UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6719
SAMUEL E. HARRIS,
Petitioner - Appellant,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:04-cv-00070-MHL)
Argued: March 18, 2008 Decided: June 26, 2008
Before MICHAEL and GREGORY, Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
Reversed and remanded by unpublished per curiam opinion.
ARGUED: Sarah M. Brackney, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Appellant. Alice T. Armstrong, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:
Jeffrey L. Handwerker, ARNOLD & PORTER, L.L.P., Washington, D.C.,
for Appellant. Robert F. McDonnell, Attorney General of Virginia,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel E. Harris, a Virginia state prisoner, appeals the
district court’s dismissal of his petition seeking a writ of habeas
corpus under 28 U.S.C. § 2254. The court held that Harris’s
petition was filed outside the one-year limitations period
established by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). This determination was based on the court’s
conclusion that a petition for a writ of mandamus that Harris filed
in state court did not qualify as a “properly filed application for
State post-conviction or other collateral review with respect to”
his underlying conviction and, thus, did not toll AEDPA’s
limitations period. See 28 U.S.C. § 2244(d)(2). We conclude that
the district court erred by not recognizing that the limitations
period was tolled during the pendency of Harris’s state mandamus
petition. When this tolling is taken into account, his federal
habeas petition is timely. Accordingly, we reverse and remand for
consideration of the merits of Harris’s petition.
I.
Following a guilty plea, Harris was convicted of several
felony charges in Virginia state court. He was ultimately
sentenced to serve 220 years in prison, with 160 years suspended.
He appealed to the Court of Appeals of Virginia, but that court
rejected his claims on September 13, 2001. His conviction became
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final for purposes of AEDPA on October 15, 2001, the day on which
his time for appealing to the Supreme Court of Virginia expired.
See 28 U.S.C. § 2244(d)(1)(A).
On February 13, 2002, Harris filed a pro se Petition for
Writ of Mandamus in state circuit court. The petition asserted
that Harris had received ineffective assistance of counsel prior to
his guilty plea, that he would not have pled guilty but for his
counsel’s deficient performance, and that his guilty plea was thus
invalid. The circuit court dismissed the mandamus petition on
December 6, 2002.1 Meanwhile, on August 8, 2002, Harris filed in
state circuit court a separate pro se Petition of Writ of Habeas
Corpus, which also asserted that his guilty plea was invalid due to
ineffective assistance of counsel. The circuit court denied this
petition on November 1, 2002. Harris filed a petition for appeal
of the denial of habeas relief to the state supreme court, which
that court denied on July 21, 2003.
Harris, still proceeding pro se, filed a petition for a
writ of habeas corpus in U.S. district court on January 18, 2004.
Upon consent of the parties, the case was assigned to a magistrate
judge pursuant to 28 U.S.C. § 636(c)(1). The state moved to
1
Harris also filed a mandamus petition with the state supreme
court on April 25, 2002. The court dismissed that petition on
September 30, 2002. Because the circuit court mandamus petition
was pending during the entire time the supreme court petition was
pending, there is no reason to separately consider the tolling
effect of the supreme court petition.
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dismiss Harris’s petition as untimely, and the district court, in
a decision rendered by the magistrate judge, ultimately granted the
state’s motion based on the determination that the mandamus
petition Harris filed in state court did not toll the AEDPA
limitations period. Harris appealed to this court, and we granted
a certificate of appealability on the tolling issue.2
II.
Under AEDPA a state prisoner has one year to file a
petition for a writ of habeas corpus in federal court. 28 U.S.C.
§ 2244(d)(1). This one-year period is tolled while a “properly
filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.”
§ 2244(d)(2). In this case the parties agree that Harris’s habeas
petition tolled his one-year period for filing while it was pending
in state court between August 8, 2002, and July 21, 2003. However,
even taking this into account, Harris’s federal habeas petition is
untimely unless his mandamus petition also tolled the AEDPA
limitations period. The parties agree that if the mandamus
2
The state argues that we should not address the tolling issue
because in the underlying plea agreement Harris allegedly waived
the right to seek withdrawal of his guilty plea. We disagree. The
scope and validity of the waiver in Harris’s plea agreement relates
to the merits of his ineffective assistance claim and may be
properly addressed in the first instance on remand.
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petition tolled the limitations period, Harris’s federal habeas
petition is timely.
Both this court and the Supreme Court of the United
States have set forth parameters for determining whether a state
court filing qualifies as a “properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment” within the meaning of § 2244(d)(2). We have
held that “the term ‘collateral review’ refers to a proceeding
separate and distinct from that in which the original judgment was
rendered, and in which the petitioner challenges the legality of
the original judgment.” Walkowiak v. Haines, 272 F.3d 234, 237
(4th Cir. 2001). The Supreme Court has explained that an
application for collateral review “is ‘properly filed’ when its
delivery and acceptance are in compliance with the applicable laws
and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8
(2000). Filing rules include “the form of the document, the time
limits upon its delivery, the court and office in which it must be
lodged, and the requisite filing fee.” Id. The Supreme Court has
distinguished these filing rules, or “condition[s] to filing,” from
a separate category of “condition[s] to obtaining relief,” which
includes procedural bars that prevent certain claims from being
raised or considered. Id. at 10-11. With respect to the latter
category, the Court has rejected the argument that an application
for relief was not “properly filed” simply because the claims it
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advanced were procedurally barred. As the Court explained, “the
question whether an application has been ‘properly filed’ is quite
separate from the question whether the claims contained in the
application are meritorious and free of procedural bar.” 531 U.S.
at 9; see also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)
(noting that there is an “obvious distinction between time limits,
which go to the very initiation of a petition and a court’s ability
to consider that petition, and the type of ‘rule of decision’
procedural bars at issue in Artuz, which go to the ability to
obtain relief.”)
Applying these standards to this case, we agree with
Harris that his mandamus petition tolled the AEDPA limitations
period under § 2244(d)(2). The petition qualifies as an
application for collateral review because it initiated a “separate
and distinct proceeding” and sought to challenge the validity of
the underlying conviction. See Walkowiak, 272 F.3d at 237. The
petition was also “properly filed” because it complied with the
“applicable laws and rules governing filing” in that it was timely,
formatted in an acceptable manner, and filed in a court with
jurisdiction to consider the petition (even if it lacked
jurisdiction to grant the relief requested). See Artuz, 531 U.S.
at 8. Therefore, the requirements for tolling under § 2244(d) are
satisfied.
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The arguments against tolling do not withstand scrutiny.
The district court based its decision on the fact that, under
Virginia law, a writ of mandamus will not be granted “when there is
any other adequate legal remedy available to the applicant.” J.A.
67 (quoting Durkin v. Davis, 538 F.2d 1037, 1042 (4th Cir. 1976)
(quoting Board of Supervisors v. Combs, 169 S.E. 589, 593 (Va.
1933))). As the district court correctly observed, Harris was
ineligible for mandamus relief because the state provided another
procedural avenue -- habeas corpus -- for him to assert his claim.
Based on this “procedural structure,” the district court concluded
that “a petition for a writ of mandamus, regardless of its content,
does not constitute an application for ‘collateral review with
respect to the pertinent judgment’ under § 2244(d)(2).” J.A. 68.
The Third Circuit appears to have reached a similar conclusion in
Satterfield v. Johnson, 434 F.3d 185, 192-95 (2006), which held
that a prisoner’s application for extraordinary relief did not toll
the limitations period under § 2244(d)(2) in part because
Pennsylvania law provided an alternative mechanism as the exclusive
means to collaterally attack a conviction.
This line of reasoning is inconsistent with Supreme Court
precedent. In Artuz the Court explicitly rejected the argument
that an application for collateral review “is not ‘properly filed’
for purposes of § 2244(d)(2) unless it complies with all mandatory
state-law procedural requirements that would bar review of the
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merits of the application.” 531 U.S. at 8. The Court explained
that a petition can qualify as a “properly filed application” for
collateral review even if the claims contained in the petition lack
merit due to a state law procedural bar; for instance, state law
barred the petitioner in Artuz from raising a claim in a
postconviction proceeding when that claim had been previously
determined on the merits in a direct appeal. Id. at 9-11. The
Virginia rule of law that made mandamus relief unavailable to
Harris, like the rule at issue in Artuz, speaks to the availability
of the relief requested rather than the petitioner’s ability to
initiate the proceedings in the first instance. For this reason,
the procedural bar that Harris confronted is a “condition to
obtaining relief,” not a “condition to filing,” and thus does not
render his petition improperly filed for purposes of § 2244(d)(2).
In other words, under Artuz the question of whether mandamus relief
was ultimately available to Harris under Virginia law is simply not
relevant to determining whether his application for mandamus relief
tolled the limitations period under § 2244(d)(2).
The Commonwealth argues in the alternative that Harris’s
mandamus petition was not “properly filed” because he did not
provide the notice required by Va. Code § 8.01-644. That provision
says that an application for a writ of mandamus is to be made
“after the party against whom the writ is prayed has been served
with a copy of the petition and notice of the intended application
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a reasonable time before such application is made.” The
Commonwealth did not raise this argument before the district court
and, as we have held, the “[f]ailure to raise an argument before
the district court typically results in the waiver of that argument
on appeal.” United States v. Benton, 523 F.3d 424, 428 (4th Cir.
2008). Moreover, we agree with Harris that his failure to comply
with the notice requirement does not render his mandamus petition
improperly filed for purposes of § 2244(d)(2) because the notice
requirement constitutes a “condition to obtaining relief” under
Artuz rather than a “condition to filing.” In denying Harris’s
petition, the Virginia circuit court did not call into question its
ability to consider the availability of the relief requested. See
Pace, 544 U.S. at 417 (explaining that filing requirements “go to
the very initiation of a petition and a court’s ability to consider
that petition”). Instead, it listed several reasons why Harris
could not obtain mandamus relief, including the unavailability of
mandamus to compel the performance of discretionary acts as well as
Harris’s non-compliance with the notice requirement of § 8.01-644.
Although Virginia case law on § 8.01-644 is sparse, the circuit
court’s treatment of the provision appears consistent with that of
the Commonwealth’s intermediate appellate court, which has
characterized the provision as a “procedural requirement[] for
obtaining” a writ of mandamus. See Hutchins v. Carrillo, 500
S.E.2d 277, 284 (Va. Ct. App. 1998). Given this characterization,
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we conclude that the notice requirement operates as a “condition to
obtaining relief” under state law. This conclusion is buttressed
by Artuz, where the Supreme Court did not include notice
requirements among its list of the “laws and rules governing
filings.” 531 U.S. at 8. The Commonwealth’s argument therefore
lacks merit under Artuz.
Finally, the Commonwealth argues that tolling the
limitations period in this case “‘would turn § 2244(d)(2) into a de
facto extension mechanism, quite contrary to the purpose of AEDPA,
and open the door to abusive delay.’” Appellee’s Br. 14 (quoting
Pace, 544 U.S. at 413). These concerns are unfounded. Not every
prisoner submission will toll the limitations period under
§ 2244(d)(2). As the Eleventh Circuit has said, “Congress enacted
§ 2244(d)(2) to allow the deadline for federal filings to be tolled
when a prisoner legitimately pursues state remedies in good faith,
and did not intend it to be triggered simply because a prisoner
mailed nonsense to a state court.” Sibley v. Culliver, 377 F.3d
1196, 1201 (11th Cir. 2004). Harris’s petition was not mere
nonsense; instead, as explained above, it initiated a separate and
distinct legal proceeding and expressly challenged the validity of
his conviction, as contemplated by § 2244(d)(2). Moreover,
although Virginia law precluded Harris from obtaining a writ of
mandamus, nothing in the record suggests that Harris, a pro se
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litigant, acted in bad faith or for purposes of delay when filing
his mandamus petition.
In sum, we hold that the mandamus petition Harris filed
in state circuit court constitutes a “properly filed application
for State post-conviction or other collateral review with respect
to” his underlying conviction within the meaning of 28 U.S.C.
§ 2244(d)(2). We reject the argument that Harris is ineligible for
tolling under § 2244(d)(2) simply because he initially asserted his
claims by seeking mandamus, when under Virginia law he should have
instead pursued habeas corpus relief. While Harris’s mistake
rendered his petition subject to a state-law procedural bar, the
mistake did not render his petition improperly filed for purposes
of § 2244(d)(2) because under Artuz the state’s procedural bar
operates as a “condition to obtaining relief,” not a “condition to
filing.” Therefore, Harris’s federal habeas petition is timely,
and he is entitled to consideration of the merits of his petition
on remand.
* * *
The district court’s order dismissing Harris’s petition
for a writ of habeas corpus is
REVERSED AND REMANDED.
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