York v. Galetka

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DONALD WILLIAM YORK,

Petitioner-Appellant,

v. No. 01-4214

HANK GALETKA,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:00-CV-226-B)

Submitted on the briefs:

Donald William York, Pro Se.

Erin Riley, Assistant Attorney General, Mark L. Shurtleff, Utah Attorney General,
Salt Lake City, Utah, for Respondent-Appellee.

Before MURPHY , ANDERSON , and HARTZ , Circuit Judges.

MURPHY , Circuit Judge.
 Donald William York appeals from the district court’s order dismissing his

28 U.S.C. § 2254 habeas corpus petition. The district court concluded that York

had failed to file his petition within the one-year statute of limitations for such

petitions, see 28 U.S.C. § 2244(d), and that he was not entitled to equitable

tolling of the one-year limitations period. York seeks a certificate of

appealability (COA) to appeal from the order of dismissal. See id.

§ 2253(c)(1)(A). Because we conclude that equitable tolling should have been

applied in this case, we grant York a COA, vacate the order of dismissal, and

remand to the district court for further proceedings. 1

This case poses a difficult procedural problem concerning the running of

the one-year habeas limitations period. The period typically begins to run from

the date on which a petitioner’s conviction becomes final by the conclusion of

direct review. 28 U.S.C. § 2244(d)(1)(A). The time a petitioner spends pursuing

state post-conviction or other collateral review is not counted toward this one-

year period. Id. § 2244(d)(2). This “statutory tolling” is not available, however,

during the time period a prior federal habeas proceeding is pending. Duncan v.

Walker , 533 U.S. 167, 172-82 (2001). York made a diligent effort to present his

1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

-2-
claims in federal court within the limitations period, but found himself barred by

the rule in Duncan , a case decided after the dismissal of his second federal habeas

petition and during the pendency of his third federal petition, the dismissal of

which is before the court in this appeal. Because we conclude that a strict

application of Duncan under the circumstances of this case would be inequitable,

we apply equitable tolling and remand to permit the district court to consider the

merits of York’s claims.

FACTS

The underlying facts of this case are set out in a published opinion of the

Utah Court of Appeals. York v. Shulsen , 875 P.2d 590 (Utah Ct. App. 1994).

York shot his ex-wife and another man in her Salt Lake City bedroom, killing the

man and seriously wounding his ex-wife. He surrendered to police and was

charged with first degree murder, attempted second degree murder, and

aggravated burglary. York raised a defense of not guilty by reason of insanity or

diminished capacity. The doctors who examined him found that he had not been

legally insane at the time of the crimes, but recommended that he undergo further

testing to determine why he had periods of memory lapse. Although York’s

counsel initially supported a continuance for further mental testing, he eventually

consented to allowing York to plead guilty without further testing.

-3-
 York pleaded guilty to second degree murder and attempted manslaughter.

At his plea hearing, he claimed that he had no specific memory of the shootings,

but nevertheless wished to accept the plea agreement and to plead guilty. The

trial court accepted his guilty plea without inquiring into his competency. On

December 6, 1984, it sentenced him to five years to life for the murder and zero

to five years for the attempted manslaughter, to be served consecutively.

York did not take a direct appeal from his convictions and sentence. In

1985, however, a prison psychiatrist who conducted hypnotherapy sessions with

York concluded that he suffered from multiple personality disorder (MPD).

Armed with this diagnosis, York began a seventeen-year post-conviction odyssey

through state and federal courts, culminating in the present appeal.

York began by filing a state petition for writ of habeas corpus, on April 2,

1985. He contended that the new evidence of his MPD showed that he had not

been guilty of the crimes. His petition also included a number of other claims,

including ineffective assistance of counsel, judicial conflict of interest, and a

claim that his guilty plea had been unknowing and involuntary. The state district

court denied his petition six years later, on July 16, 1991. 2
York appealed, and

the denial was affirmed by the Utah Court of Appeals after passage of nearly

2
Although York had foregone his direct appeal, the district court did not rely
on procedural bar but denied his claims on the merits.

-4-
three years. York , 875 P.2d 590. He then sought certiorari from the Utah

Supreme Court, which was denied on September 19, 1994.

Two months later, on November 3, 1994, York filed his first federal habeas

petition. He included, however, a number of additional claims not previously

raised in the state courts. The district court dismissed his petition without

prejudice on October 5, 1995, to allow York to exhaust his state court remedies.

On October 23, 1995, York filed a second state habeas petition. This

petition remained pending until August 29, 1996, when York voluntarily

dismissed it without prejudice, evidently to pursue instead a motion to withdraw

his plea, which he had filed the day before.

In the meantime, on April 24, 1996, Congress passed the AEDPA

amendments to § 2244(d), creating a one-year statue of limitations for the filing

of habeas petitions. Subsequent to this amendment, this court adopted a rule that

a habeas petitioner had one year from the effective date to file the petition, i.e.,

until April 23, 1997, when the subject conviction had become final prior to

AEDPA’s effective date. See, e.g., Fisher v. Gibson , 262 F.3d 1135, 1142 (10th

Cir. 2001), cert. denied , 122 S. Ct. 1789 (2002).

York filed his motion to set aside his guilty plea in state district court on

August 28, 1996, and it was not denied until November 26, 1997. This denial was

affirmed by the Utah Court of Appeals on September 24, 1998. Although this

-5-
time period encompassed the extended deadline for AEDPA filing, it did not

affect York’s one-year period for bringing his AEDPA petition. That is because

of the statutory tolling rule built into § 2244(d)(2), which provides:

The 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.

In other words, until the overlapping second state habeas and motion to set

aside guilty plea were completely resolved, the one-year clock would not begin

running for York to file his federal habeas petition. That did not occur until

February 11, 1999, when the Utah Supreme Court denied certiorari after the state

district court and Utah Court of Appeals had rejected York’s attempt to withdraw

his guilty plea. At this point, York had 365 days, until February 11, 2000, within

which to file his federal habeas petition. 3

York met this deadline. He filed his second federal habeas petition on

March 24, 1999. This petition was also dismissed for failure to exhaust all

claims. The dismissal, however, did not occur until January 31, 2000, some

eleven days before the limitation period was set to expire.

3
In the absence of specific argument to the contrary, we will assume that the
entry of the order denying certiorari terminated the “pending” collateral review,
and restarted the AEDPA time clock. See Utah R. App. P. 51(c).

-6-
 On February 18, 2000, York filed an application for state certiorari, his

third. The Utah Supreme Court rejected it as untimely on February 24, 2000. The

court stated that it lacked jurisdiction to consider the untimely application.

Unbeknownst to him, or for that matter to anyone conversant with Tenth

Circuit jurisprudence on tolling of the AEDPA statute of limitations, York was in

trouble. While his state court post-conviction proceedings had tolled the one-year

statute of limitations, the same could not be said for the time period York spent

waiting for the federal district court to decide his second habeas petition. In

Duncan , 533 U.S. at 172-82, decided well after the dismissal of York’s second

federal habeas petition, the Supreme Court determined that the time spent in

federal habeas review is not attributable to an “application for State post-

conviction or other collateral review” within the meaning of § 2244(d)(2), and

therefore does not toll the time for filing a subsequent petition. In doing so, the

Supreme Court overruled this court’s precedent that the pendency of a federal

habeas petition tolled the AEDPA limitations period. Petrick v. Martin , 236 F.3d

624, 629 (10th Cir. 2001).

On March 14, 2000, York filed his third federal habeas petition. Under the

rule subsequently developed in Duncan , this petition was thirty-two days late.

-7-
 ANALYSIS

1. Motion to withdraw plea

Before turning to the equitable tolling analysis, we must first consider

whether York’s motion to withdraw his guilty plea was part of the direct appeal

process, or part of the state collateral review process. If York’s motion was part

of the direct appeal process, it bought him an additional ninety days of statutory

tolling to seek certiorari in the United States Supreme Court. Locke v. Saffle , 237

F.3d 1269, 1271-72 (10th Cir. 2001). If this additional ninety-day statutory

tolling period were applied, it would render York’s third federal habeas petition

timely. If York’s motion was a collateral proceeding, however, the motion did

not provide him with an additional tolling period for Supreme Court certiorari.

Id. at 1271 n.2.

Typically, a motion to withdraw a guilty plea is considered part of the

direct appeal process. See, e.g., Hickman v. Spears , 160 F.3d 1269, 1271 (10th

Cir. 1998) (noting Oklahoma state courts’ characterization of motion to withdraw

guilty plea as part of direct review process for procedural default purposes).

Here, however, York did not bring his motion until nearly twelve years after he

was convicted. By the time he brought the motion, he had already filed two state

habeas proceedings and one federal habeas. Moreover, the state court itself

characterized his motion as a post-conviction proceeding. See “Ruling on

-8-
Defendant’s Motion to Withdraw Guilty Plea,” R., doc. 9, Addendum “I” at 1

(“Although the matter here under consideration is a motion to withdraw a guilty

plea, it is considered as a post-judgment writ.”). We therefore conclude that

York’s motion to set aside guilty plea should be treated as part of the state

collateral review process, rather than as part of direct review, for purposes of the

AEDPA timeliness calculation.

2. Equitable tolling

York’s timeliness problem is that the one-year limitations period was not

tolled during the time his second federal habeas petition was pending. In Duncan,

533 U.S. 167, the very case that created the “no tolling” rule for prior federal

habeas petitions, concurring justices of the Supreme Court recognized that the

rule might pose problems for petitioners, like York, whose prior petitions had

been dismissed in order to exhaust state remedies. Id. at 182-84 (Stevens, J.,

concurring). These justices suggested that a federal court might apply equitable

tolling to relieve a petitioner of the consequences of the rule. Id.

This court has recognized that equitable tolling of the one-year statute of

limitations is available, but only in rare and exceptional circumstances:

AEDPA’s one-year statute of limitations is subject to equitable
tolling, but only in rare and exceptional circumstances. Equitable
tolling would be appropriate, for example, when a prisoner is actually
innocent, when an adversary’s conduct – or other uncontrollable
circumstances – prevents a prisoner from timely filing, or when a
prisoner actively pursues judicial remedies but files a defective

-9-
 pleading during the statutory period. Simple excusable neglect is not
sufficient.

Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000) (citations and quotations

omitted).

In a recent case, this court endorsed the equitable tolling principle as a

method of relieving a petitioner who had made a diligent effort to pursue his

habeas claims but had been trapped by the effect of Duncan on a prior dismissal.

In Hall v. Scott , 292 F.3d 1264 (10th Cir. 2002), the petitioner filed his habeas

petition on April 19, 2000, and it was dismissed on January 24, 2001, for failure

to pay the filing fee. He then refiled a second habeas petition on March 7, 2001,

which was dismissed as untimely. Although it was clear from the language of the

fee order that it was the petitioner’s responsibility to pay the filing fee or to

explain why he could not do so, this court nevertheless reversed the dismissal and

remanded for consideration of equitable tolling, concluding that the petitioner

could reasonably have relied on prior law in this circuit. We stated:

At the time of the dismissal of [petitioner’s] first petition on
January 24, 2001, the law in this Circuit was that “a federal habeas
petition is ‘other collateral review’ that tolls the one-year limitations
period under § 2244(d)(2).” Petrick v. Martin , 236 F.3d 624, 629
(10th Cir. 2001). The Supreme Court’s contrary holding in Duncan
was not issued until June 18, 2001, nearly five months after Hall’s
habeas petition was refiled. Under the rule of Petrick , his second
petition was indisputably filed well within the one-year period of
limitations set forth in AEDPA. We thus conclude that the district
court should have evaluated whether [petitioner] is entitled to the
benefits of equitable tolling for having diligently pursued his claims

-10-
 and demonstrated that the failure to timely file was caused by
extraordinary circumstances beyond his control.

Id. at 1268 (further quotation and footnotes omitted).

Like the petitioner in Hall , York diligently pursued his claims. The

Duncan decision was not issued until over a year after he filed his third federal

habeas petition. Although Petrick had also not been decided at the time York

filed his third petition, the law in this circuit was unsettled on the issue and the

statute is ambiguous. See Petrick , 236 F.3d at 626-28. We conclude that the

district court should have applied equitable tolling to relieve York from the one-

year statute of limitations. 4

CONCLUSION

In order to receive a COA on a procedural issue, York had to show both

“that jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel , 529 U.S. 473, 484 (2000). As the foregoing discussion indicates, York

has met the second of these two Slack criteria. Having quickly reviewed York’s

4
In Hall , we remanded for reconsideration of whether equitable tolling was
warranted. This was an appropriate result, given that the petitioner’s tardiness
may have been attributable in part to his failure to pay the appropriate filing fee
or to explain why he was unable to do so. Under the clear-cut factual
circumstances of this case, by contrast, we have no difficulty instructing the
district court to apply, rather than merely to reconsider, equitable tolling.

-11-
petition, we conclude that he has also shown a debatably valid claim of the denial

of a constitutional right. Gibson, 232 F.3d at 803. We therefore GRANT York’s

application for a COA. The judgment of the United States District Court for the

District of Utah dismissing York’s petition for writ of habeas corpus is vacated

and this matter is REMANDED for application of equitable tolling and

consideration of the merits of York’s petition.

-12-