Court: Court of Appeals for the Ninth Circuit; February 20, 2002; Federal Appellate Court
Jackery B. White, a prisoner in Guam, appeals the dismissal of his habeas corpus petition under 28 U.S.C. § 2254, which the district court ruled as procedurally barred and unexhausted. The Ninth Circuit Court of Appeals reviewed the case, focusing on whether the district court appropriately dismissed the petition for failure to exhaust state remedies and procedural default. Additionally, the court identified a critical issue regarding the applicability of the one-year statute of limitations under 28 U.S.C. § 2244(d), raised by the respondent. After supplemental briefing and oral arguments, the court concluded that White's petition was indeed barred by this statute of limitations, that statutory tolling under § 2244(d)(2) did not apply to make the petition timely, and that White was not entitled to equitable tolling. Consequently, the court affirmed the district court's dismissal without addressing the original grounds for dismissal.
White had previously pleaded guilty to robbery in 1993, receiving a 30-year sentence, which included a special allegation. After his motion to reduce the sentence was denied, he appealed but his appeal was dismissed at his counsel's request in 1995. In 1994, White filed a habeas corpus petition in the Superior Court of Guam, claiming his guilty plea was involuntary due to his counsel's conflict of interest and incompetence. The court held an evidentiary hearing and ultimately denied his petition, finding no conflict and affirming the validity of his plea.
White, with legal counsel, appealed the denial of his habeas petition to the Supreme Court of Guam, claiming his guilty plea was not knowing and voluntary due to a conflict of interest from his counsel. He also argued that the Guam Superior Court should have granted his petition due to the government’s late filing. The Supreme Court treated the appeal as an original habeas corpus petition and denied it on December 16, 1998, after a de novo review. White asserts he attempted to file a certiorari petition with the Ninth Circuit on December 28, 1998, evidenced by a "Notice of Appeal" that mistakenly referenced the Guam Supreme Court but indicated an appeal to the Ninth Circuit. Although he claimed to have sent this document for filing, it was never officially filed, and a subsequent inquiry revealed no pending matters in the court.
On March 13, 2000, White filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of Guam, which dismissed his petition. The legal framework changed with the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), which established a one-year deadline for state prisoners to file federal habeas petitions. White's conviction became final on December 19, 1995, when he withdrew his direct appeal. The one-year statute of limitations commenced on April 24, 1996—the AEDPA's effective date—while White had a habeas petition pending in Guam, tolling the limitations period. The tolling ended with the Supreme Court's denial of his petition on December 16, 1998, after which the limitation period began to run, and White did not file his federal petition until March 13, 2000. As such, his federal petition is barred by the statute of limitations unless he qualifies for additional tolling.
White claims entitlement to an additional 90 days of statutory tolling from December 16, 1998, following the Supreme Court of Guam's denial of his territorial habeas petition, arguing he could have filed a petition for a writ of certiorari with the United States Supreme Court during this period. He also contends that tolling should apply for the duration from December 28, 1998, when he attempted to file such a petition, until November 2, 1999, when he learned it was never filed.
However, the court finds White's reliance on Wixom to be misplaced, as that case clarifies that a state prisoner's conviction becomes final upon the conclusion of direct review or the expiration of the time for seeking such review, which is distinct from the issue of tolling under § 2244(d)(2). Multiple circuit court rulings, including Nara, Snow, Isham, Gutierrez, and Ott, have established that the statute of limitations under § 2244(d)(2) is not tolled for the period during which a state prisoner could have sought a writ of certiorari from the U.S. Supreme Court.
Moreover, tolling under § 2244(d)(2) applies only while a properly filed application for state post-conviction or collateral review is pending. A petition for a writ of certiorari to the U.S. Supreme Court does not qualify as a state application. The court emphasizes that pursuing a federal writ does not constitute exhausting state court remedies, thus rejecting White's argument for tolling based on his potential certiorari filing.
Additionally, under 48 U.S.C. § 1424-2, the court has jurisdiction to review decisions from the Supreme Court of Guam via a writ of certiorari, which must be filed within 21 days of the final decision. However, such a petition filed in this court does not toll the time for White to submit his federal habeas petition, as it is considered a federal, not a state, application for review.
White argues for tolling the statute of limitations from December 28, 1998, to November 2, 1999, based on his alleged attempt to file a petition for a writ of certiorari. He claims that a timely filed certiorari petition would toll the statute of limitations under § 2244(d)(2). However, the court asserts this assumption is incorrect, stating that pursuing certiorari does not constitute exhausting territorial remedies.
White may qualify for equitable tolling if he demonstrates extraordinary circumstances preventing him from timely filing his federal habeas petition. He claims to have diligently attempted to file his certiorari petition, but the court clarifies that even if extraordinary circumstances exist, they do not toll the filing time for his federal habeas petition because certiorari review is not part of the state review process for tolling purposes under 28 U.S.C. § 2244(d)(2). No additional arguments or facts supporting his equitable tolling claim were presented.
The court affirms the lower court’s decision, noting that the Supreme Court of Guam's decision is final upon its ruling, not the entry of the mandate. White's contention that the decision was not final until the mandate was entered is dismissed, as the finality of an appellate court's decision is determined by the ruling itself, not subsequent procedural actions.
Decisions made by the Supreme Court of Guam can be reviewed by the United States Supreme Court through a writ of certiorari, akin to the review process for state supreme court decisions, as outlined in 48 U.S.C. § 1424-2. This section mandates that for 15 years following the establishment of the Supreme Court of Guam, its decisions will be reviewed by the Ninth Circuit until the court establishes sufficient institutional traditions for direct U.S. Supreme Court review. Recently, the Pacific Islands Committee of the Judicial Council of the Ninth Circuit suggested that this 15-year review period be shortened or removed.
In the context of White's federal habeas petition, filed over 21 days late, there is a dissenting opinion from Circuit Judge Berzon. The dissent argues that while the majority's interpretation of the statute is plausible, an alternative reading is more consistent with the statutory language and overall framework. Berzon raises concerns regarding the practical implications of ending the tolling period after the final state appeal, particularly when a timely certiorari petition may have been filed. If the case were to be accepted for hearing but not decided within a year, the petitioner could face the dilemma of having simultaneous petitions in federal courts, which seems inefficient and contrary to congressional intent.
The dissent emphasizes that the statute specifies tolling only for "properly filed application for State post-conviction or other collateral review." It suggests that while White's application qualifies as a state post-conviction relief application, it could still be considered "pending" until any certiorari petition related to it is resolved. Therefore, even after state court proceedings are completed, the application remains pending as it awaits final decision, preserving its status as a state habeas proceeding.
Duncan v. Walker, 533 U.S. 167 (2001) clarifies that federal habeas petitions do not toll the limitations period because they do not qualify as "applications for State post-conviction or other collateral review" under 28 U.S.C. § 2244(d)(2). In contrast, state habeas applications are considered "State post-conviction review," regardless of their status in state or federal courts. This interpretation honors the term "State" and allows for federal consideration of state cases raising federal issues. The ruling distinguishes federal review under 28 U.S.C. § 2254 from certiorari jurisdiction, emphasizing that the Supreme Court does not review federal post-conviction applications when considering state habeas petitions.
Further clarity is provided by 28 U.S.C. § 2263(b), which contains specific tolling provisions for capital cases in "opt-in" states. This statute explicitly excludes the certiorari petition filing period from the limitations period, unlike § 2244(d)(2), which does not include language about ending tolling upon final state court disposition. The inclusion of such language in § 2263(b)(2) implies Congress intended a different tolling approach compared to § 2244(d)(2), leading to potential confusion regarding simultaneous petitions. This distinction aims to address delays in death penalty cases and recognizes that appointed counsel are generally more informed about procedural rules than unrepresented prisoners. Overall, the differences in language between the two sections suggest intentional legislative choices regarding tolling periods and limitations.
A state habeas petition remains "pending" when a prisoner files a petition for a writ of certiorari, as per Guam Rule of Appellate Procedure 28(c). This rule prevents the Guam Supreme Court from issuing its mandate on the habeas petition while the higher court review is possible. The excerpt discusses varying interpretations among circuits regarding the tolling of the statute of limitations under § 2244(d)(2). The Third Circuit indicated that a filed petition for certiorari tolls the limitations period, while the Seventh Circuit held that the time a prisoner could have filed but did not does not toll it. The excerpt suggests that the determination of whether a case is "pending" may depend on the filing status of the certiorari petition.
It also notes that the outcome of the case remains unaffected by whether the Guam Supreme Court's decision finalized before or after the mandate was issued, as the petitioner did not file until after the one-year limit. Furthermore, while the majority opinion references Wixom, which interprets § 2244(d)(1), the excerpt argues that Bunney, which deals with § 2244(d)(2), may be more relevant because it clarifies that a decision does not become final until after a designated period for further action, aligning with Guam's rules.
