well as with our subsequent en banc decision in
McMonagle, in which we said that “[i]t is when a direct
appeal becomes final that [the] 1-year statute of limitations
begins running,” 802 F.3d at 1098. But our holding in
Summers was much more limited: We held that the label a
State attaches to a proceeding is not controlling, and that
“direct review” includes a proceeding that, although not
called an “appeal,” is nevertheless “the functional equivalent
of a direct appeal.” 481 F.3d at 716 (quoting State v. Ward,
118 P.3d 1122, 1126 (Ariz. Ct. App. 2005)); see also Carey
v. Saffold, 536 U.S. 214, 223 (2002) (“[F]or purposes of
applying a federal statute that interacts with state procedural
rules, we look to how a state procedure functions, rather than
8 BRANHAM V. STATE OF MONTANA
the particular name that it bears.”). That holding is consistent
with Kholi and McMonagle, and it guides our analysis here.
A review of our cases and those of the Supreme Court
reveals three factors that are relevant to determining whether
a proceeding is functionally “part of the direct appeal
process” or is instead a form of collateral review. Kholi,
562 U.S. at 552.
First, we consider how the proceeding is characterized
under state law. Of course, “[b]ecause the question of what
constitutes direct review is intertwined with the question of
when a decision on direct review becomes final, it makes
sense to decide both questions by reference to uniform
federal law.” Summers, 481 F.3d at 714. And as we have
already explained, the label a State attaches to a proceeding
is not determinative. Id. But how the State “characterize[s]”
the proceeding “may affect” our analysis insofar as it
explains how the proceeding “functions in the [state]
criminal justice system.” Id.; see McMonagle, 802 F.3d at
1097 (“[W]e look to [state] law to determine when direct
review of a [state] conviction concludes.”).
Second, we consider the timing of the proceeding. In
assessing the finality of federal convictions, the Supreme
Court has explained that “[f]inality attaches” once the Court
“affirms a conviction on the merits on direct review or denies
a petition for a writ of certiorari, or when the time for filing
a certiorari petition expires.” Clay v. United States, 537 U.S.
522, 527 (2003). And “[i]n construing the similar language
of § 2244(d)(1)(A),” the Court has identified “no reason to
depart from this settled understanding, which comports with
the most natural reading of the statutory text.” Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009). That understanding
is important here because once finality attaches, “the
conclusion of direct review occurs.” Id.; see Gonzalez v.
BRANHAM V. STATE OF MONTANA 9
Thaler, 565 U.S. 134, 150 (2012). A distinguishing feature
of collateral review, therefore, is that it “necessarily follows
direct review.” Lopez v. Wilson, 426 F.3d 339, 351 (6th Cir.
2005) (en banc) (citation omitted).
In addition, direct review is generally “governed by
short, definite deadlines.” Summers, 481 F.3d at 717. That,
too, is a significant feature of direct review for purposes of
the federal habeas statute of limitations. The Supreme Court
has observed that the statute of limitations is aimed at
“safeguard[ing] the accuracy of state court judgments by
requiring resolution of constitutional questions while the
record is fresh, and lend[ing] finality to state court judgments
within a reasonable time.” Panetti v. Quarterman, 551 U.S.
930, 945 (2007) (quoting Day v. McDonough, 547 U.S. 198,
205–06 (2006)); see also Rhines v. Weber, 544 U.S. 269, 277
(2005). Those aims are achieved by using the completion of
direct review as the triggering event for the start of the
limitations period. By contrast, while direct review
“generally is constrained by tight, non-waivable time
limits,” the time limits governing collateral review “are
generally looser and waivable for good cause.” Lopez,
426 F.3d at 351 (citation omitted).
Third, we consider whether the proceeding takes the
place of an appeal in the State’s system. In Kholi, the Court
suggested that it could “imagine an argument” that the
proceeding at issue—a motion for a reduction of sentence
under Rhode Island Rule of Criminal Procedure 35—“is in
fact part of direct review” because it is the only opportunity
for defendants to “raise any challenge to their sentences.”
562 U.S. at 555 n.3. We applied similar reasoning in
Summers, concluding that a proceeding under Arizona Rule
of Criminal Procedure 32 is a form of “direct review”
because, for those defendants whose convictions rest on a
10 BRANHAM V. STATE OF MONTANA
guilty plea, the proceeding represents “the only means
available for exercising the constitutional right to appellate
review” under Arizona law. 481 F.3d at 716 (quoting
Montgomery v. Sheldon, 889 P.2d 614, 616 (Ariz. 1995));
see id. (“[A] Rule 32 proceeding is the appeal for a defendant
pleading guilty.” (emphasis in original) (quoting
Montgomery v. Sheldon, 893 P.2d 1281, 1282 (Ariz. 1995))).
A proceeding that substitutes for an appeal can be a form of
direct review even if it is not called an “appeal.”
III
With those principles in mind, we examine Montana’s
Sentence Review Division proceeding.
In Montana, the review of criminal sentences is
bifurcated. The Montana Supreme Court “reviews sentences
for legality—that is, whether the sentence is within the
parameters of the sentencing statute,” Jordan v. State,
194 P.3d 657, 661 (Mont. 2008), while the Sentence Review
Division is charged with reviewing “the inequity or disparity
of [a] sentence,” State v. Moorman, 928 P.2d 145, 149
(Mont. 1996). The Sentence Review Division consists of
three Montana district court judges designated by the Chief
Justice of the Montana Supreme Court. Mont. Code Ann.
§ 46-18-901(1). Anyone sentenced to a term of
imprisonment of one year or more may apply to the Sentence
Review Division to review the sentence. Id. § 46-18-903(1).
As we next explain, the state-law characterization of a
Sentence Review Division proceeding, the timing of the
proceeding, and the relationship of the proceeding to other
forms of review under Montana law all indicate that the
proceeding is a form of collateral review. That conclusion
comports with the decisions of courts that have examined
similar systems in other States.
BRANHAM V. STATE OF MONTANA 11
A
Montana law does not characterize a Sentence Review
Division proceeding as part of the direct review process.
First, Montana law provides that a petitioner seeking post-
conviction relief may not raise “grounds for relief that were
or could reasonably have been raised on direct appeal.”
Mont. Code Ann. § 46-21-105(2). The Montana Supreme
Court has held that “an application for review of the
sentence” by the Sentence Review Division is not a direct
appeal for purposes of that statute. Moorman, 928 P.2d
at 150. In reaching that conclusion, the court “explained the
difference between an application to the Sentence Review
Division and a direct appeal,” emphasizing the limited
nature of the Division’s review. Id. at 149. Moorman
demonstrates that Montana considers sentence review to be
distinct from the direct review process.
Second, the Montana post-conviction relief statute
provides that a decision becomes “final” for purposes of
computing the deadlines for seeking relief “when the time
for appeal to the Montana supreme court expires,” or, “if an
appeal is taken to the Montana supreme court,” when the
deadline for filing a petition for a writ of certiorari to the
United States Supreme Court expires or when the United
States Supreme Court issues its final order. Mont. Code Ann.
§ 46-21-102(1). The statute does not mention the Sentence
Review Division. The Montana Supreme Court has therefore
held that a conviction becomes “final” when the “time for
appeal [to the Montana Supreme Court] expire[s],” despite a
defendant’s later application to the Sentence Review
Division. Sanchez v. State, 86 P.3d 1, 3 (Mont. 2004); see id.at 1–2 (distinguishing between a “direct appeal” to the
Montana Supreme Court and “sentence review” by the
Division).
12 BRANHAM V. STATE OF MONTANA
Branham challenges that interpretation of Montana law.
He relies on a statement by the Montana Supreme Court in
Ranta v. State, 958 P.2d 670, 678 (Mont. 1998), that “[w]ere
the legislature to abolish the review division, the function of
reviewing sentences on equitable grounds would . . . return
to [the Montana Supreme] Court.” But simply because the
Montana Supreme Court reviewed equitable challenges to
sentences in the past—and could potentially do so again in
the future—does not change the reality that, at present, a
prisoner must raise those challenges in a separate forum.
Branham also points to Ranta’s holding that the Montana
Constitution gives a prisoner a right to counsel in the
Sentence Review Division. See 958 P.2d at 676–77. But the
Montana Supreme Court based that holding on its view that
sentence review is “a critical stage of the proceedings against
a defendant.” Id. at 674. It expressly declined to hold that it
“constitutes a first appeal provided as a matter of right.” Id.
at 677. Under Montana law, the proceeding is not a direct
appeal.
B
The deadlines to apply for review by the Sentence
Review Division also suggest that that proceeding is
appropriately characterized as a form of collateral review. A
prisoner seeking sentence review must apply within 60 days
of the date the sentence was imposed, of the determination
of an appeal to the Montana Supreme Court, or of the
determination of a petition for post-conviction relief,
whichever is latest. Mont. Code Ann. § 46-18-903(1); Mont.
Sentence Rev. Div. R. 2. In addition, if the prisoner is unable
to meet those deadlines and can show cause, the Sentence
Review Division may “consider any late request for review
of sentence and may grant or deny the request.” Mont. Code
Ann. § 46-18-903(3); Mont. Sentence Rev. Div. R. 7.
BRANHAM V. STATE OF MONTANA 13
The timing rules are significant for two reasons. First, a
prisoner can seek review by the Sentence Review Division
after seeking Montana post-conviction relief, which
everyone agrees is a form of collateral review. That alone
suggests that sentence review is a form of collateral review.
Collateral review, after all, “necessarily follows direct
review.” Lopez, 426 F.3d at 351 (citation omitted). Indeed,
we are aware of no form of direct review that takes place
after collateral review.
Second, as we observed in Summers, direct review is
generally “governed by short, definite deadlines.” 481 F.3d
at 717. Because sentence review need not begin until after
the conclusion of a direct appeal and a petition for post-
conviction relief, it can take place years after conviction,
even without the exercise of the Sentence Review Division’s
broad authority to “consider any late request.” Mont. Code
Ann. § 46-18-903(3). Such permissive deadlines are a
characteristic of collateral review, not direct review.
C
A Sentence Review Division proceeding does not take
the place of an appeal under Montana law. To the contrary,
a Montana prisoner who wishes to challenge the legality of
a sentence has two alternatives to review by the Sentence
Review Division. First, a prisoner can directly appeal to the
Montana Supreme Court to challenge the constitutionality or
legal sufficiency of the sentence. See, e.g., State v. Wardell,
122 P.3d 443, 448–49 (Mont. 2005) (reviewing on direct
appeal whether a sentence was “so disproportionate” or
“excessive” that it violated the Eighth Amendment’s
prohibition against cruel and unusual punishment). Second,
a prisoner may seek post-conviction relief. Mont. Code Ann.
§ 46-21-101(1). Although post-conviction relief “is not
available to attack the validity of the . . . sentence,” id. § 46-
14 BRANHAM V. STATE OF MONTANA
22-101(2), the Montana Supreme Court has held that “an
individual incarcerated pursuant to a facially invalid
sentence” nonetheless “ha[s] the ability to challenge its
legality,” including, “for example, a sentence which either
exceeds the statutory maximum for the crime charged or
which violates [a] constitutional right.” Lott v. State,
150 P.3d 337, 342 (Mont. 2006).
Branham observes that a Sentence Review Division
proceeding is “the only opportunity a criminal defendant has
to challenge an otherwise lawful sentence on equitable
grounds.” Ranta, 958 P.2d at 676 (emphasis added). He adds
that he “could not have exhausted his state court remedies”
without pursuing sentence review. But precisely because
sentence review is limited to examining “the inequity or
disparity of [a] sentence”—and “does not review errors of
law”—it is unclear whether any claim advanced in the
Sentence Review Division would even be cognizable on
federal habeas review. Moorman, 928 P.2d at 149. In any
event, “exhaustion and finality are distinct concepts,” and
sometimes exhaustion can require pursuing collateral
review. McMonagle, 802 F.3d at 1098; see Burger v. Scott,
317 F.3d 1133, 1138 (10th Cir. 2003) (“Congress did not
draft the federal limitations period to begin running only at
the end of a particular state’s exhaustion process.”). In
addition, to the extent that sentence review is equitable in
nature, it resembles habeas corpus, which “is, at its core, an
equitable remedy,” Schlup v. Delo, 513 U.S. 298, 319
(1995), and which is also the archetypal example of
collateral review, Kholi, 562 U.S. at 552.
D
Although we have found no decision addressing a state
procedure precisely like Montana’s sentence review, our
conclusion is consistent with the decisions of other courts
BRANHAM V. STATE OF MONTANA 15
that have examined similar state proceedings in which a
prisoner can challenge the length of a sentence. When such
a proceeding results in the vacatur of the sentence and
imposition of a new sentence, then the statute of limitations
will run anew from the imposition of the new judgment. See
Magwood v. Patterson, 561 U.S. 320, 323–24 (2010); Smith
v. Williams, 871 F.3d 684, 685–86 (9th Cir. 2017). But when
it does not, the proceeding is generally characterized as
collateral review and does not restart the limitations period.
See, e.g., Mitchell v. Green, 922 F.3d 187, 195–98 (4th Cir.
2019) (“[A] Maryland Rule 4-345 motion to reduce sentence
‘is not part of the direct review process.’” (quoting Kholi,
562 U.S. at 555)); Rogers v. Secretary, Dep’t of Corr.,
855 F.3d 1274, 1277 (11th Cir. 2017) (holding that a Florida
Rule 3.800(c) motion to correct or reduce sentence “is an
application for collateral review”); Bridges v. Johnson,
284 F.3d 1201, 1202 (11th Cir. 2002) (“[A]n application for
sentence review is not a part of the direct appeal process
under Georgia law.”). We are aware of no authority treating
a procedure similar to Montana’s as a form of direct review
that restarts the statute of limitations under section 2244(d).
AFFIRMED.