F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 17 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CHRISTOPHER TODD WILLIAMS,
Petitioner - Appellant,
vs. No. 00-6014
GARY GIBSON; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 98-CV-1714-T)
Gloyd L. McCoy, Coyle & McCoy, Oklahoma City, Oklahoma, for Petitioner -
Appellant.
Diane L. Slayton, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General, with her on the brief), Oklahoma City, Oklahoma, for Respondents -
Appellees.
Before SEYMOUR, Chief Judge, KELLY, and HENRY, Circuit Judges.
KELLY, Circuit Judge.
Petitioner-Appellant Christopher Todd Williams appeals from the district
court’s dismissal of his habeas petition as time barred. We reverse and remand
for disposition on the merits.
Mr. Williams was convicted in Oklahoma district court on two counts of
first degree murder and one count of possession of a firearm by a convicted
felon. He appealed to the Oklahoma Court of Criminal Appeals (OCCA), which
affirmed his conviction on April 16, 1997. Mr. Williams’ petition for certiorari
was denied by the United States Supreme Court on October 20, 1997. At this
point, Mr. Williams’ one-year time period for filing a habeas petition began to
run. See 28 U.S.C. § 2244(d); see also Rhine v. Boone , 182 F.3d 1153, 1155
(10th Cir. 1999).
Therefore, in the absence of any tolling, Mr. Williams’ statutory time limit for
filing his habeas petition would have run on October 21, 1998.
Under 28 U.S.C. § 2244(d)(2), however, a court tolls the one-year period
for “[t]he time during which a properly filed application for State post-conviction
or other collateral review . . . is pending . . . .” Mr. Williams filed an application
for state post-conviction relief on August 3, 1998, 1
tolling the limitations period
with seventy-eight days remaining. This application was denied on September 9,
1
The briefs and the record are unclear as to the specific date on which Mr.
Williams filed his state post-conviction application. In his brief, Mr. Williams
alternatively refers to the date as August 3 and August 20, 1998. Compare Aplt.
Br. at 4 with id. at 6. However, the government refers to the date as August 3,
see Aplee. Br. at 2, and because neither date is determinative of the outcome, we
will employ August 3 as the correct date of filing.
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1998, and Mr. Williams filed a timely notice of appeal to the OCCA on
September 18, 1998. However, Mr. Williams failed to comply with Rule
5.2(C)(2) of the Oklahoma Court of Criminal Appeals, which requires a
petitioner to file a petition in error and supporting brief within thirty days of the
final order of the district court. Accordingly, the OCCA dismissed the appeal on
October 30, 1998, on the basis that “[m]ore than thirty (30) days has [sic] passed
since the District Court’s order was filed in the District Court, and no Petition in
Error or supporting brief has been filed.” Williams v. Oklahoma , No. PC 98-
1068, at 2 (Okla. Crim. App. Oct. 30, 1998) (Aplee. App. at 38-39). The instant
habeas petition was filed on December 17, 1998.
The question for us to resolve is whether Mr. Williams’ appeal before the
OCCA was “properly filed” so as to toll the limitations period under 28 U.S.C. §
2244(d)(2). If the appeal was not properly filed, then only the thirty-seven days
from August 3 to September 9, 1998, are tolled. In that case, the one-year
limitations period would have expired on November 26, 1998, making the habeas
petition untimely. However, if the appeal was properly filed, then the time
period was tolled until the OCCA dismissed the appeal on October 30, 1998. Mr.
Williams would then have had until January 16, 1999, to file and the instant
habeas petition (December 17, 1998) would be timely.
The resolution of this case is governed by our recent decision in
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Habteselassie v. Novak , 209 F.3d 1208 (10th Cir. 2000). In that case, we held
that a “‘properly filed’ application is one filed according to the filing
requirements for a motion for state post-conviction relief. See Adams v.
Lemaster , No. 99-2348, 2000 WL 1174646, at *3 (10th Cir. Aug. 18, 2000).
These requirements may include: [time, place, filing fee, and judicial
authorization requirements, as well as] (4) other conditions precedent that the
state may impose upon the filing of a post-conviction motion.” Id. at 1210-11.
However, Habteselassie made it clear that “conditions precedent” do not include
state procedural bars. “[A] state petition that is dismissed on the basis of
procedural default does not render the petition not ‘properly filed’ . . . .” Id. at
1213. Therefore, we must decide whether the filing of a petition in error and
supporting brief is a condition precedent or a procedural bar.
The state argues that the requirements of Rule 5.2(C) are jurisdictional,
and should be viewed as “a condition precedent to the Court entertaining such an
appeal.” Aplee. Br. at 8. It cites to Duvall v. Oklahoma , 869 P.2d 332, 334
(Okla. Crim. App. 1994) where the OCCA said: “Appellant has failed to file a
Petition in Error with the Clerk of this Court. This, too, is jurisdictional.” See
also Shown v. Boone , No. 95-6108, 1995 WL 330752, at *2 (10th Cir. June 5,
1995) (citing Duvall ). However, Duvall was interpreting Rule 5.2(C) prior to its
1994 amendments. The old rule stated: “Failure to file a petition in error, with or
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without a brief, within the time provided, shall bar this Court from considering
the appeal.” See Duvall , 869 P.2d at 333 (citing old rule). This rule was no
longer in effect when Mr. Williams filed his appeal to the OCCA.
The current version of Rule 5.2(C), which was quoted verbatim in the
OCCA’s order dismissing Mr. Williams’ appeal, states: “Failure to file a petition
in error, with a brief, within the time provided, shall constitute a procedural bar
for this Court to consider the appeal.” Rule 5.2(C)(5). Given the new language
of Rule 5.2(C)(5) and the OCCA’s order, it is clear that Mr. Williams’ appeal
was “properly filed” when he filed the Notice of Appeal, and that the OCCA
subsequently dismissed the appeal as a matter of state procedural bar.
Our approach is consistent with Mills v. Norris , 187 F.3d 881 (8th Cir.
1999). In that case, the petitioner filed a Notice of Appeal from the trial court’s
denial of his application for post-conviction relief, but never filed the record.
See id. at 882. The court held that despite the petitioner’s failure to perfect his
appeal, the appeal was still pending for § 2244(d)(2) purposes. See id. at 884.
To reach this conclusion, the court relied on the “plain language” of the relevant
state court rule, 2
which provided that the “[f]ailure of appellant to take any
Although the Mills court indicated that whether an application for state
2
post-conviction relief is “pending” for 2244(d)(2) purposes is “an issue of federal
law,” id. at 883, we need not reach that issue. See Fernandez v. Starnes, No. 99-
2887, 2000 WL 1358730, at *2 (7th Cir. Sept. 21, 2000) (deciding time period a
properly filed petition was pending where the state court excused an untimely
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further steps to secure the review of the appealed conviction shall not affect the
validity of the appeal but shall be ground only for such action as the Supreme
Court deems appropriate, which may include dismissal of the appeal.” Mills , 187
F.3d at 883 (quoting Ark. Crim. R. App. P. 2(e)).
Similarly, the plain language of OCCA’s rule is dispositive in this case.
Despite the state’s contention that Rule 5.2(C)(5) does not mean what it says, we
must take the plain language of the rule at face value. Rule 5.2(C)(5) provides
that a failure to file a petition in error and a brief “shall constitute a procedural
bar.” We cannot ignore this language. Therefore, Mr. Williams’ appeal was
“properly filed” as specified in Habteselassie, and Mr. Williams’ habeas petition
was timely. 3
REVERSED and REMANDED for further disposition on the merits.
filing).
To the extent Walker v. Saffle, Nos. 98-7125, 98-7144, 1999 WL 178702
3
(10th Cir. Apr. 1, 1999) holds otherwise, it was decided before Habteselassie, is
unpublished, and is not binding on this panel.
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