United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1176
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Alfred McMullan, Jr., *
* Appeal from the United States
Appellant, * District Court for the
* Eastern District of Missouri.
v. *
*
Don Roper, *
*
Appellee. *
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Submitted: December 18, 2009
Filed: March 26, 2010
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Before LOKEN, Chief Judge, BENTON, Circuit Judge, VIKEN,1 District Judge.
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VIKEN, District Judge.
Alfred McMullan, Jr., moved for habeas relief under 28 U.S.C. § 2254. The
district court2 denied relief. McMullan appeals. This court has jurisdiction under 28
U.S.C. §§ 1291 and 2254. We affirm.
1
The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, sitting by designation.
2
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri, adopting the report and recommendation of the Honorable Terry
I. Adelman, United States Magistrate Judge for the Eastern District of Missouri.
I.
A Missouri jury convicted McMullan of second degree murder. He was
sentenced to a term of thirty years imprisonment. McMullan’s conviction and
sentence were affirmed on direct appeal by the Missouri Court of Appeals. See State
v. McMullan, 104 S.W.3d 439 (Mo. App. E.D. 2003). The Missouri Court of Appeals
issued its mandate on June 5, 2003, and McMullan did not seek discretionary review
with the Missouri Supreme Court. On August 25, 2003, McMullan filed a pro se
motion to vacate, set aside or correct the judgment or sentence. The post-conviction
relief court dismissed that motion on January 21, 2005. The Missouri Court of
Appeals affirmed the dismissal on December 27, 2005. McMullan v. State, 179
S.W.3d 905 (Mo. App. E.D. 2005).
On March 10, 2006, McMullan filed a motion for special order permitting a
motion for rehearing or transfer out of time, which was denied by the Missouri Court
of Appeals on March 17, 2006. On June 16, 2006, McMullan filed a pro se motion
to reopen judgment under Missouri Supreme Court Rule 74.06 (“Rule 74.06
Petition”). On November 21, 2006, McMullan’s post-conviction counsel filed a
motion to reopen post-conviction procedures under Missouri Supreme Court Rule
29.15 (“Rule 29.15 Petition”). On April 8, 2008, the Missouri Circuit Court entered
an order denying both motions, specifically finding that Rule 74.06 did not apply to
criminal matters, citing State ex rel. Nixon v. Daugherty, 186 S.W.3d 253 (Mo. 2006).
McMullan did not seek any further review or relief from his conviction in state court.
On December 15, 2006, McMullan filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.3 After briefing, the district court found the
federal petition was not timely filed under 28 U.S.C. § 2244(d)(1). We granted a
3
The district court accorded petitioner the benefit of the prison mailbox rule as
the petition was actually filed with the court on December 21, 2006.
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certificate of appealability on the issue of “whether the district court erred in
concluding that McMullan’s federal habeas petition was barred by the statute of
limitations.” This appeal followed.
II.
We review de novo a district court’s decision to dismiss a § 2254 habeas
petition based on the statute of limitations contained in the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), and codified in 28 U.S.C.
§ 2244(d)(1)(A). Streu v. Dormire, 557 F.3d 960, 961 (8th Cir. 2009) (citing Boston
v. Weber, 525 F.3d 622, 624 (8th Cir. 2008)).
The question before this court is a simple and direct one: Does a Rule 74.06
Petition qualify as a properly filed application for state post-conviction or other
collateral review so as to toll the statute of limitations under § 2244(d)(2)? The
district court found that it did not, and we agree.
Under § 2244(d)(1)(A), a person in state custody has one year from the date
the state court judgment becomes final to file an application for habeas corpus.
Boston, 525 F.3d at 624.
[T]he running of the statute of limitations imposed by § 2244(d)(1)(A)
is triggered by either (i) the conclusion of all direct criminal appeals in
the state system, followed by either the completion or denial of certiorari
proceedings before the United States Supreme Court; or (ii) if certiorari
was not sought, then by the conclusion of all direct criminal appeals in
the state system followed by the expiration of the time allotted for filing
a petition for the writ.
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Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). McMullan did not file a
petition for writ of certiorari with the United States Supreme Court following the
conclusion of his direct appeal. Therefore, his state court judgment became final on
June 6, 2003, the day after the direct appeal mandate was issued by the Missouri Court
of Appeals. Riddle v. Kemna, 523 F.3d 850, 856 (8th Cir. 2008). The district court
determined the one-year statute of limitations under AEDPA commenced on June 5,
2003, and concluded on June 5, 2004, but because the ending date was a Saturday, the
district court found that McMullan would have had until June 7, 2004, to file his
federal habeas petition. See McMullan v. Roper, 2008 WL 3895938 at *3, footnote
2 (E.D. Mo.).4 We reach the same conclusion.
The one-year statute of limitations is tolled in accordance with § 2244(d)(2)
while a “properly filed application for State post-conviction or other collateral review
. . . is pending.” Williams v. Bruton, 299 F.3d 981, 982 (8th Cir. 2002). The time
between the conclusion of a direct appeal and the filing of a state court application for
post-conviction relief does not toll the AEDPA statute of limitations. Payne v.
Kemna, 441 F.3d 570, 572 (8th Cir. 2006). Because McMullan did not file his state
court post-conviction petition until August 24, 2003, 81 days of the AEDPA statute
of limitations expired, leaving 284 days to file a federal habeas petition.
Once a state post-conviction petition was filed, AEDPA was tolled until the
Missouri Court of Appeals issued its mandate denying McMullan’s appeal. Williams,
299 F.3d at 983. Since McMullan’s state post-conviction petition, under Missouri
Supreme Court Rule 29.15, was filed on August 24, 2003, and the Missouri Court of
Appeals did not issue its mandate denying his state habeas petition until January 19,
2006, that entire time is tolled under § 2244(d)(2). Id.
4
The ending date under Riddle was a Sunday, making Monday, June 7, 2004,
the end date for purposes of the one-year statute of limitations under AEDPA.
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When McMullan filed his motion to reopen judgment with the Missouri Court
of Appeals on June 16, 2006, he did so under Missouri Supreme Court Rule 74.06.
Relief from a final judgment or order of the Missouri courts can be made under
Missouri Supreme Court Rule 74.06(b), which, in pertinent part, states:
(b) Excusable Neglect - Fraud - Irregular, Void, or Satisfied Judgment.
On motion and upon such terms as are just, the court may relieve a party
. . . from a final judgment or order for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) fraud . . .
misrepresentation, or other misconduct of an adverse party; (3) the
judgment is irregular; (4) the judgment is void; or (5) the judgment has
been satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment remain in force.
By the time McMullan filed his Rule 74.06 Petition, a total of 148 additional days of
the AEDPA statute of limitations had already expired, leaving 136 days to timely file
a federal habeas petition.
The Missouri Court of Appeals analyzed Rule 74.06 in light of Rule 29.15 in
Roath v. State, 998 S.W.2d 590 (Mo. App. W.D. 1999). The Roath court specifically
declared that Rule 74.06 “cannot be used to attack a criminal judgment, as the
appellant seeks to do here. Instead, he, like any criminal defendant attacking his
judgment of conviction and sentence, is limited to relief pursuant to a direct appeal,
Rule 29.15, or a writ of habeas corpus.” Id. at 592 (emphasis in original).
On February 28, 2006, several months before McMullan filed his Rule 74.06
Petition, the Supreme Court of Missouri held: “A motion under Rule 74.06(d) is not
permitted to attack a judgment entered under Rule 24.035.” State ex rel. Nixon v.
Daugherty, 186 S.W.3d 253, 254 (Mo. 2006). Rule 29.15 is the corresponding
mechanism for redress from convictions following trial. See State ex rel. Zinna v.
Steele, No. SC 90000, 2010 WL 97996 (Mo. Jan. 12, 2010). “Rules 24.035 and 29.15
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have a common purpose: to adjudicate claims concerning the validity of the trial
court’s jurisdiction and the legality of the conviction or sentence of the defendant.”
Thomas v. State, 808 S.W.2d 364, 366 (Mo. 1991). “Rules 24.035 and 29.15 have
an additional purpose: to avoid ‘delay in the processing of prisoners’ claims and
prevent the litigation of stale claims.’ ” Id. (quoting Day v. State, 770 S.W.2d 692,
695 (Mo. 1989) (en banc)).
To qualify as a “properly filed” application for state post-conviction relief, so
as to toll the statute of limitations under § 2244(d)(2), the application must be “in
compliance with the applicable laws and rules governing filings.” Artuz v. Bennett,
531 U.S. 4, 8, 121 S. Ct. 361, 364 (2000). “A properly filed application is one that
meets all of the state’s procedural requirements.” Beery v. Ault, 312 F.3d 948, 950-
951 (8th Cir. 2002) (internal reference omitted).
McMullan’s Rule 74.06 Petition specifically sought relief under Rule 74.06,
though the petition referenced Rule 29.15.5 The law in Missouri was clear before
McMullan’s petition was filed, Rule 74.06 cannot be used to attack his criminal
conviction. Nixon, 186 S.W.3d at 254. Simply because the Missouri Court of
Appeals did not reject McMullan’s Rule 74.06 Petition until April 8, 2008, does not
change the federal court’s review of the Rule 74.06 Petition under AEDPA.
McMullan was entitled to no relief under Rule 74.06. Nixon, 186 S.W.3d at 254;
Roath, 998 S.W.2d at 592. Because the Rule 74.06 Petition was not a “properly filed”
application for state post-conviction relief under Roath and Nixon, it did not toll the
statute of limitations under § 2244(d)(2).
5
Even if considered as a second Rule 29.15 application, this motion was invalid
on its face as the Rule specifically required McMullan to file any amendment to the
initial motion within 90 days of August 24, 2003. See Mo. Sup. Ct. R. 29.15(g) and
Edgington v. State, 869 S.W.2d 266, 269 (Mo. App. 1994) (time limits for filing post-
conviction motions are mandatory and the motion court does not have discretion to
grant extensions beyond that provided for in the Rule).
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When McMullan filed his Rule 29.15 Petition on November 21, 2006,6 the final
136 days of the AEDPA statute of limitation had already expired.7 Thus, when
McMullan filed his federal habeas petition on December 16, 2006, the application was
untimely under 28 U.S.C. § 2244(d)(1).
III.
The judgment of the district court is affirmed.
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6
This Rule 29.15 Petition was likewise rejected by the Missouri Court of
Appeals on April 8, 2008, on the basis of Rule 29.15(g).
7
The statute of limitations expired 136 days from June 16, 2006, which is
October 30, 2006.
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