United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3311
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John H. Wright, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, *
*
Respondent - Appellee. *
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Submitted: April 16, 2002
Filed: August 14, 2002
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Before WOLLMAN, LOKEN and MURPHY , Circuit Judges.
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LOKEN, Circuit Judge.
In May 1996, Arkansas inmate John H. Wright was convicted of drug and
firearm charges and received two consecutive life sentences. The Supreme Court of
Arkansas affirmed his convictions on direct appeal. Wright v. State, 940 S.W.2d 432
(Ark. 1997). The trial court denied Wright’s motion for state post-conviction relief,
and the Supreme Court of Arkansas denied as untimely his motion for a belated
appeal of that ruling. Wright v. State, 2000 WL 92335 (Ark. Jan 27, 2000). Wright
then filed this petition for federal habeas corpus relief on January 29, 2001. He now
appeals the dismissal of his petition as barred by the one-year statute of limitations
enacted in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
and codified at 28 U.S.C. § 2244(d)(1). Reviewing the district court’s1 decision de
novo, we affirm. See Snow v. Ault, 238 F.3d 1033, 1034 (8th Cir.) (standard of
review), cert. denied, 532 U.S. 998 (2001).
The statute provides that AEDPA’s one-year statute of limitations is tolled
while a habeas petitioner exhausts state court remedies for his federal habeas claims.
Thus, Wright’s one-year period was first tolled until June 15, 1997, ninety days after
his convictions were affirmed on direct appeal. See 28 U.S.C. § 2244(d)(1)(A); Jihad
v. Hvass, 267 F.3d 803, 804-05 (8th Cir. 2001). At that time, his motion for state
post-conviction relief was pending, so the federal limitations period was further tolled
during the pendency of that state court proceeding. See 28 U.S.C. § 2244(d)(2).
The trial court denied Wright’s post-conviction motion on May 1, 1998. He
had thirty days to appeal that ruling. See Ark. R. App. P.-Crim. 2(a)(4). He failed to
file a timely appeal. However, Criminal Appellate Rule 2(e) permits the Supreme
Court of Arkansas to “entertain” belated motions to appeal up to eighteen months
after post-conviction relief is denied. Wright submitted a motion for belated appeal
on November 1, 1999, the last day of that eighteen-month period. The motion was
not denied until January 27, 2000. Wright argues the one-year period commenced on
January 27, 2000, and his January 29, 2001 federal petition was therefore timely-filed
under Moore v. United States, 173 F.3d 1131, 1133-34 (8th Cir. 1999).2
1
The HONORABLE STEPHEN M. REASONER, United States District Judge
for the Eastern District of Arkansas, adopting the Report and Recommendation of the
HONORABLE H. DAVID YOUNG, United States Magistrate Judge for the Eastern
District of Arkansas.
2
Moore held that Rule 6(a) of the Federal Rules of Civil Procedure governs the
calculation of AEDPA time limits. Therefore, filing deadlines fall on the anniversary
date of the triggering event, not the day before, and a deadline is advanced to the next
business day if it falls on a weekend. January 27, 2001 was a Saturday, so Wright’s
January 29 habeas petition was filed within one year of January 27, 2000.
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We will assume without deciding that state post-conviction proceedings in
Arkansas remain pending, for purposes of tolling the AEDPA statute of limitations,
for the eighteen month period when the Supreme Court of Arkansas will entertain a
motion for a belated appeal of the denial of state post-conviction relief.3 Like the
district court, we nonetheless conclude that Wright’s federal habeas petition was
untimely. To toll the statute of limitations under 28 U.S.C. § 2244(d)(2), an
application for state post-conviction relief must be properly filed. “[A]n application
is ‘properly filed’ when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings” under state law. Artuz v. Bennett, 531
U.S. 4, 8 (2000). Here, although Wright tendered his motion for belated appeal on
November 1, 1999 -- just within the eighteen-month period for Criminal Appellate
Rule 2(e) motions -- he did not lodge a partial record of the lower court proceedings
with the Supreme Court of Arkansas until November 8, 1999. The Clerk of Court
3
The State argues, to the contrary, that nothing was pending after May 31,
1998, when Wright failed to file a timely appeal. We noted this issue without
deciding it in Mills v. Norris, 187 F.3d 881, 884 n.4 (8th Cir. 1999). Very recently,
the Supreme Court provided guidance as to how the issue should be analyzed in
Carey v. Saffold, 122 S. Ct. 2134 (2002). The Court noted that “AEDPA’s limitations
period -- with its accompanying tolling provision . . . promotes the exhaustion of state
remedies while respecting the interest in the finality of state court judgments.” 122
S. Ct. at 2138. In determining whether a particular state appellate procedure must be
exhausted, it is relevant whether “that review is part of the ordinary appellate review
procedure in the State.” O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999). In
response to a question asked at oral argument, the State advises it has argued that the
motion for belated appeal authorized by Criminal Appellate Rule 2(e) is an appellate
procedure that must be exhausted before seeking federal habeas relief. But to our
knowledge, the Supreme Court of Arkansas had not declared whether that motion is
part of the “ordinary appellate review procedure” under state law. Because “it is the
State’s interests that the [AEDPA] tolling provision seeks to protect,” Saffold, 122
S. Ct. at 2139-40, it will help the federal courts in Arkansas apply AEDPA’s one-year
statute of limitations in the future if the Supreme Court of Arkansas further clarifies
the role of the Rule 2(e) motion for belated appeal in Arkansas post-conviction
proceedings.
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filed the motion on November 8, consistent with Criminal Appellate Rule 2 as
construed in Hayes v. State, 940 S.W.2d 886, 886-87 (Ark. 1997). November 8 was
seven days beyond the eighteen-month deadline, and the Supreme Court of Arkansas
therefore dismissed the motion as untimely on January 27, 2000. See Wright, 2000
WL 92335 at *1. In these circumstances, the motion was not “properly filed” within
the meaning of Artuz v. Bennett, and it did not further toll the AEDPA statute of
limitations. Thus, Wright’s one-year period commenced running, at the latest, on
November 1, 1999, and his January 29, 2001 federal habeas petition was filed several
months out of time.
Finally, Wright urges us to expand his certificate of appealability to include the
issue of whether the circumstances surrounding his tender of the motion for a belated
appeal on November 1, 1999 should give rise to further equitable tolling of AEDPA’s
one-year statute of limitations. “[W]e limit our appellate review to the issues
specified in the certificate of appealability.” Harris v. Bowersox, 184 F.3d 744, 748
(8th Cir.), cert. denied, 528 U.S. 1097 (1999); see 28 U.S.C. §2253(c)(1). In any
event, we agree with the district court that this contention is without merit.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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