Barnard v. Conley

RYAN, Circuit Judge,

concurring in the judgment.

RYAN, Circuit Judge.

While I join in Judge Boggs’s judgment dismissing Ricky L. Barnard’s petition for a writ of habeas corpus, I write separately because I believe that his opinion reaches an issue we are prohibited by statute from considering. By holding that Barnard’s petition is barred by the one-year statute of limitations found in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Judge Boggs addresses an issue not certified for appeal to this court. Because I find that the statute governing habeas corpus restricts our review to those issues certified for appeal, I concur only in the judgment.

I.

A habeas corpus petitioner must obtain permission to appeal:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.

28 U.S.C. § 2253(c)(1)(A) (West Supp. 2001). Thus, Fed. R.App. P. 22(b)(1) states, in part:

In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).

The certificate of appealability (COA) not only circumscribes the issues which the parties may advance in this court, it also circumscribes the issues we may properly review. In obedience to the statute and the appellate rule, the Chief Judge of this circuit has ordered: “In the briefing letter to the parties, the clerk shall state that the court of appeals will not entertain any issue that lacks district court or court of appeals certification.” In re Certificates of Appealability, 106 F.3d 1306, 1308 (6th Cir.1997) (emphasis added). Relying on this ruling, we have refused to consider the timeliness of a petitioner’s 28 U.S.C. § 2255 petition when the issue was not listed in the certificate of appealability. Johnson v. United States, 246 F.3d 655, *816661 (6th Cir.2001). “As we have repeatedly recognized, when AEDPA applies, a court of appeals will address only the issues which are specified in the certificate of appealability.” Searcy v. Carter, 246 F.3d 515, 518 (6th Cir.) (emphasis added) (internal quotation marks and citation omitted), cert. denied, — U.S.—, 122 S.Ct. 237, 151 L.Ed.2d 171 (2001).

Admittedly, in most instances “[a] decision below must be affirmed if correct for any reason, including a reason not considered by the lower court.” Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985) (per cu-riam). It is said that this familiar rule provides us with ample discretion to decide habeas appeals on any grounds presented by the record, even those not certified for appeal. As a matter of fact, relying on this principle the Ninth Circuit recently held that it could reach the statute of limitations question on habeas review, even if it had not been identified in the certificate of appealability. White v. Klitzkie, 281 F.3d 920, 922 (9th Cir.2002). In addition, in unpublished opinions in this circuit we have previously disposed of habeas petitions resting on issues not certified for appeal. See, e.g., Wilson v. United States, 8 Fed.Appx. 304 (6th Cir.2001) (unpublished disposition); Bostic v. Abramajtys, No. 97-2203, 1999 WL 96738 (6th Cir. Feb.3, 1999) (unpublished disposition). But these dispositions are not correct, because in the habeas context, the rule announced in Russ’ contravenes the AEDPA and the appeal regime created by § 2253(c).

The grant of a COA is appropriate only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (West Supp.2001). If the district or circuit court issues the COA upon the making of that showing, the COA “shall indicate which specific issues satisfy the showing required by [§ 2253(c)(2) ].” 28 U.S.C. § 2253(c)(3) (West Supp.2001) (emphasis added). To decide habeas appeals on issues not presented in the COA circumvents the appellate practice dictated by Congress.

II.

Chief Judge Martin certified the following issues for appeal:

1. whether Barnard’s appellate counsel rendered ineffective assistance in advising him to voluntarily dismiss his appeal; and
2. whether Barnard’s Fourth Amendment rights were violated when the trial court denied his motion to suppress evidence obtained from an illegal search and seizure.

Despite the COA, Kentucky argued in its brief that Barnard’s petition is precluded by the one-year statute of limitations. Based on the AEDPA and our precedent, we are not free to consider that argument. While we would have the duty to consider Kentucky’s statute of limitations argument if it were jurisdictional, we have held elsewhere that the one-year period of limitations found in § 2255 and applicable to § 2254 is not a jurisdictional requirement. Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir.), cert. denied, -U.S.-, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001).

I would riot entertain a statute of limitations argument at this stage of the proceeding, when it has not been certified for appeal and did not provide the basis for the lower court’s decision. I would decide this case on the grounds certified for appeal. Barnard fails to state a claim that his appellate counsel was ineffective. He voluntarily waived his direct appeal in 1987 after careful consultation with his counsel, whose advice and actions were well within the bounds of reason. Furthermore, Bar*817nard’s Fourth Amendment argument is proeedurally barred from habeas review because he failed to properly present it in state court. “It is well settled that ‘federal courts do not have jurisdiction to consider a claim in a habeas petition that was not “fairly presented” to the state courts.’” Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir.2001) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000), cert. denied, 532 U.S. 958, 121 S.Ct. 1487, 149 L.Ed.2d 374 (2001)). Barnard shows no cause or prejudice from this procedural default.

III.

I concur only in the judgment dismissing Barnard’s petition for a writ of habeas corpus.