Crangle v. Kelly

OPINION

PER CURIAM.

In 2013, Thomas Crangle filed a habeas petition in federal court under 28 U.S.C. § 2254. His petition included three ineffective assistance of counsel claims. He also alleged that his plea was constitutionally invalid because it was not made knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences. See United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Specifically, he argued that the state trial court misrepresented his maximum sentence by informing him that he would not be subject to post-release control—even though post-release control was statutorily mandated. See Rue-las v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). The federal district court dismissed Crangle’s petition as untimely.

On appeal, Crangle contends that, because the state-court order imposing post-release control whs a new judgment, his petition was timely under 28 U.S.C. § 2244(d)(1)(A). He also argues that his petition was timely under § 2244(d)(1)(D). We conclude that the state-court order was a new judgment that reset AEDPA’s one-year statute of limitations and thus REVERSE the federal district court’s order and REMAND for further proceedings. We do not reach Crangle’s arguments with regard to § 2244(d)(1)(D).

I. BACKGROUND

In November 2006, an Ohio grand jury indicted Thomas Crangle for rape of a minor, kidnapping, and gross sexual imposition. Crangle initially pled not guilty. In February 2007, he agreed to plead guilty to one count of rape with a recommended sentence of life imprisonment and parole eligibility after ten years. In signing the plea agreement, Crangle acknowledged, “I have been informed that if I am imprisoned, after my release from prison I [May_ or Will_] be supervised under post-release control, R.C. 2967.28, which could last up to 5 years,” with a checkmark entered after “Will.” At the sentencing hearing, however, the state court judge and Crangle’s own attorney incorrectly informed him that he would be subject to “straight parole” and not post-release control. The sentencing entry also did not indicate that Crangle would be subject to post-release control, despite the conflicting provision in his plea.agreement.

Crangle filed a notice of appeal in December 2007. On direct appeal, he argued that his counsel provided ineffective assistance by encouraging him to plead guilty rather than no contest to the rape charge. The Ohio court of appeals upheld the trial court’s judgment on November 5, 2008. Because Crangle did not appeal to the Ohio Supreme Court, his conviction became final 45 days later, on December 20, 2008.

A. Crangle’s state challenges to his conviction and sentence.

On June 16, 2010—over a year after Crangle’s conviction became final—the Ohio Supreme Court decided State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 931 N.E.2d 110 (Ohio 2010). In Camail, the trial judge sentenced the defendant to life in prison with possibility of parole after ten years, but “failed to include in the sentencing entry any term of postrelease control.” Id. at 124, 931 N.E.2d at 111-12. On appeal, the defendant argued that his sentence was “void because it did not include postrelease control for his rape convictions.” Id. at 125, 931 N.E.2d at 112. A majority of the Ohio Supreme Court agreed, holding that the postrelease control “statute’s plaip, unambiguous language expressly requires the inclusion of a mandatory postrelease-control term of five years for each prison sentence for felonies of the first degree and felony sex offenses”—even for indefinite or .life sentences. Id. at 126-27, 931 N.E.2d at 113-14. The Court thus “grant[ed] a writ of mandamus to compel [the trial judge], to issue a sentencing entry that complie[d] with the postrelease-control provisions.” Id. at 131, 931 N.E.2d at 117.

On August 1, 2010, Crangle obtained a copy of Camail from the prison library. Four days later, he filed pro se motions to withdraw his guilty plea and, based on Camail, “to sentence him. to a lawful sentence, properly imposing post-release control.” He argued that his “guilty plea was not knowingly, intelligently, and voluntarily[ ] made” because “he was not ... correctly advised of post-release control sanctions.”

On November 16, 2010, the trial court denied Crangle’s motion to withdraw his guilty plea. It also “orderfed] a correction to the judgment of conviction be filed NUNC PRO TUNC ... to include five (5) years mandatory post release sanctions.” Whereas Crangle’s plea agreement stated that the post-release control could last “up to 5 years,” the new judgment of conviction provided that Crangle “shall be supervised on post-release control by the Adult Parole Authority for a mandatory period of 5 years after being released from prison.” It also set out sanctions that could be imposed if Crangle “violate[d] the terms and conditions of postrelease control.” The order was backdated to Cran-gle’s initial sentencing in November 2007.

Crangle appealed the denial of his motion to withdraw his guilty plea. In a split decision, the court of appeals affirmed in November 2011. The Ohio Supreme Court denied leave to appeal on April 4, 2012.

In July 2012, Crangle filed a pro se delayed application to reopen his direct appeal, arguing that his delay should be excused because he could not have discovered the sentencing error before Carnail. The court of appeals held that Crangle "ha[d]not demonstrated good cause for his untimely filing” and denied Crangle’s application to reopen. The Ohio Supreme Court denied leave to appeal in January 2013.

In March 2013, Crangle filed a pro se motion in the Ohio Supreme Court for leave to file a delayed appeal from the November 2008 decision upholding his conviction. The Ohio Supreme Court denied this motion in May 2013.

B. Crangle’s federal habeas petition.

Crangle placed a federal habeas petition in the prison mailing system on March 28, 2013, which was docketed on April 15, 2013. He alleged that he had received ineffective- assistance of counsel under the Sixth and Fourteenth Amendments because: his trial counsel had advised him to enter a plea of guilty rather than no contest; his trial counsel had misinformed him about whether post-release control would be imposed; and his appellate counsel had failed to raise the sentencing error on direct appeal. He also alleged that the trial court violated his due process rights under the Fifth and Fourteenth Amendments by misrepresenting his sentence and accepting his guilty plea.

In March 2014, the federal district court dismissed Crangle’s habeas petition as untimely. It held that Crangle’s “conviction became final on December 20, 2008, when [he] failed to file a notice of appeal with the Ohio Supreme Court within 45 days of the state appellate court decision affirming his conviction” and that “AEDPA’s one-year statute of limitations expired on December 20, 2009.” It also concluded that the state court’s November 19, 2010 nunc pro tunc order was not “a new judgment of sentence that restart[ed] the statute of limitations under 28 U.S.C. § 2244(d)(1)(A),” and that Crangle could have discovered the factual predicate of his federal habeas claims before August 2010, thus precluding a new start date under 28 U.S.C. § 2244(d)(1)(D).

In March 2015, the motions judge granted a certificate of appealability, holding that reasonable jurists could debate whether Crangle’s second, third, and fourth claims for relief—-that is, the claims involving the imposition of post-release control— were timely under § 2244(d)(1)(D). The motions judge also held, based on our unpublished decisions in Mackey v. Warden, 525 FedAppx. 357 (6th Cir. 2013) (per curiam), and Eberle v. Warden, 532 Fed. Appx. 605 (6th Cir. 2013), that reasonable jurists could not debate the district court’s conclusion that the November 2010 nunc pro tunc order did not restart the statute of limitations under § 2244(d)(1)(A).

In December 2015, we decided King v. Morgan, 807 F.3d 154 (6th Cir. 2015). There, we emphasized that a new sentence leads to a “new judgment [that] normally resets the statute-of-limitations clock,” id. at 159, and that this new judgment allows a prisoner to attack both the new sentence and the undisturbed original conviction without any possibility of facing the second or successive limits, id. at 157. In light of King, we asked the parties to file supplemental briefing on whether the November 2010 nunc pro tunc order was a new judgment that reset the statute of limitations clock under § 2244(d)(1)(A). We now hold that it was.

II. ANALYSIS

We review de novo the district court’s decision to deny a 28 U.S.C. § 2254 petition for untimeliness. Board v. Bradshaw, 805 F.3d 769, 771 (6th Cir. 2015).

The statute of limitations governing Crangle’s § 2254 petition 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.” 28 U.S.C. § 2244(d)(1). This limitations period runs from the latest of four dates:

(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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or ■

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id. Crangle argues that the November 2010 nunc pro tunc order that imposed post-release control was a new sentence that resets the limitations clock under § 2244(d)(1)(A).

In Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), the Supreme Court considered whether a new sentence “was an unreviewable ‘second or successive’ challenge under 28 U-.S.C. § 2244(b).”' Id. at 323, 130 S.Ct. 2788. The Court held that the defendant’s “resen-tencing led to a new judgment,” which meant that a challenge to the new sentence was not second or successive. Id. at 331, 130 S.Ct. 2788. The defendant in Mag-wood sought only to challenge his new sentence, however, and the Court declined to resolve whether its “reading of § 2244(b) would allow a petitioner ... to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction.” Id. at 342, 130 S.Ct. 2788.

We took that question up in King v. Morgan, 807 F.3d 154 (6th Cir. 2015), where we held that “a- habeas petitioner, after a full resentencing and the new judgment that goes with it, may challenge his undisturbed conviction without triggering the ‘second or successive’ requirements.” Id. at 156. “As a matter of custom and usage,” we observed, “a judgment in a criminal case ‘includes both the adjudication of guilt and the sentence.’ ” Id. 157-58 (quoting Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 1993). Thus, “[e]ven when the only change in the state-court proceeding relates to the sentence,” the court must issue a new judgment that both imposes the modified sentence and reinstates the conviction. Id. at 158. And because “the existence of a new judgment is dispositive, in resetting the ‘second or successive’ count ... the existence of a new judgment permits a new application to attack the sentence, the conviction, or both.” Id. (quoting Magwood, 561 U.S. at 338, 130 S.Ct. 2788) (internal quotation marks omitted).

Although King's holding was limited to second or successive petitions, in evaluating “the net effect of [its] decision,” the court noted that the decision “may allow more habeas petitions” because “[t]he entry of a new judgment normally resets the statute-of-limitations clock” under § 2244(d)(1)(A). Id. at 159. We agree with the King court’s analysis. The interpretation of “judgment” in Magwood and King applies with equal force to § 2244(d)(1)(A) and § 2254(a). Accordingly, because “[t]he sentence is the judgment,” Burton v. Stewart, 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (quotation omitted), a new sentence not only, permits a challenge to either the new sentence or the undisturbed conviction, but also restarts AEDPA’s one-year window to challenge that judgment.

The State points to Mackey v. Warden, 525 Fed.Appx. 357 (6th Cir. 2013), where we held that, when a limited resentencing imposed only post-release control, it reset the one-year clock only if the petitioner' requested “relief [from the] imposition of post-release controls.” Id. at 362-63. But Mackey is no longer good law after King. In King, we held that, after a new sentence, a prisoner can bring a new petition attacking the underlying conviction as well as the new judgment. 807 F.3d at 157-58. King thus abrogated Mackey's statement that, when a resentencing is limited in scope, a prisoner can only challenge the new part of the sentence. Magwood and King likewise abrogated Bachman v. Bagley, 487 F.3d 979, 983 (6th Cir. 2007), where we held that a sexual predator designation that was imposed after the original judgment restarted the one-year clock only for a challenge to the sexual predator designation,¹

Our analysis is consistent with a line of cases in which a limited resentencing benefits the prisoner, such as in a sentence-reduction proceeding under 18 U.S.C. § 3582(c) or Criminal Rule 35(b). Such sentence modifications, federal law provides, do not disturb the underlying initial judgment, which continues to “constitute[ ] a final judgment.” 18 U.S.C. § 3582(b). As several other courts of appeals have noted, such “a reduced sentence [is] not a new one.” United States v. Jones, 796 F.3d 483, 485 (5th Cir. 2015) (§ 3582(e)); see, e.g., White v. United States, 745 F.3d 834, 836-37 (7th Cir. 2014) (§ 3582(c)); United States v. Olvera, 775 F.3d 726, 729 (5th Cir. 2015) (Rule 35(b)); Murphy v. United States, 634 F.3d 1303, 1309 (11th Cir. 2011) (Rule 35(b)) (collecting cases); see also Reichert v. United States, 101 Fed.Appx. 13, 14 (6th Cir. 2004) (Rule 35(b)). A new, worse-than-before sentence, by contrast, amounts to a new judgment. See Burton, 549 U.S. at 156-57, 127 S.Ct. 793.

That segues to the final question in this appeal; Did the November 2010 nunc pro tunc order effect a new, worse-than-before sentence? The State argues that it did not. At minimum, the State contends, Crangle must serve five years of parole— that is, the entire length of postrelease control—and supervision under parole is no different from supervision under post-release control. Thus, the State argues, because post-release control is no different from parole, Crangle’s sentence after the November 2010 nunc pro tunc order was substantively the same as his sentence before. The November 2010 nunc pro tunc order did not, in other words, effect a new judgment; it effected the same judgment by a different name.

We disagree. Post-release control materially increases the potential restrictions on Crangle’s liberty for at least two reasons. First, upon the prisoner’s release to post-release control, the parole board must impose at least one post-release control sanction “to apply during the prisoner’s period of post-release control.” Ohio Rev. Code § 2967.28(D)(1). These are drawn from Ohio Revised Code §§ 2929.16-.18,² which authorize a wide variety of sanctions, including community service, residential restrictions, curfews, and fines. Parole does not appear to have the same statutory requirement.³ See Ohio Rev. Code § 5149.01-.12; id. § 2967.02. Additionally, while both parolees and releas-ees—the statutory term for persons on post-release control⁴—may be required to reside in a “halfway house” upon release, it appears that only releasees can be required to reside in a “community-based correctional facility” or a “jail.” That is a material change in conditions. See Ohio Rev. Code § 2967.14 (providing that parole board may require both parolees and releases “to reside in a halfway house or other suitable community residential center” upon release); id. § 2967.28(D) (authorizing parole board to impose residential sanctions on releasees upon release); id. § 2929.16(A) (defining residential sanctions to include a “[a] term of up to six months at a community-based correctional facility” and “ a term of up to six months in a jail”).

Second, releasees that re-offend after completing post-release control may be subject to a collateral consequence that parolees avoid. When a parolee completes parole, Ohio law directs the parole board to issue a certificate of final release. See Ohio Rev. Code § 2967.16(A). When a re-leasee completes post-release control, Ohio law not only directs the parole board to issue a certificate of final release, but also to “classify the termination of post-release control as favorable or unfavorable depending on the offender’s conduct and compliance with the conditions of supervision.” Id. § 2967.16(B)(1); see also Ohio Admin. Code § 5120:1-1-42(A). Ohio law provides that an unfavorable “[designation shall be considered as a relevant factor in sentencing ... if the offender is convicted of a felony offense subsequent to the completion or termination of the period of post-release control.” Ohio Admin. Code § 512Q:1-1-42(A); see also Ohio Rev. Code § 2929.12(D)(1) (providing that “[t]he sentencing court shall consider” whether the offender was “unfavorably terminated from post-release control for a prior offense”). Thus, post-release control supervision exposes an inmate to the possibility of an unfavorable designation, which in. turn exposes the inmate to the possibility of greater punishment if he or she reoffends. That, too, is a material difference in Cran-gle’s conditions of confinement.

The State has no . answer to these arguments. Instead, it attempts to sidestep this conclusion by seizing on the fact that the November 2010 order is labeled “nunc pro tunc.” The phrase “nunc pro tunc” means “now for then” and “refers to situations in which the court’s records do not accurately reflect its actions.” Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995) (citation omitted). Nunc pro tunc orders are customarily used only “to correct erroneous records,” not to “revise the substance of what transpired or to backdate events.” Id. If the November 2010 nunc pro tunc order merely corrected a record to accurately reflect the court’s actions, it would not be a new sentence that resets the statute of limitations under § 2244(d)(1)(A)-

But that’s not what happened here. At sentencing, the trial court told Crangle that he would not be subject to post-release control and entered judgment accordingly. The later nunc pro tunc order walked back the trial court’s statement, imposed post-release control, and reworded Crangle’s sentence. That is not merely the correction of a clerical error. No matter the label, the November 2010 order changed the substance of his sentence— and thus amounted to a new judgment. A state court’s decision to affix the label nunc pro tunc to an order does not control the federal questions whether the order changes his conditions of confinement.

Because the November 19, 2010 nunc pro tunc order created a new sentence, it was a new judgment that reset the one-year statute of limitations to file a habeas corpus petition. Under 28 U.S.C. § 2244(d)(2), the statute of limitations was tolled from the date Crangle received notice of the nunc pro tunc order to the date when he received notice of the Ohio Supreme Court’s decision to deny leave to appeal. The Ohio Supreme Court denied leave to appeal on April 4, 2012 and Cran-gle placed his federal habeas petition in the prison mailing system on March 28, 2013—that is, within one year. His petition was therefore timely.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order denying Crangle’s habeas petition for untimeliness and REMAND for further proceedings. Because Crangle’s petition was timely under § 2244(d)(1)(A), we do not reach his arguments regarding § 2244(d)(1)(D).

1 . The State also relies on Eberle v. Warden, 532 Fed.Appx. 605 (6th Cir. 2013). But Eberle did not restart the limitations clock because the state-court action helped Eberle: the state court vacated a five-year term of postrelease control that should not have been imposed in the first place. Id.- at 609-110.

2 . See Ohio Dep’t of Rehab. & Corr., No. 105-PBD-08, Post Release Control Screening and Assessment 2 (2015).

3 . The State notes that the parole board may place a parolee in a community-based correctional facility or jail for violating parole, but it does not point to any provision authorizing the parole board to impose these residential sanctions upon release.

4 . The Ohio Revised Code defines parolee as "any inmate who has been released from confinement on parole by order of the adult parole authority” and "who is under supervision of the adult parole authority and has not been granted a final release.” Ohio Rev. Code § 2967.01(1). It defines “releasee” as "an inmate who has been released from confinement pursuant to section 2967.28 of the Revised Code”—that is, the post-release control provision of the Ohio Revised Code—"under a period of post-release control that includes one or more post-release control sanctions.” Id. § 2967.01(J). The State notes that one administrative regulation defines "releasee” to include persons on either parole or post-release control. See Ohio Admin. • Code § 5120:1-1-01(F), Be that,as it may, here we are interpreting statutory provisions, and we must therefore rely on statutory definitions.