805 F.3d 769
6th Cir.2015Background
- In September 2010 Steven Board pleaded guilty to first-degree drug trafficking and was sentenced to seven years on November 4, 2010; he did not file a timely direct appeal.
- Board filed a pro se motion for leave to file a delayed appeal under Ohio Appellate Rule 5(A) on June 29, 2011; the Ohio Court of Appeals denied it on July 27, 2011, and the Ohio Supreme Court dismissed his appeal on December 21, 2011.
- Board filed a federal habeas petition under 28 U.S.C. § 2254 on March 15, 2012 raising (1) denial of due process/equal protection for failure to inform him of appellate rights and denial of the delayed-appeal motion, and (2) ineffective assistance of counsel for failing to inform him of appellate rights.
- The magistrate judge and district court dismissed the habeas petition as untimely under AEDPA’s one-year statute of limitations, concluding the Rule 5(A) motion did not toll the limitations period and denying equitable tolling.
- The Sixth Circuit granted a COA on whether an unsuccessful Rule 5(A) motion tolls AEDPA’s limitations period and reversed, holding the timely-filed Rule 5(A) motion was “properly filed” and tolled § 2244(d)(2).
Issues
| Issue | Plaintiff's Argument (Board) | Defendant's Argument (Bradshaw) | Held |
|---|---|---|---|
| Whether a timely Rule 5(A) motion for leave to file a delayed appeal is a "properly filed" collateral application that tolls AEDPA § 2244(d)(2) | Board: He filed Rule 5(A) in compliance with state rules while AEDPA period had not expired; therefore it tolled the limitations period while pending | Respondent: Rule 5(A) is an exception to the direct-appeal time limit; an unsuccessful Rule 5(A) motion should be treated as untimely (not "properly filed") under Pace/Allen and therefore should not toll AEDPA | Held: A Rule 5(A) motion that complies with Ohio App. R. 5(A) is "properly filed" and tolled AEDPA § 2244(d)(2) while pending; the petition was timely |
Key Cases Cited
- Searcy v. Carter, 246 F.3d 515 (6th Cir. 2001) (motions for leave to file delayed appeal are collateral for tolling and may toll while pending)
- Artuz v. Bennett, 531 U.S. 4 (2000) (an application is "properly filed" when delivery and acceptance comply with governing rules)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (untimely postconviction petitions are not "properly filed" for § 2244(d)(2))
- Allen v. Siebert, 552 U.S. 3 (2007) (state filing time limits are conditions to filing; untimely petitions are not "properly filed")
- DiCenzi v. Rose, 452 F.3d 465 (6th Cir. 2006) (Rule 5 motions tolled AEDPA while pending where properly filed)
- Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003) (de novo review of AEDPA time-bar dismissals and discussion of Artuz)
- Evans v. Chavis, 546 U.S. 189 (2006) (an application is pending during the period between a lower court’s adverse determination and a timely filing of a notice of appeal)
- Stone v. Moore, 644 F.3d 342 (6th Cir. 2011) (analyzed Rule 5(A) denials in the context of procedural default; denial of relief does not necessarily mean the motion was improperly filed)