United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1744
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Wilbert L. Johnson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Ray Hobbs, Director, Arkansas *
Department of Correction, *
*
Appellee. *
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Submitted: January 11, 2012
Filed: May 1, 2012
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Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
Wilbert L. Johnson appeals the dismissal of his petition for writ of habeas
corpus. The district court1 determined that the petition was filed after the expiration
of the one-year statute of limitations. See 28 U.S.C. § 2244(d). We granted a
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the report and recommendation of the
Honorable Beth Deere, United States Magistrate Judge for the Eastern District of
Arkansas.
certificate of appealability to consider whether the statute of limitations should have
been equitably tolled. We affirm.
I.
On April 22, 2008, a jury found Johnson guilty of felony breaking or entering,
misdemeanor theft of property, and misdemeanor fleeing. Following the conviction,
the Pulaski County Circuit Court sentenced Johnson to fifteen years’ imprisonment.
He appealed to the Arkansas Court of Appeals, arguing that the evidence was
insufficient to support his conviction for breaking or entering. The court of appeals
affirmed on March 18, 2009, Johnson v. State, No. CACR 08-969 (Ark. Ct. App. Mar.
18, 2009) (unpublished), and issued its mandate on April 7, 2009. Johnson did not
seek direct review from the Arkansas Supreme Court.
On April 3, 2009, Johnson filed a petition under Arkansas Rule of Criminal
Procedure 37, seeking post-conviction relief from the circuit court. On June 3, 2009,
Johnson filed an amended petition. Throughout June and July 2009, Johnson filed
three additional Rule 37 petitions, without ever seeking leave to amend the initial
petition. The petitions raised a number of claims, alleging, among other things, that
Johnson was deprived of a fair trial and that Johnson’s attorney provided ineffective
assistance. In response, the state argued that Johnson was not entitled to relief
because he failed to state specific reasons to show that his claims had merit. The state
pointed out that Johnson amended his petition without leave of court, in contradiction
to Rule 37.2(e), but it went on to address the grounds listed in his last-filed petition.2
2
Johnson named his petitions as follows: Rule 37 Petition, Amended Rule 37
Petition, Second Amended Rule 37.1 Petition, Corrected Second Amended Rule 37.1
petition, and Third Amended Rule 37.1 Petition.
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By order filed on December 28, 2009, the circuit court denied any post-
conviction relief. It concluded that Johnson was not denied effective assistance of
counsel and that his remaining claims for relief were addressed on direct appeal or
barred because they should have been raised on direct appeal. The order did not
address whether Johnson’s petition was timely filed, but rather it appeared to have
considered Johnson’s amended petitions—like the state did in its response—in
denying Johnson’s claims on the merits.
Johnson filed an appeal with the Supreme Court of Arkansas, moving for
appointment of counsel, an extension of time to file his appellate brief, and a copy of
a transcript. Before any appellate briefs were filed, the state supreme court declared
the motions moot and dismissed Johnson’s appeal. It held that Johnson’s petition was
not timely filed because he filed it before the court of appeals’s mandate issued and
thus before the circuit court had regained jurisdiction. Johnson v. State, No. CR 10-
309, 2010 WL 1838289 (Ark. May 6, 2010) (unpublished) (per curiam). The state
supreme court’s decision stated that “[b]ecause the trial court lacked jurisdiction at the
time appellant filed his petition, the circuit court was limited to dismissing the
petition.” Id. at *1. The order of dismissal was filed on May 6, 2010, and did not
address the fact that the trial court considered claims raised in an amended petition.
Johnson moved for reconsideration, arguing that the state supreme court considered
the wrong petition because the circuit court filed his initial petition with the state
supreme court. According to Johnson, he amended his petition and filed it within
Rule 37’s time limits. Johnson argued that the circuit court ruled on his Third
Amended Petition because the court considered at least one argument that was not
raised in his initial petition. On June 24, 2010, the state supreme court denied
Johnson’s motion for reconsideration without comment.
Johnson filed a federal application for writ of habeas corpus on July 30, 2010.
In a report and recommendation, the magistrate judge determined that Johnson’s
application was filed after the applicable statute of limitations had run and that
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Johnson was not entitled to statutory or equitable tolling. The district court adopted
the report and recommendation in its entirety and dismissed Johnson’s petition with
prejudice. D. Ct. Order of Mar. 28, 2011. We granted a certificate of appealability
to decide whether Johnson was entitled to equitable tolling based on his filing of
amended petitions for post-conviction relief following his initial premature petition.
II.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
a one-year statute of limitations applies to a state prisoner’s application for federal
habeas corpus relief. 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run
on “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” § 2244(d)(1)(A). “[F]or a state
prisoner who does not seek review in a State’s highest court, the judgment becomes
‘final’ on the date that the time for seeking such review expires.” Gonzalez v. Thaler,
132 S. Ct. 641, 646 (2012). Johnson did not pursue his direct appeal to the Arkansas
Supreme Court, and thus his conviction became final on April 7, 2009, when he could
no longer seek review from that court.3 See Parmley v. Norris, 586 F.3d 1066, 1073
(8th Cir. 2009) (holding that the Arkansas Court of Appeals was not the “state court
of last resort”).
The statute of limitations is tolled while “a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or
3
The Arkansas Court of Appeals denied Johnson’s direct appeal on March 18,
2009. A petition to review a decision of the court of appeals “must be filed within 18
calendar days from the date of the decision . . . .” Ark. Sup. Ct. R. 2-4(a). When the
last day for filing a petition for review “falls on a Saturday, Sunday, or legal holiday,
the time for such action shall be extended to the next business day.” Ark. R. App. P.
Crim. R. 17. Eighteen days from March 18 is April 5. In 2009, April 5 fell on a
Sunday. Accordingly, the last day for Johnson to appeal his conviction to the
Arkansas Supreme Court was April 6, 2009.
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claim is pending[.]” § 2244(d)(2). The district court ruled that Johnson was not
entitled to statutory tolling because his initial Rule 37 petition was filed before the
Arkansas Court of Appeals’s mandate issued and thus was not “properly filed.” The
district court also concluded that Johnson was not entitled to equitable tolling because
his “‘misunderstanding of the proper procedures for filing a Rule 37 petition under
Arkansas law’ is not grounds for equitable tolling.” Report and Recommendation of
Mar. 11, 2011, at 6 (quoting Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004)).
The certificate of appealability is limited to the issue of whether Johnson is entitled
to equitable tolling.
“[Section] 2244(d) is subject to equitable tolling in appropriate cases.” Holland
v. Florida, 130 S. Ct. 2549, 2560 (2010). “Generally, a litigant seeking equitable
tolling bears the burden of establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Johnson’s diligence in pursuing his
rights is undisputed, and he contends that the following events constitute an
extraordinary circumstance sufficient to toll AEDPA’s statute of limitations: the
Arkansas Supreme Court overlooked the timely Rule 37 petition Johnson filed on June
3, 2009; failed to address whether the subsequent petitions were proper amendments;
and dismissed his appeal more than one year after his conviction became final. The
timing of the dismissal prevented him from filing a timely application for a writ of
habeas corpus under 28 U.S.C. § 2244.
The extraordinary circumstance that prevents a petitioner from timely filing his
federal application must be external to the petitioner and not attributable to his actions.
Riddle v. Kemna, 523 F.3d 850, 857 (8th Cir. 2008) (en banc) (abrogated on other
grounds by Gonzalez,132 S. Ct. at 653-54). The state argues that Johnson failed to
show that an extraordinary circumstance stood in the way of filing a timely petition.
According to the state, the onus was on Johnson to seek leave to amend his original
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untimely petition and that by failing to do so Johnson did not ensure that his petition
was properly filed.
Under Arkansas law, Johnson was required to file his Rule 37 petition “within
sixty (60) days of the date the mandate was issued by the appellate court.” Ark. R.
Crim. P. 37.2(c). As set forth above, Johnson filed his first petition before the
mandate issued and thus his original petition was untimely.4 Id.; see Tapp v. State,
920 S.W.2d 482, 483 (Ark. 1996) (per curiam) (“The petition must be filed after the
mandate is issued because, when a case is directly appealed, the circuit court does not
regain jurisdiction over the case until that event occurs.”). Although the petitioner
must raise all grounds for relief in his original petition, Ark. R. Crim. P. 37.2(b), “the
petition may be amended with leave of the court” before the court acts upon the
petition, id. 37.2(e).
It is undisputed that Johnson’s first petition was untimely and that he did not
seek leave to amend that petition. Typically, a petitioner’s pro se status and failure
to follow rules for filing state post-conviction petitions do not constitute extraordinary
circumstances. See, e.g., Shoemate, 390 F.3d at 598 (holding that pro se petitioner’s
“misunderstanding of the Arkansas rules, statutes, and the time period set forth therein
do not justify equitable tolling”). Johnson argues that the Arkansas Supreme Court’s
oversight of his Amended Rule 37 Petition prevented him from filing his application
for habeas review within AEDPA’s statute of limitations. He further contends that his
case is similar to the facts that established an extraordinary circumstance in White v.
Dingle, 616 F.3d 844 (8th Cir. 2010).
4
In 2011, Rule 37.2(c) was amended to include a “deemed filed” rule: “If a
petition is filed after a conviction is affirmed by the appellate court but before the
mandate is issued, the petition shall be treated as filed on the day after the mandate is
issued.” Ark. R. Crim. P. 37.2(c)(ii) (2011).
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In White, the petitioner had filed a timely application for federal habeas review.
After the AEDPA statute of limitations had run, the district court determined that the
habeas application contained at least one unexhausted claim, dismissed the application
without prejudice, and granted a certificate of appealability on the question whether
the claims were exhausted. We affirmed the dismissal, but we did not address White’s
argument that we should remand the case with instructions to allow him to voluntarily
dismiss the unexhausted claims and have the remaining claims adjudicated on the
merits, a procedure we had previously endorsed. See id. at 846. When the petitioner
returned to the district court, he moved to amend his petition to dismiss any
unexhausted claims. The district court denied the motion because the statute of
limitations had long since expired. On appeal, we held that the AEDPA statute of
limitations should have been equitably tolled because White pursued his claim
diligently and because our earlier decision constituted an extraordinary circumstance
that prevented White from obtaining federal review of his exhausted claims. Id. at
848-49. We explained that there was “no indication that our failure to remand White’s
case was anything other than an oversight.” Id. at 848. We noted that remand “would
have been fully consistent with the Supreme Court’s directive in Rhines v. Weber to
avoid dismissal without prejudice when it would unreasonably jeopardize a
petitioner’s access to review of his exhausted claims.” Id. (citing Rhines v. Weber,
544 U.S. 269, 278 (2005)).
Unlike our first order in White, we cannot say that the Arkansas Supreme
Court’s orders dismissing Johnson’s appeal and denying his motion for
reconsideration were most likely the result of an oversight. In his motion for
reconsideration, Johnson argued that he properly filed his Rule 37 petition and that the
circuit court accepted his Third Amended Petition. Despite this argument, the motion
was denied. Moreover, unlike our failure to remand in the first instance in White, the
Arkansas Supreme Court did not fail to follow an established procedure that would
have allowed Johnson’s claims to be heard. Given that Johnson failed to file a timely
petition and thereafter failed to move to amend his original untimely petition, we hold
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that he cannot show that an extraordinary circumstance, external to himself and not
attributable to his actions, prevented him from timely filing his application for a writ
of habeas corpus. Accordingly, his federal habeas application was untimely.
III.
The district court’s judgment dismissing the petition is affirmed.
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