Kеnneth Bernard ROUSE, Petitioner-Appellant, v. R.C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
No. 01-12
United States Court of Appeals, Fourth Circuit
Argued Sept. 24, 2002. Decided Jan. 7, 2003.
314 F.3d 698
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge KING joined. Judge WILLIAMS wrote a dissenting opinion.
DIANA GRIBBON MOTZ, Circuit Judge.
In this federal habeas petition, his first, Kenneth Bernard Rouse seeks relief on the ground, inter alia, that a juror who voted to convict and execute him deliberately concealed bias in order to win a seat on the jury. The district court held that Rouse‘s former lawyers filed this petition one day late and that Rouse presented no grounds for equitably tolling the applicable statute of limitations. Accordingly, the court dismissed Rouse‘s petition as untimely, denying him all federal habeas relief. Rouse appeals, challenging the determination that his petition was not timely filed and the refusal of equitable tolling. Although we agree that Rouse filed his petition one day late, given the exceptional circumstances in this case, we beliеve that the district court erred in refusing to toll the limitations period. Accordingly, for the reasons set forth within, we grant a certificate of appealability, vacate the judgment of the district court, and remand for further proceedings consistent with this opinion.
I.
At the outset, we emphasize the extremely early stage and sparse record of this case as it reaches us. The district court denied Rouse‘s petition as untimely on the basis of a record that did not even include the decision of the state post-conviction court, the dispositive decision for federal habeas review. We do not suggest any irregularity in this omission. The habeas rules only require the government to submit the state post-conviction court‘s decision at a later stage of the litigation. See
That limited record reveals that a North Carolina jury convicted Rouse, an African-American, of the brutal first degree murder, armed robbery, and attempted rape of a sixty-three-year-old white woman, Hazel Colleen Broadway. The same all-white jury then sentenced Rouse to death. On direct appeal, the Supreme Court of North Carolina affirmed Rouse‘s conviction and sentence. See State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994).
The record further reveals that, at some time after sentencing, Rouse discovered new evidence that the mother of one member of the jury that decided his fate had been sexually assaulted and murdered, also in connection with a robbery, by a man who was later executed for her murder.1 When all prospective jurors were asked for such information at voir dire, the victim‘s son had remained silent.
After serving on Rouse‘s jury, this juror allegedly stated that he had intentionally concealed his mother‘s tragic death and carefully crafted his other responses to voir dire questions, because he wanted to be on the jury that judged Rouse. Moreover, this juror assertedly expressed intense racial prejudice against African-Americans, calling them “niggers” and opining that African-Americans care less about life than white people do, and that African-American men rape white women in order to brag to their friends. Because the juror did not reveal his own family‘s tragedy or his apparent deep-seated racial prejudice, Rouse had no opportunity to object to the juror or challenge his ability to judge and sentence Rouse impartially.
On February 8, 2000, Rouse filed a petition for a writ of habeas corpus in the district court, pursuing a number of claims. In particular, he contended that the juror‘s racial bias and personal prejudice based on his family history had denied Rouse his right to a fair and impartial jury under the
The State moved to dismiss the petition as untimely, under the one-year statutory deadline set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA). See
II.
The Supreme Court has directed that when, as here, a district court “denies a habeas petition on procedural grounds without reaching the prisoner‘s underlying constitutional claim, a COA [certificate of appealability] should issue when the prisoner shows, at least, 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). Thus, “[d]etermining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claims and one directed at the district court‘s procedural holding;” each is part of a “threshold inquiry.” Id. at 484-85.
Rouse, like the petitioner in Slack, “did not attempt to make a substantial showing of the denial of a constitutional right, instead arguing only that the District Court‘s procedural rulings were wrong.” Id. at 485. In Slack, moreover, because the constitutional claim “was neither briefed nor presented below,” the Supreme Court confined its inquiry to the “second component” of the COA analysis, i.e. “whether jurists of reason could conclude that the District Court‘s dismissal on procedural grounds was debatable or incorrect.” Id. Given the responsibilities that immediate appellate
Applying a “quick look” to the limited record before us reveals that at least one of Rouse‘s claims—the allegations of juror bias—facially alleges the denial of a constitutional right. For this reason, at the very least, “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right,” Slack, 529 U.S. at 484, and so we cannot deny a COA on the ground that Rouse has failed to state a valid constitutional claim. Accordingly, we turn our attention to the second threshold inquiry: whether the district court “was correct in its procedural ruling.” Id.
Rouse contends that both the district court‘s holding that his habeas petition was not timely and the court‘s refusal to toll the statute of limitations were incorrect. We consider each of these contentions in turn.
III.
According to Rouse, the district court committed two separate legal errors in ruling that he filed his petition late.
A.
Initially, Rouse maintains that, although the Supreme Court of North Carolina denied certiorari on February 5, 1999, his state post-conviction review remained “pending” under the AEDPA past that date, delaying the start of the one-year period in which he could have filed a timely petition. See
Rouse first contends that his motion for appropriate relief remained pending for twenty days after certiorari was denied, until February 25, 1999, because North Carolina procedural rules statе that an appellate mandate should issue twenty days after an opinion. North Carolina Rule of Appellate Procedure 32(b) provides that “[u]nless a court orders otherwise, its clerk shall enter judgment and issue the mandate of the court 20 days after the written opinion of the court has been filed with the clerk.” N.C. R. App. P. 32(b). Rouse claims that the mandate did not issue on the Supreme Court‘s denial of certiorari in his case until February 25—but he has submitted no evidence that any mandate ever issued in his case. In fact, as the clerk of the Supreme Court of North Carolina explained in an affidavit, the general practice of that court is that Rule 32(b) mandates do not issue after summary denials of certiorari, such as the order in which the court denied certiorari in Rouse‘s case. Cf. Felton v. Barnett, 912 F.2d 92, 95 (4th Cir. 1990) (concluding that a “denial of certiorari [from the Supreme Court of North Carolina] is not to be given the effect of a judgment on the merits” (internal quotation marks and citation omitted)). We agree with Rouse that the inapplicability of Rule 32(b) is less than
Rouse also argues that his post-conviction review remained pending during the period in which he could have sought rehearing from the Supreme Court of North Carolina. North Carolina law does not support this claim. Petitions for rehearing were not (and are not) available in criminal matters, see N.C. R. App. P. 31(g), and a North Carolina statute declares that a motion for appropriate relief is part of the original action. See
B.
Rouse bases his second timeliness argument on the “mailbox rule” contained in
Rule 6(e) adds three days to a prescribed period “[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the nоtice or paper is served upon the party” by mail or other means allowed under the rule.
We thus conclude that the district court correctly held that Rouse‘s petition was filed one day late. See
Alternatively, Rouse maintains that, in light of his former counsel‘s incompetence, the lack of clarity as to when the limitations period began, the brevity of the delay in filing the petition, the lack of prejudice to the State, the compelling nature of his juror bias claim, and the death sentence he faces, the district court incorrectly refused to toll the statute of limitations by one day. “We review de novo the district court‘s decision not to apply the doctrine of equitable tolling inasmuch as the [relevant] facts in this case are undisputed and the district court determined as a matter of law that there were no grounds that would justify equitable tolling in [this] case.” Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001) (citation omitted); see, e.g., Spencer, 239 F.3d at 629-31 (applying de novo review to a legal issue in equitable tolling analysis and holding that “the district court erred [rather than abused its discretion] in not tolling the statute of limitations for the entire period from Spencer‘s initial filing of his second MAR on April 23, 1997, until its final disposition on January 13, 1999“); Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000) (applying de novo review in equitable tolling analysis).3
“Equitable tolling is a background rule that informs . . . construction of federal statutes of limitations . . . .” Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 122 S. Ct. 999, 1010 n. 5, 152 L. Ed. 2d 27 (2002) (Stevens, J., dissenting). In imposing a statute of limitations on federal habeas petitions in the AEDPA, Congress must have accepted the possibility that some cases would receive no federal habeas review. See
Several factors would seem to support tolling in this case.4 Rouse has diligently pursued every previous avenue of review available to him. Cf., e.g., Spencer, 239 F.3d at 630 (finding “delay[ ] at every juncture of [Spencer‘s] post-plea, state and federal proceedings“). Moreover, the record reveals that Rouse himself neither knew of nor consented to a late filing of his federal habeas petition, and no evidence suggests that the late filing was a tactical decision of counsel. Rather, Rouse‘s former counsel confronted last-minute difficulties and, without Rouse‘s knowledge, made an appalling error in calculating the limitations period. Furthermore, the State has made no showing that it has been prejudiced in any way by the one-day delay in the filing of Rouse‘s first habeas
If Rouse had offered only these reasons, however, our precedent might well have foreclosed the application of equitable tolling in this case. We have held that a “mistake by a party‘s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party‘s control where equity should step in to give the party the benefit of his erroneous understanding.” See Harris, 209 F.3d at 331; accord Spencer, 239 F.3d at 628-29. But we reached this conclusion in non-capital cases, involving greater delay, and far less compelling habeas claims that had received at least one hearing in state court. Id. Moreover, in so holding, we expressly recognized that equitable tolling is “a disсretionary doctrine that turns on the facts and circumstances of a particular case” and, therefore, “does not lend itself to bright-line rules.” Harris, 209 F.3d at 330 (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)). Indeed, we explained that, although some statutes of limitations “serve[ ] policy interests that would be adversely affected if the statutory limitations provisions were not strictly adhered to,” the habeas context is different, warranting greater flexibility in the application of the AEDPA‘s statute of limitations. Id. at 329 (emphasis added).
Thus, in determining whether to exercise its equitable power to toll the statute of limitations here, the district court was required under Harris to consider the particular “facts and circumstances” of Rouse‘s case. They are compelling. Rouse filed his petition only one day late.5 Cf. Spencer, 239 F.3d at 631 (five days late); Harris, 209 F.3d at 328 (six months late). Although the petition was late, his counsel‘s disastrous error rested on plausible, albeit incorrect, legal theories, some of which have since been clarified. See Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001) (noting lack of clarity in the relevant law and plausibility of a petitioner‘s legal theory in equitably tolling the AEDPA), cert. denied, 534 U.S. 944, 122 S. Ct. 323, 151 L. Ed. 2d 241 (2001). Moreover, Rouse has never received a hearing on his habeas claims, in any forum—state or federal. Cf. Spencer, 239 F.3d at 627-28 (two evidentiary hearings in state court); Brief for Appellant in Harris, 209 F.3d 325, at 326 (evidentiary hearing in state court). Without equitable tolling, he will lose any hope of receiving such a hearing and will be afforded no federal habeas review at all.
Furthermore, Rouse presents what must be considered on its face a powеrful constitutional claim: that a juror‘s personal vengeance and racial bias infected his death sentence. To date, he has never received, even post-sentence, any opportunity to explore at a hearing—before any court—the evidence that one of his jurors harbored an invidious prejudice against African-Americans, the evidence as to the potential effect of the sexual assault and murder of the juror‘s mother on his impartiality, or the evidence that in fact the juror concealed active bias—all matters that may require credibility determinations. If proved, these facts support a strong constitutional claim. See Morgan v. Illinois, 504 U.S. 719, 728, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992)
Moreover, the sentence that is assertedly tainted by racial and personal bias is a death sentence. Until today, we have not had occasion to consider equitable tolling in a habeas case involving a sentence of death. Cf. Spencer, 239 F.3d at 627 (life sentence); Harris, 209 F.3d at 326 (same). We have, however, implicitly recognized that the presence of a dеath sentence affects the equitable tolling analysis. Thus, in holding that equitable tolling is proper under the AEDPA, we have cited, with approval, the statement that although in some contexts, strict limitations rules may have to yield “occasional injustices” “in order to maintain a workable regime,” these “occasional injustices . . . are, decidedly not an acceptable cost of doing business in death penalty cases.” Harris, 209 F.3d at 329 (citing Calderon v. United States Dist. Court for the Cent. Dist. of Cal. (Beeler), 128 F.3d 1283, 1288 n. 4 (9th Cir. 1997) (internal quotation marks and citations omitted; emphasis added), over-
The fact is that death is different. The phrase itself is timeworn and familiar—because it is true. Like the Supreme Court, we must recognize that “in its finality,” death “differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). For this reason, the death penalty presents different and far more serious concerns than any other sanction. See, e.g., Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 2441, 153 L. Ed. 2d 556 (2002) (“[T]here is no doubt that ‘[d]eath is different.‘” (citation omitted)); Gardner v. Florida, 430 U.S. 349, 357 (1977) (stating that “death is a different kind of punishment“) (opinion of Stevens, Stewart, and Powell, JJ.); see also Bracy v. Schomig, 286 F.3d 406, 415 (7th Cir. 2002) (en banc) (“[W]e are again mindful that death is indeed different.“), cert. denied, 123 S. Ct. 169, 154 L. Ed. 2d 161 (2002). In short, the conclusion “that ‘death is different’ . . . mean[s] that the firm view of our society demands that it be treated differently in certain identifiable respects. . . .” Thompson v. Oklahoma, 487 U.S. 815, 877-78 (1988) (Scalia, J., dissenting).
The Supreme Court has emphasized that courts, at all levels, considering the deliberate infliction of death are to act with particular care. The Court has insisted that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination,” that is, “the procedure by which the State imposes the death sentence,” to “ensur[e] that the death penalty is not meted out arbitrarily or capriciously.” California v. Ramos, 463 U.S. 992, 998-99 (1983) (emphasis in original); accord Harmelin v. Michigan, 501 U.S. 957, 995 (1991); Caldwell v. Mississippi, 472 U.S. 320, 329 (1985); see also Bracy, 286 F.3d at 412 (“Like all others sentenced to death, Bracy and Collins are entitled to our painstaking review of their convictions and death sentence because, as the Supreme Court has often recognized, death is different.” (citation omitted)).
Indeed, the Supreme Court itself has been willing “in the interests of justice” to overlook requirements that it would ordinarily impose in non-capital cases. Eddings v. Oklahoma, 455 U.S. 104, 117 n. * (1982) (O‘Connor, J., concurring) (quoting Wood v. Georgia, 450 U.S. 261, 265 n. 5 (1981)). For example, the Court has treated the requirement that an argument be raised below, ordinarily a prerequisite for appellate review, as merely “technical [ ].” Id. (O‘Connor, J., concur-
We look to the Court‘s example today. Like the Supreme Court, we acknowledge the special demands of cases in which a defendant stands sentenced to death. Given that this case, in which Rouse faces execution, involves the shortest possible delay in filing the habeas petition, a total lack of prejudice to the State, a petitioner who was diligent in all other regards, and habeas claims, including at least one apparently compelling constitutional claim, that will receive no federal habeas review and no hearing in any court if the limitations period is not tolled, we conclude that the district court‘s refusal to toll the limitations period was indeed “unconscionable.” Harris, 209 F.3d at 330. If ever a case was suitable for an exercise of a court‘s discretion—the most minor exercise imaginable, a one-day tolling of a limitations period—surely, this is that case.
In reaching this conclusion, we hаve considered the limited impact of such a decision, both on our system of justice as a whole, and within this circuit. A number of systemic and legal concerns that are often at the heart of habeas jurisprudence on the merits have no relevance to equitable tolling. In particular, equitable tolling raises none of the concerns related to constitutional interpretation that are sometimes invoked in opposition to a “‘death-is-different’ jurisprudence,” Shafer v. South Carolina, 532 U.S. 36, 55 (2001) (Scalia, J., dissenting); see Simmons v. South Carolina, 512 U.S. 154, 178-79 (1994) (Scalia, J., joined by Thomas, J., dissenting), and it does not in any way affect the “standard of review on federal habeas corpus,” because AEDPA‘s stringent standards of review of course still apply. Herrera v. Collins, 506 U.S. 390, 405 (1993) (quoting Murray v. Giarratano, 492 U.S. 1, 9 (1989) (plurality opinion)); see
Nor do we see any cause to fear that within our own circuit, equitable tolling in Rouse‘s case might “loose the rule of law
Before or after a holding that limitations should be tolled in Rouse‘s case, a deliberate decision to file late to gamble any chance of federal review of a capital petitioner‘s habeas claims in hopes that equity would slightly extend the deadline—would constitute recklessness of a nature and a magnitude that we decline to impute to our Bar. Thus, the limited precedent established by tolling in this case creates little incentive for habeas petitioners to file after the deadline. Furthermore, even if this were attempted, equitable tolling is “a discretionary doctrine that turns on the facts and circumstances of a particular case,” id. at 330 (internal quotation marks and citation omitted), and application of the doctrine will continue to depend on a court‘s confidence that “there is no evidence of abuse of the process.” See Fahy, 240 F.3d at 245. Most importantly, the strength of the claims in a habeas petition obviously affects a court‘s decision to exercise its equitable power to toll limitations, and few petitioners present claims as facially compelling as Rouse‘s. See Lonchar v. Thomas, 517 U.S. 314, 320, 322, 325 (1996) (emphasizing the distinction between habeas claims suitable for summary dismissal and those warranting more attention in reversing a lower court‘s employment of “special ad hoc ‘equitable’ reasons not encompassed within the framework” of the Habeas Corpus Rules to bar all consideration of a first federal capital habeas petition); cf. Spencer, 239 F.3d at 630 n. 2 (suggesting that petitioner‘s underlying habeas claim was weak when determining whether district court‘s tolling decision was correct).
Because this is Rouse‘s first federal habeas petition, moreover, a court must exercise great care before allowing it to be summarily dismissed. See Lonchar, 517 U.S. at 324 (“Dismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty.” (emphasis in original)). Of course, in this case as in any other, the district court on remand remains free to dispose promptly of any claim that it determines lacks merit.
We note that other courts have tolled the AEDPA limitations period in cases involving more egregious delay. In a capital case involving a petition that was thirty-five days late due to attorney error in interpreting debatable procedural provisions, the Third Circuit tolled the precise statute at issue here. See Fahy, 240 F.3d at 245; accord Banks v. Horn, 271 F.3d 527, 534-35 (3d Cir. 2001), rev‘d on other grounds, 536 U.S. 266 (2002) (applying equitable tolling in a capital case involving a petitioner convicted of murdering thirteen people). The court reasoned that a court “must allow less than ‘extraordinary’ circumstances to trigger equitable tolling of the AEDPA‘s statute of limitations when a [capital] petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair.” Id.; see also Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002) (tolling AEDPA‘s statute of limitations despite a procedural defect and listing cases); Lagrone v. Cockrell, 2002 WL 1968246, at *8-9 (N.D. Tex. Aug. 19, 2002); DeJesus v. Miller, 215 F. Supp. 2d 410, 412 (S.D.N.Y. 2002). Like the Third Circuit, we believe it is apprоpriate that a court toll limitations “under the facts of this capital case where there is no evidence of abuse of the process.” Fahy, 240 F.3d at 245; accord Banks, 271 F.3d at 535. In view of the facts and circumstances of this
V.
Rouse faces his death with reason to believe that one of the twelve citizens entrusted with doing impartial justice in his case sought so eagerly to condemn him that the juror deliberately misled the court by hiding basic facts as to his particular bias against Rouse and his contempt for all African-Americans. In Rouse‘s interest and in the interest of justice, we will not allow one day‘s delay to rob a man on death row of all federal habeas review of such a serious and troubling claim. Although tolling will remain extremely infrequent even in capital cases, we must recognize the rare circumstance in which equity demands tolling.
For these reasons, we believe that the district court was incorrect in refusing to toll the statute of limitations by one day. Accordingly, we must grant a certificate of appealability. Whether Rouse can prove his allegations of juror bias, or any of his other underlying claims, remains to be seen. The district court must “make the first assessment of their underlying merit.” Jefferson, 222 F.3d at 289; see also Mateo, 310 F.3d at 41-42. Therefore, we vacate the judgment of the district court and remand the case for further proceedings consistent with this oрinion.
VACATED AND REMANDED.
WILLIAMS, Circuit Judge, dissenting.
I agree with the majority‘s conclusion that Rouse‘s petition was untimely because it was filed more than one year after the state court denied Rouse‘s petition for certiorari.1 I disagree, however, with the majority‘s conclusion that ordinary attorney error coupled with sensational allegations justifies equitable tolling in capital cases. I would affirm the district court‘s decision that equitable tolling is not appropriate in this case. Equitable tolling “is appropriate when, but only when, ‘extraordinary circumstances beyond [the petitioner‘s] control prevented him from complying with the statutory time limit.‘” Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). Rouse has not shown extraordinary circumstances beyond his control. By allowing ordinary attorney error to equitably toll the limitations period, the majority upsets the careful balance that Congress crafted in the Antiterrorism and Effective Death Penalty Act (AEDPA) statute of limitations, even where, as here, it is plain that the petitioner is guilty and properly convicted of an extraordinarily heinous crime.2 Thus, I respectfully dissent.
We may not entertain Rouse‘s appeal unless we grant a certificate of appealability (COA).
Where a district court “denies a habeas petition on procedural grounds without reaching the prisoner‘s underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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.” Id. “Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal.” Id. at 485. I do not believe that the district court‘s procedural ruling is debatable, and thus, do not believe that Rouse has made the required showing. Because my friends in the majority, however, have concluded that Rouse has made a substantial showing of the denial of a constitutional right, the COA has been granted.3 Therefore, I, too, reach the
was hanging off. Hinshaw ordered defendant to freeze and pinned him behind the door. Defendant was then handcuffed and taken out of the room. Lieutenant Charles Bulla searched defendant in the store and found in defendant‘s pocket three rolls of pennies in a plastic container. Defendant was then taken away. Defendant did not resist the officers at this or any time. No odor of alcohol was found on defendant‘s breath.
On the floor of the storage room was Hazel Colleen Broadway, lying in a pool of blood. She tried to tell Hinshaw something but soon died. Broadway was covered in blood. There were handрrints on her body. She was wearing a blouse, and her pants had been pulled down to her feet. . . . [She had] a knife in [her] neck. The blade part of the knife was bent in a ninety-degree angle just below the handle.
More officers soon arrived at the scene who surveyed the store and collected evidence. The store was in disarray. A cigarette stand was overturned, and cigarettes were strewn about the floor. The cash register was turned sideways. Two empty rolls for pennies were on the floor. There was some other debris on the floor beside a trash can and some other penny rolls which seemed to have been knocked out of the safe. The bar stool behind the cash register had some blood on it. There were also spots of blood near the cash register . . . .
[B]lood on defendant‘s hands, shirt and underwear was consistent with samples of blood taken from the victim. . . .
[The medical examiner] concluded that the victim died as a result of blood loss caused by a stab wound to the left neck, severing the carotid artery and jugular vein. A person could live ten to fifteen minutes after being stabbed in that location. In addition to the lethal knife wound, there were numerous other wounds to the victim including bruises, stab wounds and abrasions to her neck, chest, stomach, arms, shoulders, thighs, knee, palm, thumb, back, and elbow. Many of these were consistent with a sharp cutting instrument. Other injuries were consistent with a blunt instrument.
State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 548 (1994) (direct appeal).
The district court dismissed Rouse‘s petition as untimely because it was filed after the one-year limitations period and “[t]he extant case law does not provide for equitable tolling” based on a “miscalculation by counsel” about the statute of limitations.5 (J.A. at 330-33.) Rouse argues that equitable tolling should apply because the conduct of his former attorneys was “grossly negligent” and “unprofessional.”6 (Appellant‘s Br. at 27-28.) Equitable tolling “has been applied in ‘two generally distinct kinds of situations. In the first, the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant. In the second, extraordinary circumstances beyond plaintiffs’ control made it impossible to file the claims on time.‘” Harris, 209 F.3d at 330 (quoting Fisher v. Johnson, 174 F.3d 710, 713 (9th Cir. 1999)). “As a consequence, neither ‘excusable neglect’ nor ignorance of the law is sufficient to justify equitable tolling.” Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002) (quoting Coleman v. Johnson, 184 F.3d 398, 402 (5th
We recently held, in the context of a habeas petition, that “a mistake by a party‘s counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party‘s control where equity should step in to give the party the benefit of his erroneous understanding.” Harris, 209 F.3d at 331; see also Fierro, 294 F.3d at 683 (“[C]ounsel‘s erroneous interpretation of the statute of limitations provision cannot, by itself, excuse the failure to file [the] habeas petition in the district court within the one-year limitations period.“); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (“[A]ttorney error [is] inadequate to create the ‘extraordinary’ circumstances equitable tolling requires.“); Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999) (refusing to apply equitable tolling where late filing was caused by attorney‘s use of ordinary mail to send petition less than a week before it was due); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (holding that a lawyer‘s miscalculation of the limitation period was not a valid basis for equitable tolling). As further support for the proposition that attorney error is not an extraordinary circumstance, I note that attorney error during habeas proceedings is not itself a ground for relief in a § 2254 proceeding. See
II.
My colleagues in the majority reach a contrary result by concluding that we need not follow our equitable tolling decisions in Harris v. Hutchinson and Spencer v. Sutton because this is a capital case. See ante at 708 (noting that Harris would continue to apply in “all non-capital petitions“). After casting aside the restrictions of Harris, the majority concludes that the length of Rouse‘s delay, the lack of an evidentiary hearing, the “plausibility” of Rouse‘s counsel‘s legal error, and the “strength” of Rouse‘s claim justify equitable tolling. See ante at 705. I must disagree with the majority on both of these conclusions. The procedural rules for post-conviction review of capital and noncapital cases are the same. Even if we were allowed to create special exceptions for capital cases, by the majority‘s own criteria, this case would not warrant such treatment because Rouse‘s claim, which must be evaluated in light of the deference that we are statutorily required to give to state court factual findings and conclusions of law, is far from strong.
placed him “in the extraordinary situation of believing that he had counsel when, in fact, he had counsel in name only.” Id.
Even assuming that such utter abandonment constitutes extraordinary circumstances “external to the party‘s own conduct,” Harris, 209 F.3d at 330, justifying equitable tolling, those circumstances are not present here. Despite Rouse‘s attеmpts to characterize his prior attorneys’ conduct as “grossly negli-
A.
The majority initially lists several reasons why our recent cases applying equitable tolling in the habeas context do not control this case, see ante at 705 (noting that Harris and Spencer were “non-capital cases, involving greater delay, and far less compelling habeas claims that had received at least one hearing in state court“), but concludes that Harris continues to apply to all noncapital cases, see ante at 708 (“Of course, all non-capital petitions continue to be governed by Harris.“). To support its position that the equitable tolling analysis should be radically different in capital cases, the majority cites a number of Supreme Court cases for the abstract proposition that “death is different,” but the majority ignores the specific holdings of those cases. While it is undeniable that the Court has treated death differently, it has done so primarily by requiring heightened procedural safeguards at trial.9
Any distinctions between the procedures required in capital and noncapital cases “are primarily relevant to trial,” and the Supreme Court “has generally rejected attempts to expand any [such] distinctions further.” Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 281 (1998) (plurality opinion); see, e.g., Herrera v. Collins, 506 U.S. 390, 405 (1993); Murray v. Giarratano, 492 U.S. 1, 8-10 (1989) (plurality opinion); Satterwhite v. Texas, 486 U.S. 249, 256-58 (1988);
gent” and thus akin to such abandonment, it is simply not true that Rouse‘s attorneys took no action at all. They filed the petition, albeit one day late. Theirs was an ordinary legal error to which the principles of equitable tolling do not apply.
In addition, the Supreme Court has repeatedly declined to treat death differently in the post-conviction context. In Smith v. Murray, a capital case, the Court specifically rejected the claim that the principles governing procedural default “apply differently depending on the nature of the penalty a State imposes for the violation of its criminal laws.” Smith, 477 U.S. at 538. Similarly, in Giarratano, the Court concluded that “the rule of Pennsylvania v. Finley, 481 U.S. 551 (1987) [that there is no constitutional right to counsel in state post-conviction proceedings] should apply no differently in capital cases than in nоncapital cases.” Giarratano, 492 U.S. at 10 (plurality opinion); see also Herrera, 506 U.S. at 405 (holding that claims of actual innocence are not grounds for habeas relief even in a capital case and noting that “we have ‘refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus‘” (quoting Giarratano, 492 U.S. at 9 (plurality opinion))); cf. Coleman, 501 U.S. at 750 (applying, in a capital case, the general requirement of cause and prejudice to overcome a state procedural bar).
The cases cited by the majority are not to the contrary. For example, quoting California v. Ramos, 463 U.S. 992, 998-99 (1983), the majority states that “the Court has insisted that ‘the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination,’ that is, ‘the procedure by which the State imposes the death sentence,’ to ‘ensur[e] that the death penalty is not meted out arbitrarily or capriciously.‘” Ante at 707. As this quotation reveals, “the Court‘s principal concern has been more with the procedure by which the State imposes the sentence.” Ramos, 463 U.S. at 999. This fits nicely with the decisions quoted above, which acknowledge that heightened procedural safeguards may be necessary at trial.10 We deal today with the district court‘s decision on habeas review not to toll the AEDPA limitations
Those cases cited by the majority that discuss appellate decision-making do not support the majority‘s position that, in capital cases, the doctrine of equitable tolling allows courts to rewrite the AEDPA statute of limitations. The majority, for example, quotes Justice O‘Connor‘s concurrence in Eddings v. Oklahoma, 455 U.S. 104, 117 n. * (1982): “Indeed, the Supreme Court itself has been willing ‘in the interests of justice’ to overlook requirements that it would ordinarily impose in non-capital cases. . . . For example, the Court has treated the requirement that an argument be raised below, ordinarily a prerequisite for appellate review, as merely ‘technical [ ].‘” Ante at 707 (alteration supplied by majority). Justice O‘Connor‘s discussion, however, pertained to the question of whether an argument had been waived below, not the far more serious matter of whether to apply a narrow equitable exception to a statutory limitations period enacted by Congress and absolute by its terms.
The majority also quotes Justice Scalia‘s concurrence in Dobbs v. Zant, 506 U.S. 357, 360 (1993): “I am willing to make an exception from that [previously stated ‘general’ internal] rule in capital cases—but only where there is a realistic likelihood that the ‘technical error’ affected the conviction or the sentence.” Ante at 708 (emphasis and alterations supplied by majority). The majority fails to note, however, that the “previously stated ‘general’ internal” rule to which the quoted passage refers is simply the Court‘s internal presumption against granting certiorari in cases that have little importance beyоnd the parties involved; Justice Scalia certainly did not say that exceptions should be made to rules of law in capital cases.
Again, it is true that the Supreme Court has treated death differently in the sense that capital cases call for heightened procedural safeguards at trial. But the majority establishes a special capital-case-only rule for determining whether to toll the AEDPA‘s limitations period. And, as we have explained, the Court has generally refused to apply different standards to capital cases in the habeas context. The majority fails to cite even a single Supreme Court case applying different standards to capital cases on habeas review.11
Id. at 349, 358 (holding that the judge cannot “impose the death sentence on the basis of confidential information which is not disclosed to the defendant or his counsel“); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion) (holding that mandatory death sentences for first-degree murder are unconstitutional); Bracy v. Schomig, 286 F.3d 406, 415 (7th Cir. 2002) (en banc) (evaluating judge‘s actions during sentencing phase of trial), cert. denied, 123 S. Ct. 169, 154 L. Ed. 2d 161 (2002).
Even if I were to agree with the majority that the fact that a death sentence has been imposed changes the equitable tolling analysis, the factors that the majority considers do not justify equitable tolling in this case. First, the length of Rouse‘s delay is irrelevant. “At the margins, all statutes of limitations and filing deadlines appear arbitrary. The AEDPA relies on precise filing deadlines to trigger specific aсcrual and tolling provisions. Adjusting the deadlines by only a few days in both state and federal courts would make navigating the AEDPA‘s timetable impossible. Such laxity would reduce predictability and would prevent us from treating the similarly situated equally.” Lookingbill v. Cockrell, 293 F.3d 256, 264-65 (5th Cir. 2002) (declining to equitably toll when the petition was only four days late); cf. Spencer, 239 F.3d at 631 (declining to equitably toll when the petition was only five days late). Second, the lack of a hearing on Rouse‘s claims cannot be relevant because, as the majority notes, “[i]n imposing a statute of limitations on federal habeas petitions in the AEDPA, Congress must have accepted the possibility that some cases would receive no federal habeas review.” Ante at 704.
The majority also states that equitable tolling should apply because Rouse‘s “disastrous error rested on plausible, albeit incorrect, legal theories.” Ante at 705. The majority cites Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001), for the proposition that reasonable, but incorrect, interpretations of law support equitable tolling. See ante at 705, 709. In Fahy, however, the law that the petitioner misinterpreted was “inhibitively opaque.” Fahy, 240 F.3d at 245. Further, the court noted that it had previously decided that it “could not confidently determine” how the state court would rule; thus, the petitioner‘s misjudgment was reasonable because “[i]f we could not predict how the Pennsylvania court would rule on this matter, then surely we should not demand such foresight from the petitioner.” Id. The law underlying Rouse‘s incorrect theories, as discussed below, was not unclear or inhibitively opaque. Nor had any court in this circuit issued a decision indicating that the law was unclear. Thus, Fahy does not support the majority‘s position that ordinary attorney error justifies equitable tolling if the error was plausible. Cf. Fierro, 294 F.3d at 683 (“Although the application and interpretation of the AEDPA statute of limitations was somewhat unsettled during this period, we think that such uncertainty should have militated against taking an unnecessary risk by waiting to file a . . . habeas petition.“).
Moreover, unlike the majority, I do not believe that Rouse‘s legal theories were plausible. Rouse first argues that, under North Carolina Rule of Appellate Procedure 32(b), the North Carolina Supreme Court‘s denial of certiorari did not become final until twenty days after the denial was filed when the mandate issued. The majority finds that “the inapplicability of Rule 32(b) is less than clear.” Ante at 702-03. As the majority notes, however, mandates do not issue after summary denials of certiorari in North Carolina, and more importantly, Rouse has submitted no evidence that any mandate issued in his case. See ante at 702-03. Thus, Rule 32(b) clearly did not apply. Rouse also argues that the “mailbox rule” contained in
162 F.3d 295, 299-300 (5th Cir. 1998) (concluding that equitable tolling of the AEDPA limitations period was not available to a petitioner who was responsible for missing the deadline), cert. denied, 525 U.S. 1091 (1999).
Finally, the majority contends that “[m]ost importantly, the strength of the claims in a habeas petition obviously affects a court‘s decision to exercise its equitable power to toll limitations.” Ante at 709 (citing Lonchar v. Thomas, 517 U.S. 314, 320, 322, 325 (1996)). But Lonchar, a pre-AEDPA case, has nothing at all to do with equitable tolling, and it certainly does not hold that we should consider the strength of the claims in a habeas petition when deciding whether equitable tolling is appropriate.12 To the extent that Lonchar informs the analysis, however, it reinforces my belief that we should follow our equitable tolling decisions that restrict equitable tolling to narrow circumstances not present in this case. See Cantu-Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir. 1998) (“[C]onfirmation that a statutory limitations period should be enforced appears in the Supreme Court‘s . . . decision in Lonchar v. Thomas . . . .“).
At issue in Lonchar was whether “the Court of Appeals properly dismiss[ed][a] first habeas petition for special ad hoc ‘equitable’ reasons not encompassed within the framework of [Habeas Corpus] Rule 9.” Lonchar, 517 U.S. at 322. In concluding that the court of appeals had erred, the Supreme Court stressed that “Congress and the framers of the Rule” undertook a balancing of interests, “which courts may not undermine through the exercise of background equitable powers.” Id. at 327 (emphasis added); see Cantu-Tzin, 162 F.3d at 298 (“The tenor of the majority discussion in Lonchar is that federal courts should not intervene to create equitable reasons for denying stays of execution when federal law and the habeas rules have prescribed principles applicable to the complex mix of equities in capital cases.“). Here, no less, by enacting the AEDPA, Congress has balanced the competing interests—a balance embodied in
Even if I were to agree with the majority that the strength of the claims in a petition should affect a court‘s decision to invoke equitable tolling, Rouse‘s claims, which must be evaluated in light of the deference that we statutorily are required to give to state court factual findings and conclusions of law, are far from strong.13 See
The majority reports that after the trial, Rouse learned that the mother of one of his jurors was murdered, and that “[w]hen all prospective jurors were asked for such information at voir dire, the victim‘s son had remained silent.” Ante at 700. Next, on the strength of Rouse‘s bare allegations and the affidavit of a law student who spoke with the juror four years after Rouse‘s trial ended, the majority states that “this juror assertedly expressed intense racial prejudice against African-Americans.” Ante at 700; see also ante at 710 (“[T]he juror deliberately . . . hid[ ] . . . his contempt for all African-Americans.“).
The majority does not provide the clear and convincing evidence necessary for disturbing the State MAR court‘s specific finding that the juror did not hear the question asked at voir dire about connections to victims of violent crimes. See North Carolina v. Rouse, No. 91-CRS-3316-17 (N.C. Super. Ct. Aug. 2, 1996) (unpublished) (MAR Court) at 6-7, 15.14 Nor, of course, does the majority so much as allude to the State MAR court‘s finding
Moreover, the majority does not and cannot show that the State MAR court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,”
The majority cites Morgan v. Illinois, 504 U.S. 719, 728 (1992), and McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984), in support of its assertion that Rouse has advanced a strong juror misconduct claim, but the state court decision was not contrary to, or an unreasonable application of, these cases. Morgan dealt with whether a trial court, conducting voir dire, may “refuse inquiry into whether a potential juror would automatically impose the death penalty upon conviction,” 504 U.S. at 721; the Court held that it could not, see id. at 735. In Rouse‘s case, the attorneys, rather than the court, conducted voir dire, and nothing prevented them from undertaking such inquiries.
In McDonough, the Court “h[eld] that to obtain a new trial [in light of an honest though mistaken answer given by a juror during voir dire], a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” 464 U.S. at 556. As noted above, under the facts
Thus, I disagree with the majority‘s conclusion that a different equitable tolling analysis should apply to this case because it is a capital case. Moreover, even were I to consider all of the factors that the majority claims should affect the equitable tolling analysis in capital cases, I would still affirm the district court‘s decision that equitable tolling was inappropriate on the facts of this case.
III.
Because Rouse has failed to show any extraordinary circumstances external to his own conduct that would justify equitable tolling, I would affirm the district court.
The City of Houston, Texas, Defendant-Appellant-Cross-Appellee.
No. 01-20541
United States Court of Appeals, Fifth Circuit
Dec. 11, 2002.