United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2755
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Stanley Isaac Nelson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director of the Arkansas *
Department of Correction, *
*
Appellee. *
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Submitted: June 18, 2010
Filed: August 26, 2010
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Before SMITH and HANSEN, Circuit Judges, and WEBBER,1 District Judge.
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SMITH, Circuit Judge.
Stanley Nelson, an Arkansas inmate convicted of discharging a firearm from
a vehicle and sentenced to 30 years' imprisonment, appeals the district court's2 order
dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254 as untimely.
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri, sitting by designation.
2
The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred pursuant to the consent
of the parties. See 28 U.S.C. § 636(c)(1).
We granted Nelson's application for certificate of appealability to determine the
following questions:
1. Whether Nelson's application for a writ of habeas corpus under 28
U.S.C. Section 2254 was timely filed in the district court, because
Nelson's petition for state post-conviction relief under Ark. R.
Crim. P. 37 was "properly filed" in the Arkansas Circuit Court
within the meaning of 28 U.S.C. Section 2244(d)(2), and the
statue of limitations of 28 U.S.C. [Section] 2244(d)(1) was
therefore tolled while the Rule 37 petition was pending in the state
court.
2. Whether, even if Nelson's Rule 37 petition was not "properly
filed" in the Arkansas Circuit Court, Nelson's application under 28
U.S.C. Section 2254 was timely filed in the district court, because
the statute of limitations of 28 U.S.C. Section 2244(d)(1) should
be equitably tolled.
We hold that (1) Nelson's unverified Rule 37 petition did not toll the running
of the one-year statute of limitations for filing a federal habeas petition because the
petition was not filed in accordance with Rule 37's verification requirement and (2)
Nelson is not entitled to equitable tolling. Accordingly, we affirm the district court's
judgment.
I. Background
Nelson was convicted of unlawful discharge of a firearm in state court and
sentenced to 30 years' imprisonment. The Arkansas Court of Appeals affirmed
Nelson's conviction and sentence. Nelson v. State, No. CACR 02-867, 2003 WL
21019602 (Ark. Ct. App. May 7, 2003) (unpublished) ("Nelson I"). On June 19, 2003,
the Arkansas Supreme Court denied Nelson's petition for discretionary review.
On August 15, 2003, Nelson filed a petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37 with the state trial court. The petition was
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signed and verified only by Nelson's postconviction counsel—not by Nelson
personally. The state trial court, after a hearing on the merits, denied Nelson's request
for relief under Rule 37.
Nelson then appealed to the Arkansas Supreme Court, which declined to reach
the merits of his arguments on appeal
because appellant's petition was not properly verified. Arkansas Rule of
Criminal Procedure 37.1(d) requires that the petition be verified. The
verification requirement for a postconviction relief petition is of
substantive importance to prevent perjury. Carey v. State, 268 Ark. 332,
596 S.W.2d 688 (1980). To serve this purpose, a petitioner must execute
the verification, and if the petitioner is represented by counsel, counsel
may not sign and verify the petition for him. Boyle v. State, 362 Ark.
248, 208 S.W.3d 134, [sic] (2005) (per curiam).
Nelson v. State, 213 S.W.3d 645, 646 (Ark. 2005) ("Nelson II"). Because Nelson's
"petition was not verified as required by Ark. R. Crim. P. 37.1(d)," the Arkansas
Supreme Court dismissed the petition. Id.
Nelson filed a petition for rehearing, contending that the Arkansas Supreme
Court erred in dismissing his appeal because Boyle had not been decided at the time
that he filed his Rule 37 petition. Nelson v. State, No. CR 04-732, 2005 WL 3074381,
at *1 (Ark. Nov. 17, 2005) (unpublished per curiam) ("Nelson III"). According to
Nelson, "application of Boyle retroactively would violate due process in that
appellant's counsel should have been permitted to verify the petition on behalf of the
petitioner until that decision provided notice of the requirement." Id. The Arkansas
Supreme Court disagreed, stating:
Appellant argues that there has been a practice to allow counsel to verify
pleadings on behalf of the client, citing a civil case in support. He further
cites Ark. R. Civ. P. 11 for the proposition that an attorney's signature is
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a veritable verification. This court has recognized that postconviction
relief proceedings are civil in nature and applied the Rules of Appellate
Procedure-Civil when necessary. Sanders v. State, 352 Ark. 16, 98
S.W.3d 35 (2003). In Sanders, however, we declined to apply a rule of
civil procedure, Ark. R. Civ. P. 56, to criminal cases. Id. at 25, 98
S.W.3d at 41. We do not apply Ark. R. Civ. P. 11 here, as Ark. R. Crim.
P. 37.1(d) very clearly requires that the petition must be verified.
The basis for permitting an attorney to simply sign pleadings in civil
cases, and not cause the pleading to be verified, is not applicable to
postconviction proceedings, and our case law has provided ample notice
to that effect, well before Boyle. As the State points out in its brief, the
concern with the potential for perjury is heightened in a postconviction
proceeding where the attorney's client has already been convicted and is
incarcerated. Moreover, the attorney representing the petitioner under
Ark. R. Crim. P. 37.1 almost certainly did not represent that petitioner at
trial; the trial attorney's conduct must be throughly [sic] examined and
questioned by counsel for a petitioner under Ark. R. Crim. P. 37.1. The
attorney in a postconviction proceeding would have no personal
knowledge of many of the facts in the petition to be verified.
It is well settled that the verification requirement for a
postconviction-relief petition is of substantive importance to prevent
perjury. Shaw v. State, ___Ark.___,___ S.W.3d___(June 30, 2005) (per
curiam) (citing Bolye [sic] and Knappenberger v. State, 278 Ark. 382,
647 S.W.2d 417 (1983)); Worthem v. State, 347 Ark. 809, 66 S.W.3d
665 (2002) (per curiam); Carey v. State, 268 Ark. 332, 596 S.W.2d 688
(1980). That purpose is not served where counsel verifies the petition on
behalf of his client. Appellant urges that this requirement that the
petitioner personally verify his petition was a new and unforeseeable rule
of law, but, prior to Boyle, this court stated that postconviction relief as
sought through a petition under Rule 37.1 "requires that the petitioner be
in custody and that the petition be verified by the petitioner." Westbrook
v. State, 286 Ark. 192, 691 S.W.2d 123 (1985) (emphasis added). Boyle
merely confirmed a position already announced by this court, one that
should not have been unexpected. As there was no error of law or fact in
the opinion, we must deny appellant's petition for rehearing.
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Id. at *1–2 (emphasis added in part).
On August 21, 2006, Nelson filed a petition for federal habeas relief pursuant
to 28 U.S.C. § 2254, alleging that he was denied a fair and impartial trial, the evidence
is insufficient to support the verdict, his sentence is cruel and unusual, his conviction
was obtained by false testimony, and his trial counsel was ineffective. In response, the
State argued that Nelson's petition was time barred by the one-year statute of
limitations in 28 U.S.C. § 2244(d)(1) and that he was not entitled to statutory tolling
for the time during which his petition for state collateral relief was pending because
his petition did not meet the verification requirements of Rule 37 and thus was not
"properly filed." The State additionally argued that Nelson had not asserted in his
habeas petition that he was entitled to equitable tolling. The district court gave Nelson
an opportunity to reply within 30 days to the arguments raised in the State's response.
The court then ordered the State to submit a supplemental brief on whether
Boyle was firmly established and regularly followed at the time that Nelson filed his
Rule 37 petition. In its supplemental response, the State explained:
The United States Court of Appeals for the Eighth Circuit addressed the
issue of whether a state rule regarding post-conviction[ ] petitions must
be firmly established and regularly followed before it has any effect on
the statute of limitations found in 28 U.S.C. § 2244, in their decision in
Walker v. Norris, 436 F.3d 1026 (8th Cir. 2006). It is clear, from that
decision, that Petitioner is not entitled to statutory tolling, however, it
appears that this Court is interested in whether he is entitled to equitable
tolling.
According to the State, "[t]he Arkansas Rule requiring a post-conviction petition to
be verified has been in effect for at least the last 26 years," and Nelson's
post-conviction counsel's error in not recognizing that rule did not entitle Nelson to
equitable tolling. Nelson failed to reply to the State's supplemental response.
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The district court dismissed Nelson's habeas petition, finding that Nelson's case
was precluded by Walker, where this court held that an "unverified petition was not
'properly filed' for purposes of tolling the limitations period." Haliburton v. Norris,
No. 5:05CV00306 WRW/JTR, 2007 WL 2343872, at *4 (E.D. Ark. Aug. 13, 2007)
(unpublished order) (citing Walker, 436 F.3d at 1031).
Nelson then filed a motion for relief from judgment under Federal Rule of Civil
Procedure 60. Nelson argued that the district court overlooked and thus failed to
address his equitable-tolling argument. In response, the State argued that the court
should dismiss Nelson's equitable-tolling claim because his Rule 60 motion was a
successive habeas petition; in the alternative, the State contended that Nelson failed
to make the required showing of exceptional circumstances to warrant relief under
Rule 60. Nelson replied that his Rule 60 motion was not a successive petition.
The district court concluded that Nelson's Rule 60 motion was not a successive
petition but nonetheless denied relief. The court noted that, although Nelson
mentioned equitable tolling in his motion for extension of time to reply to the State's
supplemental response to the petition and in his motion for reconsideration of the
court's order denying counsel, "he offered no support for such a claim and the court
simply did not consider it as having been properly raised." Alternatively, the court
held that even if Nelson had properly raised his argument, he was not entitled to
equitable tolling because Arkansas's verification requirement had long been the rule
of law even before Boyle and that the application of a state's procedural rule is not an
extraordinary circumstance that warrants equitable tolling.
II. Discussion
We first address whether Nelson's habeas petition was timely filed in the district
court. The timeliness of Nelson's habeas petition depends upon whether Nelson's
petition for state postconviction relief under Rule 37 was "properly filed" in the state
trial court within the meaning of § 2244(d)(2). If Nelson "properly filed" his Rule 37
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petition, then the statute of limitations of § 2244(d)(1) was tolled while his Rule 37
petition was pending in state court. If we conclude that Nelson's Rule 37 petition was
not "properly filed," then we must address whether Nelson is entitled to equitable
tolling of the statute of limitations of § 2244(d)(1).
A. Statutory Tolling
Nelson argues that he is entitled to statutory tolling of the one-year statute of
limitations because his state court petition for postconviction relief was "properly
filed" under Artuz v. Bennett, 531 U.S. 4 (2000). According to Nelson, his petition
filed under Rule 37 was "properly filed" because the rule announced in Boyle—that
the petitioner must personally verify a Rule 37 motion and that a lawyer's verification
is insufficient—was not firmly established, regularly followed, and consistently
applied to bar federal habeas review. Nelson contends that if a rule does not meet
these requirements, it should not bar federal habeas review in the statute-of-limitations
context.
In response, the State contends that Nelson's petition for postconviction relief
pursuant to Rule 37 was not "properly filed" for purposes of statutory tolling because
the personal-verification requirement applied by the Arkansas Supreme Court is a
"condition to filing" and, pursuant to Walker, this court does not look beyond the state
court's application of the rule to determine whether Nelson's petition was "properly
filed." Additionally, the State argues that the Arkansas Supreme Court's willingness
to reach the merits of other unverified petitions does not make Nelson's petition
"properly filed" for statutory tolling purposes.
This court has "jurisdiction to review a district court's ruling on
'preliminary procedural issues, such as [a] limitations question' [and]
review[s] the district court's interpretation of the one-year AEDPA
limitation provision de novo." Williams v. Bruton, 299 F.3d 981, 982
(8th Cir. 2002) (quoting Nichols [v. Bowersox], 172 F.3d [1068,] 1070
n.2 [(8th Cir. 1999) (en banc)]). The AEDPA establishes a one-year
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statute of limitations for filing federal habeas corpus petitions which runs
from "the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review." 28
U.S.C. § 2244(d)(1)(A). The statute of limitations is tolled, however,
while "a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is
pending." Id. § 2244(d)(2).
Walker, 436 F.3d at 1029–30.
Here, Nelson's conviction became final on September 17, 2003—90 days after
the Arkansas Supreme Court denied his petition for review. See Smith v. Bowersox,
159 F.3d 345, 347–48 (8th Cir. 1998) (stating that if petitioner does not seek certiorari
from United States Supreme Court, the conviction becomes final upon expiration of
time for petitioning for certiorari). Nelson filed his federal habeas petition almost three
years later, on August 21, 2006. But, Nelson's Rule 37 proceeding was pending from
August 15, 2003, until November 17, 2005. If that time period is excluded from the
limitations period, only 277 days accrued toward the limitations period when Nelson
filed his federal petition. See 28 U.S.C. § 2244(d)(2) (providing 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 toward
any period of limitation under this subsection").
Unfortunately, Nelson's argument for statutory tolling is foreclosed by Walker.
In Walker, the petitioner's Rule 37 motion was dismissed because he did not notarize
his verification. The petitioner cited cases in which the state courts had denied
unverified motions on the merits, arguing that the verification requirement was not
firmly established, regularly followed, and consistently applied. 436 F.3d at 1029. We
disagreed, noting that courts might deny a motion on the merits notwithstanding its
untimeliness. Id. at 1031 (citing Carey v. Saffold, 536 U.S. 214, 225–26 (2002)).
Further, we explained that the Arkansas Supreme Court's determination that the
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motion was invalid was the "'end of the matter.'" Id. at 1032 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 414 (2005)). Thus, under Walker, if a state court finds
that a motion fails to comply with filing requirements, that motion is not "properly
filed," regardless of whether those filing requirements are firmly established and
regularly followed. See Brian R. Means, Federal Habeas Manual § 9A:48 (2008)
("Analysis of the independence or adequacy of the state's procedural bar is not
relevant to whether the state petition was properly filed. In other words, if the
petitioner failed to meet a 'condition to filing,' whether that 'condition to filing' is
adequate and independent under procedural default jurisprudence is not relevant.")
(citing, inter alia, Walker, 436 F.3d at 1030–32).
Here, the Arkansas Supreme Court specifically held that Nelson's Rule 37
petition was not properly verified because Nelson did not execute the verification.
Nelson II, 213 S.W.3d at 646. "Because the Arkansas Supreme Court affirmed and
found [Nelson's] petition invalid, 'that is the end of the matter.'" Walker, 436 F.3d at
1032 (quoting Pace, 544 U.S. at 414).
B. Equitable Tolling
Because Nelson is not entitled to statutory tolling, we must address his
argument that he is entitled to equitable tolling because his state court petition was
prepared and filed in compliance with generally accepted "rules" that existed at the
time. According to Nelson, his state court petition was filed in 2003, and it was not
until 2005 that the Arkansas Supreme Court decided Boyle and held that Rule 37's
verification requirement means that the inmate himself must personally sign the Rule
37 petition, even if he is represented by counsel. Nelson asserts that, since Boyle, the
Arkansas Supreme Court has unconstitutionally applied Boyle retroactively to Rule
37 petitions; prior to Boyle, there was no indication that the inmate's own personal
signature was a jurisdictional requirement. Nelson maintains that decades prior to
Boyle, the routinely accepted practice was that the inmate's signature was not required.
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The Supreme Court of the United States recently held that "§ 2244(d) is subject
to equitable tolling in appropriate cases." Holland v. Florida, 130 S. Ct. 2549, 2560
(2010). "[A] 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way' and prevented timely filing." Id. at 2562 (quoting Pace, 544 U.S. at 418).
We need not decide whether Nelson properly raised his equitable tolling
argument before the district court because, even if he did, he failed to pursue his rights
diligently. The Arkansas Supreme Court denied his petition for rehearing on
November 17, 2005. Nelson III, 2005 WL 3074381. But Nelson did not file his federal
habeas petition until August 21, 2006—277 days, or nine months—after the Arkansas
Supreme Court denied rehearing. In Pace, the Supreme Court found that a petitioner
was not diligent when he waited five months after the judgment of conviction became
final to file his petition. 544 U.S. at 419. Similarly, in Earl v. Fabian, the petitioner
alleged "that he did not receive notice that his judgment of conviction had become
final until . . . approximately seven months after the decision was rendered," but this
court noted that the petitioner "still had . . . a span of approximately eight months
. . . to file his habeas petition." 556 F.3d 717, 724 (8th Cir. 2009). This court
concluded that "under such circumstances [the petitioner] would not be entitled to
equitable tolling." Id. Further, Nelson has made no showing that some extraordinary
circumstances stood in his way to prevent a timely filing.
We hold that, like the petitioners in Pace and Earl, Nelson failed to pursue his
rights diligently by not filing his habeas petition until nine months after the Arkansas
Supreme Court denied rehearing and therefore is not entitled to equitable tolling of the
statute of limitations.
III. Conclusion
Accordingly, we affirm the district court's judgment.
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