KEVIN MARK ABELA, Pеtitioner-Appellant, v. WILLIAM MARTIN, Director, Michigan Department of Corrections, Respondent-Appellee.
No. 00-2430
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: October 30, 2002
309 F.3d 338 | 2002 FED App. 0376P (6th Cir.)
Before: SILER, COLE, and CLAY, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 02a0376p.06. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 99-72095—Robert H. Cleland, District Judge. Argued: July 30, 2002.
COUNSEL
ARGUED:
OPINION
R. GUY COLE, JR., Circuit Judge. This action arises from a state manslaughter conviction and a subsequent petition for the issuance of a writ of habeas corpus pursuant to
Although several issues were raised in this appeal, we need address only two: (1) whether Abela‘s habeas petition is moot and thus not within our Article III jurisdiction; and (2) whether Abela‘s habeas petition is barred by the statute of limitations set forth in
BACKGROUND
A. Factual Background
Abela‘s underlying conviction stems from the stabbing death of Stanley Underwood at a party in the early morning hours of May 19, 1990. Abela arrived at a party at the home of Allen Howard in Rochester Hills, Michigan, sometime during the evening of May 18. At approximately 1 a.m. on May 19, Abela and a friend noticed a man, Jacob Sullivan, pushing a car out of the driveway of the home. Abela confronted Sullivan and an argument ensued, which then еrupted into a fistfight. After the fight broke up, Sullivan ran into the house to tell his older brother, Jerry, that someone had beaten him up.
A second fight began when Jerry Sullivan and Howard ran outside to confront Abela. Abela‘s nose was broken in the fight, which ended with Howard holding Abela down on the ground. Howard promised Abela that he would release him if he left the party immediately. Abela then left the party with his friend Ronald Wright.
Upon reaching the car, Wright realized he had forgotten his jacket and returned to retrieve it. Abela was waiting for Wright at the edge of the driveway when he was attacked by several guests from the party. Abela was knocked to the ground and surrounded by several assailants, who kicked and punched him about the face and body. Among this group of attackers was Stanley Underwood, who, during the course of the brawl, straddled Abela‘s chest. Abela thereupon drew a knife from a sheath on his belt and stabbed Underwood in the chest and left arm three times. Underwood died shortly afterwards.
Abela fled to a friend‘s house, where he called 911 and admitted to the operator that he had stabbed someone. After meeting the police at Howard‘s house, Abela was taken to a hospital emergency room for treatment. While at the emergency room, but before being treated for his injuries, Oakland County Police Sergeant Michael McCabe questioned Abela about the events leading up to the stabbing. Abela responded by stating, “[M]aybe I should talk to an attorney by the name of William Evans,” and handed Sergeant McCabe Evans‘s business card. Sergeant McCabe promised Abela that he would contact Evans, and left the room. Upon returning, McCabe made no mention of the fact that he had been unable to contact Evans, and proceeded to read Abela his Miranda rights. Abela signed a waiver form indicating that he had been informed of his Miranda rights and began giving a statement to Sergeant McCabe -- beginning with the phrase, “I‘ll tell you everything.” It does not appear that Sergeant McCabe took any steps toward contacting Evans before taking Abela‘s statement.
B. Procedural History
Abela was charged with second degree murder and carrying a concealed weapon in the stabbing death of Underwood. Before trial in the Oakland County Circuit Court, Abela‘s counsel sought dismissal of the weapons charge because the knife was not concealed -- it was carried in a sheath attached to the outside of Abela‘s belt. The trial judge granted that motion on September 12, 1990. On November 5, 1990, the prosecution filed a mоtion -- outside the applicable 14-day time limit -- seeking reconsideration of the dismissal.
The trial commenced in June 1991. During closing arguments, the prosecutor referred to a conversation between Abela and co-defendant Ronald Wright, a conversation that does not appear anywhere in the trial record. The prosecutor stated:
Do you think when they got back to that сar they were mad as hell? Both of them got shot down, pretty damn drunk, they are pretty pissed off. They‘ve lost the fight. They‘ve been thrown out. They‘ve been humiliated. They‘ve been embarrassed.
Not only that, Ron Wright says, “My damn coat‘s back there. Let‘s go get it.” [Abela then replied,] “Ronnie, better take this [Abela‘s knife] when we go back. Ain‘t nobody going to kick our ass anymore. Let‘s go back.”
Abela was convicted by a jury of voluntary manslaughter and carrying a concealed weapon on July 24, 1991. He was sentenced to a term of seven to fifteen yeаrs for voluntary manslaughter, and a concurrent forty months to five years of incarceration for carrying a concealed weapon.
Abela appealed his conviction by raising three issues in the Michigan Court of Appeals on February 17, 1992. The three issues were: (a) that his sentence was disproportionate to the crime; (b) that the trial court erred by reinstating the weapons charge; and (c) that the trial court erred by allowing the prosecution to present rebuttal testimony not raised in its case in chief. The Michigаn Court of Appeals affirmed Abela‘s conviction and sentence in an unpublished disposition. People v. Abela, No. 144005 (Mich. Ct. App. July 22, 1994). The Michigan Supreme Court denied Abela‘s delayed application for leave to appeal these issues on March 31, 1995. People v. Abela, No. 100783 (Mich. Mar. 31, 1995).
On August 20, 1996,1 Abela filed a motion for relief from judgment in the Oakland County Circuit Court, raising six claims: (a) Abela‘s statement at the hospital was involuntary because Sergeant McCabe ignored Abela‘s request for an attorney; (b) Abela‘s statement at the hospital
Abela was released to parole status on March 16, 1998, and discharged from parole on March 16, 2000 -- terminating his seven to fifteen year sentence for manslaughter. Abela‘s three
to five year sentence for carrying a concealed weapon ended on October 22, 1995.
On April 26, 1999, before his parole term had ended, Abela sought a writ of habeas corpus pursuant to
Abela appealed his denial of the motion to this Court. We granted his certificate of appealability on the issues before us on April 20, 2001.
DISCUSSION
1. STANDARD OF REVIEW
In an appeal of a district court‘s decision denying habeas relief under
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court determined that a state court‘s decision is contrary to clearly established federal law where it fails tо consider a rule of law that is embedded in the Court‘s jurisprudence at the time the state conviction became final. See id. at 380. In defining “clearly established law,” the Court held that “rules of law are sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather
This Court must presume that all determinations of factual issues made by the state court are correct unless the petitioner can rebut that presumption by clear and convincing evidence.
We examine Abela‘s claims under these parameters.
2. ANALYSIS
A. Whether Abela‘s habeas petition is within our Article III jurisdiction.
We note that subject matter jurisdiction over this matter is conferred by
Although subjеct matter jurisdiction is appropriate in this case, this Court must consider whether Abela‘s release from custody and the subsequent conclusion of his parole term render his appeal moot under Article III, § 2 of the United States Constitution. Where no actual case or controversy exists between the parties, or when “‘events occur during the pendency of a litigation which render the court unable to grant the requested relief,‘” then the case is moot and outside our jurisdiction. Speer v. City of Oregon, 847 F.2d 310, 311 (6th Cir. 1988) (quoting Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986)). Because mootness is a jurisdictional issue, we may raise it sua sponte on appeal even though the issue was neither raised nor briefed below. Berger v. Cuyahoga County Bar Ass‘n, 983 F.2d 718, 721 (6th Cir. 1993).
As long as a petitioner files a habeas petition attacking his underlying criminal conviction while incarcerated or in custody, even where he is later released before the petition is considered, he will satisfy the
Abela‘s habeas petition, filed while on parole, attacks his underlying criminal conviction. Because Abela was on parole when his habeas petition was filed, he meets the “in custody” requirements of
B. Whether Abela‘s habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1) .
Abela argues that the statute of limitations in
Abela‘s direct appeal ended on March 31, 1995, when the Michigan Supreme Court denied Abela‘s motion for relief from judgment. Because Abela‘s claim became final before the passage of AEDPA, the
C. Elements of this tolling calculation
Uncontested by thе parties is the 118 days of untolled time between April 24, 1996, when AEDPA was enacted, and August 20, 1996, when Abela filed his motion for relief from judgment. See Austin, 200 F.3d at 393;
1. Tolling during the time between a lower state court‘s decision and the filing of a notice of appeal to a higher state court on сollateral review of a petitioner‘s claims.
The statutory language of
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.
2. Tolling for the certiorari period for United States Supreme Court review of Abela‘s state post-conviction collateral review petition.
The remaining issue before us is whether
Section
Duncan concluded that in the operative tolling phrase of
Given that
A petition for certiorari to the United States Supreme Court is not “state post conviction relief.” Neither is such a petition “other state collateral relief.” As the Tenth Circuit observed in Rhine, [182 F.3d at 1156] a petition for a writ of certiorari to the United States Supreme Court is “simply not an application for state rеview of any kind . . . .”
Because Duncan mandates that
Most of the circuits that have addressed this issue also have held that state post-conviction collateral review is complete once the state‘s highest court has rulеd. See Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000), cert. denied, 531 U.S. 1166 (2001) (“[A]n application ‘for state post-conviction or other collateral review . . . is pending,’ [under]
time in which a petitioner could have petitioned the United States Supreme Court for certiorari.“); cf. Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000), cert. denied, 532 U.S. 950 (2001) (deciding not to toll for the ninety-day period in which a litigant potentially could have filed a petition for certiorari with the United States Supreme Court using the “properly filed application . . . [that] is pending” language of
While allowing tolling for Supreme Court review in this circumstance wоuld better effectuate the incentive for litigants to exhaust all available state remedies before proceeding in the lower federal courts, we are foreclosed from reaching this result under the authority of Duncan and Isham. As such, we hold that tolling of the one-year statute of limitations period in
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court in denying Abela‘s