Sandra M. Griffin v. Shirley Rogers, Warden

ed’s class action suit is argument superior

not the means resolve these claims is thus without merit.

FDCPA

III. CONCLUSION has

Because United raised question and the “superior

“mootness” issue,

methods” we have no need to ana-

lyze of the other traditional factors normally regard- be considered agree class certification. We with the disposition

district court’s of the two issues reason,

raised United. For this we judgment

AFFIRM the of the district grants

court that the Carrolls’ motion for

class certification and REMAND the case

for further consistent with

this opinion. GRIFFIN,

Sandra M. Petitioner-

Appellant,

Shirley ROGERS, Warden,

Respondent-Appellee.

No. 04-3302.

United States of Appeals,

Sixth Circuit.

Argued: Jan.

Decided and Filed: March

n Hardwick, Pub- P. Stephen ARGUED: Office, Public Defender Ohio lic Defender’s Ohio, Columbus, Appel- Commission, for Price, Office Thomas lant. Thelma Columbus, Ohio, General, Ap- for Attorney P. Hard- Stephen BRIEF: pellee. ON Office, Public Ohio wick, Defender’s Public Ohio, Columbus, Commission, Defender Price, Of- Thomas Thelma Appellant. General, Columbus, Attorney Griffin, tively petitioners fice of the like whose Ohio, Appellee. stayed. claims were dismissed rather than this case was When last before this MERRITT, MOORE, Before: and Court, it was unclear whether Griffin had GILMAN, Judges. Circuit complied 30-day with the window prescribes pursuing for state rem- OPINION after a edies federal dismissal. The record MERRITT, Judge. Circuit simply did not include that information. for petition Sandra Griffin filed habeas remand, On it was conceded that Griffin relief in of 1997. In proceed did not to state court for over six pe- the District Court dismissed her months, beyond 30-day well window tition without as she had not suggested by Palmer. The District Court exhausted her state remedies. When she refused equitably to toll the limitations returned to federal court October of period as Griffin had not filed within the petition her re-filed was dismissed as 30-day time frame. issue on untimely pursuant to one-year limita- appeal is whether the District Court was 2244(d)(1). § tions under 28 U.S.C. correct in rejecting request Griffin’s In this Court vacated the District equitable tolling. Court’s dismissal of Griffin’s and While Griffin is not to entitled the man- remanded for further in order datory equitable tolling prescribed in to determine whether the Palmer, the District Court was incorrect equitable tolling. entitled to Griffin to 30-day hard, treat window as a (2002).. Rogers, F.3d 647 In January precludes retroactive deadline that Court, adopting the District court’s consideration of her claims on the Report and Magis- Recommendation of the merits. Even if Griffin is not entitled to Judge, trate ruled that Griffin was not equitable automatic tolling under to entitled and dismissed Palmer, she is entitled to relief under this the case for failure to file within the limita- Court’s traditional tolling analy- period. timely appealed the sis. The dismissal of the District Court is District Court’s dismissal. therefore REVERSED and the Carlton, In Palmer v. REMANDED for consideration on the Cir.2002), this adopted stay and merits. abeyance procedure for petitions

that raise both exhausted and unexhausted I claims. portions The exhausted of these thoroughly This Court summarized the stayed peti- were to be while the factual procedural history essential to tioner returned to state court. These appeal current opinion: its 2002 stays were to be upon conditioned petitioner’s pursuing court remedies judge a trial in Ohio state interval, within a normally days, brief found Sandra Maxwell Griffin stay after the returning entered and guilty of complicity aggravated mur- federal court a similarly within brief inter- der specifications, complicity to un- val, normally after state court possession lawful of a dangerous ord- Also, Palmer, completed. nance, exhaustion is complicity theft, grand this Court determined that it would be complicity aggravated robbery with a n appropriate apply stays these retroac- specification. firearm Griffin then ob- her failure to unsuccessfully- the cause of counsel and new tained her in state court was arguments the Ohio case to her coun- appealed trial court Court, that the ineffective assistance. arguing sel’s Fifth, and Four- Eighth, violated that, ruled Judge although Holschuh follow- by not rights Amendment teenth appellate coun- ineffective assistance regarding certain state laws procedural can constitute cause sel by three-judge by jury or trial waiver of default, present the must of her length regarding panel , claim itself ineffective assistance. appeals, and lost her She sentence. it using to excuse the state courts before in 1992. became final conviction Griffin had not default. Because and Effective Antiterrorism The courts, the state brought that claim to (AEDPA) ef Penalty Act became Death it to yet present feder- she could 24, 1996, prisoners April on fective Judge in a. al court habeas already had be convictions state whose wishes, concluded, “If she at Holschuh file to required final were come an point, [ineffective to such some make corpus relief within for habeas assistance], here, petitioner argument n Isham v. that See year of daté. one her claim of ineffective must (6th Cir.2000), Randle, 691, 693 to the state assistance counsel 1201, denied, cert. U.S. (Dist. at 99 Ct. Order courts.” J.A. (2001). Repre 1211, 149 L.Ed.2d 9/30/98). 30, 1998, the September On . Defender’s Public by the Ohio sented petition her and dismissed court .denied corpus Office, filed for Griffin for her prejudice without fail- the case petition The April on 1997. relief procedur- for her ure “to establish cause Al Judge to Holschuh. assigned 101. al default.” J.A. at petition Griffin in her initial though After, her habeas 308 F.3d at 649-50. relief, namely just ground one raised dismissed, Ap- filed an Griffin petition was “manda to follow trial court’s failure court Reopen pursuant to state plication pro requirements of tory statutory 26(B) Procedure Appellate Rule of to Ohio process due in violation her ceeding” unexhausted, her inef- pursue in order 16, in at rights, J.A. equal protection fective assistance claim. of writ return to the warden’s reply her before this case was last When ar Griffin expanded her claims. she Court, indicate when record did not jury or trial her waiver of gued that Reopen. Application filed this Griffin un provided three-judge panel, as by a Griffin, that reflects current record law, knowing nor was neither der Ohio Public Defender’s by the Ohio represented- exceed that sentence intelligent and her -Reopen on Office, Application her filed law. The dis under permitted ed that 14, 1999, six one approximately April were that these determined trict court Court’s dis- after the District half months argument “clearly distinct from 1998. J.A. on missal courts,” noted to the presented she Appli- This Reopening). (Application have “appear to arguments the new by the untimely as cation was dismissed defaulted,” and of procedurally been May- on Appeals Court Ohio to demon opportunity Griffin fered (Ohio Judg- Appeals J.A. prejudice before cause and strate ment). dis- Supreme Court The Ohio proce claims as would dismiss the Sep- on (Dist. opinion appeal without missed at 66-68 durally defaulted. J.A. 22,1999. 3/16/98). tember argued Order Griffin Ct. Application the dismissal of her

After Griffin re-filed her petition second Monday, Reopen, attempted given to return to fed- October and it was new case assigned number and pursue petition: Judge eral court to her habeas briefing, Smith. After Judge Smith dis- Judge' Griffin then returned to Hol- missed the action for failure to file with- 15,1999, schuh, filing on October a habe- one-year in the limitation period for previous as under her case num- § 2254 actions. The district court noted re-filing, she ber. alerted the that when Griffin filed her first habeas fact that she was it court to the days two be- number,” original “under the be- one-year fore the deadline was to have merely previous it continued her cause run, of her statute of limita- that, attack. also noted because She lapsed. tions had That petition previous filing had been dismissed with- been dismissed on September exhaustion, permit out this Without knowing the actual date of her filing was not a subsequent “second or filing, state court the district court as- petition prohibited successive” under 28 sumed that Griffin immediately filed her 2244(b). § J.A. at U.S.C. 102-03. state court and that this fil- petition, Griffin also included notice running tolled the of her federal of the claims that she had brought statute of limitations. The district court However, Application Reopen. state to ruled that when the applica- state court Friday, Judge October Holschuh tion was resolved on September ordered the clerk to strike Griffin’s new 1999, Griffin had days two in which- to filing previous under case number return to federal court. She did not and directed the clerk to file it with a submit her petition second until October new case number and assign it to a 15, 1999, after the statute of limitations judge using “ordinary selection pro- Therefore, run. had the district court (Dist. cess.” J.A. at 118 Ct. Order dismissed petition. Griffin’s 10/22/99). Judge Holschuh noted that 308 F.3d at 650. Griffin timely then ap- previous because the case had closed pealed, and this Court vacated the dismiss- petitioner and the had offered no Griffin, al. 308 F.3d at 656. This Court grounds case, reopen previous to determined that the District Court had not petition be should filed under a different applied the correct regarding standard number, and the judge district to re-filing. When District which it would then assigned be should Court petition, dismissed her Griffin did independently consider whether to en- not days have two remaining under the reject tertain the petition or it as a statutory Instead, period. limitations n second or Judge successive statutory window of opportunity had al- Holschuh stated that assignment “[t]he ready expired. Walker, See Duncan v. non-assignment or of a new civil number 167, 181-82, U.S. obviously

to a case is. not conclusive (2001). But, L.Ed.2d 251 this Court found the issue of whether that the District Court should have deter- entitled to file a corpus second habeas mined whether or not Griffin was entitled petition,” and “[njothing in this order is equitable tolling to under Palmer v. Carl- intended to convey any opinion ton, (6th Cir.2002). as to 276 F.3d 777 We the new is or is not a found that Griffin’s period limitation successive or has otherwise should be tolled during pendency properly been filed.” J.A. at original action, 117-18. her 308 F.3d at Carlton, stay-and- adopted this Court between 651-52, and for effects a man abeyance which procedure, court dismissal 1999 state equitable tolling datory form of in October federal court her return in which a mixed of cases group of narrow But, we were unaware at 655. id. expi or after the is dismissed near Application petition actually filed her when Griffin ‘ period. AEDPA limitations Concluding ration courts. in the Ohio Reopen n Our Court that if such has determined certainly entitled be that Griffin claims in unexhausted files could show tolling if she Palmer, days of dismissal court within we vacated accordance further, court within 30 Id. in federal consideration. re-files remanded for exhaustion, petition will the re-filed auto that she remand, conceded On timely. If this matically be considered bring her six months taken over ap not equitable tolling does mandatory and the District Reopen, Application toll may equitably still Court ply, this not entitled she was determined on the traditional period based under Palmer. equitable tolling by this court factors as outlined Court, the recommenda- adopting District Orr, 851 F.2d 146 Cir. in Andrews v. that Palmer found magistrate, tion of 1998). for habeas deadline a retroactive created and Recom- (Report J.A. 284 petitioners. A. mendation) (“Petitioner clearly has by Palmer. time limits established themet and Effective Antiterrorism In the case and of that application of Strict (AEDPA), Congress Penalty Act Death mili- in this case mandate Sixth Circuit’s for of habeas statute limitations added a tolling”). equitable against tate part: in relevant providing corpus petitions (d)(1) limitation shall 1-year period of A II. a for writ of application to an apply one-year custody by AEDPA’s a corpus person “Because habeas a of a State jurisdictional, the judgment limitations is not pursuant statute may period shall run the deadline limitation who misses court. The action if of- habeas the latest maintain viable still from ap equitable decides (A) judgment date on which Yukins, 396, 366 F.3d Allen v. propriate.” of di- final conclusion became (6th Cir.2004) Dunlap v. United (citing 401 of the expiration or*the review rect (6th Cir.2001), States, 1001, 1007 250 F.3d seeking review such time 649, 1057, denied, 122 S.Ct. 534 U.S. cert. * * * * * * (2001)); Young v. see also L.Ed.2d 566 151 (2) properly during time which 43, 49, States, 122 S.Ct. 535 U.S. United post-conviction for State filed (“It (2002) horn- 1036, 79 152 L.Ed.2d respect collateral review or other ‘cus periods are that limitations book law pend- or claim is judgment pertinent ”) tolling.’ subject “equitable tomarily to” toward not be counted ing shall 49-50, (citations omitted); at 122 S.Ct. id. this subsec- limitation under presumed be (“Congress must 1036 tion. light this periods limitations draft 2244(d). no provided § 28 U.S.C. In the present background principle.”). .AEDPA claims corpus aris- grace period habeas case, ways there are two as Griffin’s that such convictions First, v. from apply. could 632 2244(d)(1). final prior id.; §

became the statute’s enact 186, See see also id. at ment. As the to provide failure such a J., 121 (Breyer, S.Ct. 2120 dissenting) grace period would have rendered AEDPA (pointing out that district courts take on unconstitutional, provided this Circuit average 268 petitions to dismiss one-yeár grace period for convictions that procedural grounds). In cases like Grif- 24, 1996, prior April became final to’ fin’s, where the initial petition is filed at effective date of AEDPA. Isham See v . (or end) the end near the of the limitations Randle, 691, Cir.2000), 693 period, a Rose dismissal will effectively denied, 1201, 1211, cert. U.S. S.Ct. preclude the 'possibility of a re-filing con- (2001) Texaco, 149 L.Ed.2d 124 (citing Inc. sistent with the AEDPA peri- Short, 454 U.S. 527 n. 102 S.Ct. od.1 (1982)). 70 L.Ed.2d In the pres Duncan, Justice Stevens wrote case, ent filed her habeas concurring opinion joined by Justice Sout- 22, 1997, just days shy two er to complications address the arising grace period’s expiration. from Rose and the new AEDPA limita- Since passage, AEDPA’s courts have period. at U.S. 121 S.Ct. struggled to also determine how to ad- (Stevens, J., concurring). Justice questions dress the limitations timely- Stevens, recognizing possibility filed petitions raising unexhausted Congress had “overlooked” potential pre-AEDPA decision, claims. In a Rose v. problem, urged the circuit courts to con- Lundy, sider two uses of the powers of (1982), 71 L.Ed.2d the federal courts to ensure that petition- had directed federal courts that it was ers who invoke jurisdiction the court’s proper to dismiss that contained 1-year within the prescribed interval both exhausted and' unexhausted claims (“mixed AEDPA are not barred from having their petitions”). AEDPA, Before such 182-84, claims heard. Id. permitted plaintiffs dismissal to exhaust First, S.Ct. 2120. Justice sug- their Stevens remaining state claims and return to gested that courts federal court confronted with a without a time limitation. Walker, petition mixed stay Duncan v. could the 167, 181-82, rather than 121 dismiss (2001), completely. S.Ct. 150 them L.Ed.2d 251 Id. however, 182-83, at 121 the S.Ct. 2120. Under this determined stay that abeyance procedure, the AEDPA and period limitations does courts re- jurisdiction during not toll tain pendency claims, the over the of the exhausted habeas petition court, claims, itself. While in dismiss the federal unexhausted stay toll- and ing is allowed the during habeas proceedings pending the time the the com- petition is pending Thus, plete state in court. exhaustion of state remedies. Sec- when a Rose, ond, case is pursuant dismissed Justice urged Stevens the federal the period limitations generally will equitably have courts to toll the pe- limitations expired, foreclosing the possibility of a riod for petitioners initially who invoked timely re-filing in accordance jurisdiction with the court’s during the statuto- 1. The fact that Griffin did not file her habeas occur until seventeen months after her initial petition days until two expiration before the filing. period As the limitations would not grace period essentially irrelevant. during have tolled pendency the of her . initial Even if Griffin had filed on the effective date petition, federal subsequent re-filing of AEDPA year with a remaining full in the would still be barred. period, limitations the Rose dismissal did not

633 returning and stay after is entered the at S.Ct. Id. one-year period. ry similarly brief .inter- curt within a (“[NJeither hold- narrow Court’s val, days state court normally 30 after legislative or in the text anything ing, nor using completed.” Without exhaustion AEDPA, a federal precludes history of tolling,2 the cir- language limitations deeming the from court petitioner cuit found as matter petition for such tolled if it petition have his treated as “entitled to equity”). entry his to the stayed, provided had been thereafter, Circuit the Second Shortly occurred and his return courts Ste by raised Justice the issue addressed Finding, petitioner promptly.”. . (2d Artuz, F.3d 374 Zarvela v. vens. complied with timeliness have Cir.2001). filed in Zarvela The have stay should conditions of days only two petition habeas his court reversed granted, appellate been Id. at period. in the remaining proceedings. for further remanded permission sought he Subsequently, Carlton, v. In Palmer without petition to withdraw (6th Cir.2002), endorsed the this Court in the a new claim he could exhaust so that adopted by stay abeyance procedure grant The District Court Id. state courts. Zarvela, in The court Circuit Second later, he Id. Nine his motion. ed wrote: court; fourteen in state his new claim filed abeyance] [stay and decision was The appellate , Second

days after the state Circuit eminently reasonable. approach is habeas rendered, re-filed his federal It he raised concerns addresses The District Court dismissed Id. Duncan, preserves in by Stevens Justice untimely. Id. The Second as petition his comity embraced the interests con District Court that the Circuit held i potential abuse Lundy, prevents mixed Zarvela’s fronted with petition some perpetrated of the writ than stay rather have issued should ers. to withdraw. motion petitioner’s grant stay “will be (noting that procedure’s

Id. They Id. also embraced like course cases only appropriate that had application to retroactive outright dismissal stayed.. where an Id. Zarvela’s. rather been dismissed .than collat the timeliness jeopardize had filed his ‘could ”) Page, (citing day Freeman the last eral attack.’ original Cir.2000)) (emphasis at 779. His Id. period. the limitations ruled, added). stay, the court without voluntary Such a motion for dismissal pe upon the the District granted conditioned prejudice been was should have previously- .court Id. A of state 1999. “prompt Court March titioner’s on initiation dismissed on proceeding return to feder prompt and his filed was exhaustion exhaustion,” re-filed 22,1999. petitioner Id. The March completion after al court 24, 1999, and the Thus, May the his action appellate habeas 254 F.3d at 376-77. that this determined prospectively courts District court directed district this Court untimely. appeal, Id. On stay the the condition was “explicitly be should determined dismissal court pursuing state remedies prisoner’s affirmed: interval, normally days, a brief within pro- timely stay-and-abéyance fact, under the eq- to be court indicated In the Zarvela analysis might been nec- at 383 n. tolling have & uitable cedure. petitioner’s case not been held essary Nevertheless, adoption of Correction, the Second see Dep’t 1998 WL 870534 approach in this (Mar. Circuit’s case would not (Tenn.Ct.App.1998), appeal denied 1999) afford Palmer the relief he seeks. Al- (raising statutory Tennessee though his state-court remedies were ex- Tennessee constitutional claims but no fed- 22, 1999, claims). hausted on March he waited eral constitutional Palmer was a May until before he poor returned equitable candidate for tolling not court and to federal filed a second simply habe- sixty days because he waited after as This wait amounted to more his state completely were con- 30-day period than the “normal” sug- action, cluded to re-file his federal habeas gested by the Second Circuit as a rea- but because bring any he did not period petitioner sonable for a to return challenges during whatsoever this pe- time jurisdiction, to federal and the record riod. offers no reason for the two-month de- Hargrove v. Brigano, 300 F.3d 717 lay. (6th Cir.2002), this fully Court more en- petitioner

Id. at 781-82. As the waited dorsed the stay-and-abeyance procedure in sixty days after his state court dismissal to the context of AEDPA statute of limita- petition, re-file his habeas he would not tions. In Hargrove, the petitioner sought complied have with the stay retroactive grounds relief on the of constitu- contemplated by the Zarvela court. tionally insufficient evidence. Id. at 718. court, pro Like the Zarvela Since the petitioner se had never filed an appeal, did not conduct a traditional equita- District Court dismissed the tolling analysis.. Instead, ble it without simply de- in order for the petitioner termined that had the petitioner’s exhaust his state remedies. Yet, stayed been conditionally upon Id. rather than staying the two petition, 30- windows, day' filing Court, District acting prospectively, complied. not have F.3d at ordered the 781-82. the AEDPA limita- Notably, period the court did not indicate that petitioner’s conditioned on the comply pursuing failure to with this “normal” his state days time remedies within 30 dispositive. Indeed, of the the court dismissal and returning to federal suggested adequate that an court within explanation after exhaustion. Id. might (“[T]he delay. have excused the challenged Id. warden prospective record no equitable offers reason for order of tolling, the two-month arguing that the delay.”). issue was not jurisdiction within the dismissing Instead, court. Id. at 719.

But, Palmer offered no reason for his warden argued that delay that would permitted have the court should be decided the court receiving to consider tolling was subsequent, untimely petition after ex- appropriate. Nor could he have. Be- haustion. Id. This Court found that tween the March 2 habeas dismissal and District prospective Court’s equitable toll- May 24 habeas re-filing, (“Al- was reasonable. Id. at appear does not to have filed any addition- though the district court did not issue a al proceedings in Instead, the state court. stay case, in it achieved the same the was relying on a previously- result reached in Zarvela and approved in filed state action sought that declaratory Palmer.”). purely relief on grounds. state Id. at 780 (“[TJhis pleading present did not a Again, federal in Hargrove, our court did not review.”); question for Palmer v. actually Tennes- “equitable conduct an tolling”

635 30-day comply with the As she did not that under merely recognized It analysis.3 mandatory of is not entitled guideline, rule she stay-and-abeyance the retroactive proper tolling. as tolling equitable was equitable Palmer whose petitioners for those of law matter prejudice without dismissed are

petitions B. exhausting state claims. purpose of for the toll equitable the mandatory As “Palmer previously, held this Court As applicable not the ing rule of Palmer is mandatory eq period introduces new case, turn to the traditional we present filed who tolling petitioners uitable for re tolling analysis. This Court equitable within the federal habeas their the District Court’s decision views de novo were forced but of limitations statute v. equitable tolling. King apply not to certain court to exhaust to state return (6th Cir.2004). 550, Bell, F.3d 553 378 (empha F.3d at 654 Griffin, 308 claims.” typically courts have extended “Federal added). Zarvela-Palmer-Har sis v. only sparingly.” Irwin relief equitable that regardless dictates line of cases grove 96, 89, 498 U.S. Dep’t Affairs, Veterans situation, courts equities of of the (1990). 453, 111 112 L.Ed.2d 435 S.Ct. re-filing that mechanically permit will tolling should equitable deciding case had the available would have been in this Circuit consider apply, courts stayed rather than dis conditionally been factors: following missed. (1) lack of notice of petitioner’s case, is not Griffin In the (2) petitioner’s filing requirement; tolling equitable entitled to automatic of the knowledge constructive lack of Palmer. As mandated (3) pur- diligence filing requirement; without dismissed (4) preju- suing rights; one’s absence Palm Duncan and prior 1998 to both (5) pe- and respondent; dice to the stay- er, did not use the District Court remaining reasonableness titioner’s Thus, when the and-abeyance- procedure. requirement ignorant legal, dismissed, limita AEDPA case was filing his claim. Had a already expired. States, dismissal, Dunlap v. United rather than a stay been issued Orr, Cir.2001) (6th v. (citing Andrews 1008 normally be conditioned stay would Cir.1988)). (6th These 146, 151 in 851 F.2d of unexhausted claims upon nor is comprehensive, “are not five factors returning court within in all relevant the five factors each of days of exhaustion. federal court within 517, 521 Stegall, Cook v. cases.” file her But did not Cir.2002). (6th Instead, must con- courts until the Ohio courts delayed appeal with “case-by-case tolling on a equitable half sider and one nearly six Id.; at 553. King, 378 F.3d basis.” dismissal. District Court months after her Indeed, abeyance. given the suggest equita Hargrove did 3. The Court advisory opinions, issuing consid be based on a aversion cases should courts' ble U.S., put the Court in & forth n. Corp. eration of the factors Keene see 1988). Orr, (1993), Cir. 851 F.2d 146 Andrews v. L.Ed.2d 118 S.Ct. But, & 4. Hargrove, F.3d at 719-20 n. See embarked Hargrove could have case, the Court did not in its resolution recog- analysis. Hargrove upon an Rather, applied analyze it these factors. operate 30-day as windows nizes prospec to determine Zarvela this Circuit. matter of law in stay operate as tive applying Andrews factors to before the time frame adopted was this case, only filing Moreover, at issue is circuit. nothing in the District application reopen to her direct Court’s dismissal indicated that Griffin appeal in the Ohio courts.4 When her bring need proceeding by her state a cer- 30, petition September was dismissed on tain deadline or within a certain time 1998, statutory her un- frame. The order of dismissal without already AEDPA expired. der had See entirely silent as to how Duncan, 181-82, proceed Griffin should bring order to But, Palmer, operation 2120. under the of timely See J.A. 100 if Griffin had returned state court with- Order, 30, 1998); (Opinion Sept. see days, in 30 proceed her Bouchard, also Geeter v. F.Supp.2d Thus, (E.D.Mich.2003) the merits. in applying the five- 773 (dismissing peti- test, factor this Court must consider tion explicit instructions to file state application Griffin’s failure to file her for proceedings days within 30 and return to delayed 30, appeal by October exhaustion). 1998 and federal court days within 30 of untimely 14, contrary, To the in the dismissal without 1999, neglect part evidences such on the of prejudice, Judge Holschuh indicated that preclude equitable as to toll- Griffin could proceed to exhaust her state ing. claims and return to federal court: Petitioner a remedy has in state court if 1. Lack Actual or Constructive re-open she can appeal her direct Knowledge Filing Requirement and assert these claims. She has not filed Ignorance. Reasonable Supreme an reopen appeal un- Court acknowledged has 26(B), der R.App. Rule Ohio InP. State appropriate is sometimes when a Mumahan, Supreme the Ohio Court litigant has inadequate received notice. person held that a bring must a claim of County Baldwin Welcome Center v. ineffective assistance appellate coun- Brown, 147, 151, 1723, U.S. S.Ct. sel through an application delayed (1984). Indeed, 80 L.Ed.2d 196 “[equita reconsideration in the where the ble primarily focuses on the plain alleged place. took error In order to ignorance excusable of the limitations tiffs fully remedies, exhaust delayed if period.” States, Lehman v. United denied, person reconsideration is (9th Cir.1998) (emphasis in appeal must that denial to the Ohio Su- original). lines,' Along these Griffin con Mumahan, preme Court. 63 Ohio St.3d tends that she no reason to know that 60, 66, (1992); also, 584 N.E.2d 1204 see required she was file within 30 Zent, Rust v. 17 F.3d at 159-60. Since her dismissal from federal court. This yet has not filed an applica- contention is difficult to rebut. This 30- tion reopen appeal with the state day adopted by window was the Palmer court of appeals remedy is still in January drawing on the her, available to and she has ex- Second Circuit’s 2001 opinion Zarvela. hausted her state remedies. Yet Griffin failed to within 30-day file window in years October over three previously, As this Court has found reopen tion to May was dismissed on returned to the timely federal courts in a 1999. The ap- Court dismissed her exhausting manner after peal her claims in state and Griffin re- Griffin, court. applica- F.3d at 655. Her filed her habeas on October

637 ignorance of her of the to make and point, reasonableness at some If she wishes delay. King, See here, the effect of her must argument an such claim After her habeas was F.3d at 553. assis- of ineffective her claim 30, 1998, Griffin, September on dismissed courts. to the state of counsel tance attorney not file in by her did represented did 103-04, dismissal the 105. While JA and half months federal court until six one that she believing into mislead Griffin not delay 1999. This cer- later on stated any or other months have six would “extraordinarily an tainly not indicate does state court trip for the of time amount idleness,” Cook, long period unexplained of how explain does back, dismissal the and simply at Griffin had not 295 F.3d 522. her claims exhaust procedurally could she Instead, she was relief. stopped pursuing argu- an “to make such returning before counsel, acting who represented was court. in federal ment here” circumstances, And, under her behalf. did not statute itself AEDPA reasonably responding active in was she should how as to Griffin provide notice the dismissal. Pursuant to the proceed. certain, of principles To be Duncan, limita in Griffin’s opinion Court “garden tolling do not extend when her already expired period had neglect of excusable variety” claims in was dismissed Irwin, attorney. litigant’s of a part ap her filed Mumahan Even had Griffin Equitable toll at S.Ct. U.S. instantaneously, would she plication might appropriate not be Griffin’s advantage of to take have been able aware of a and attorney been deadline at the But statutory tolling provisions. or if to file on time Grif negligently failed attorney dismissal, and her of time negligent in not ascer attorney fin’s was just as expiration of this ignorant were But, filing deadline. where taining the Court the District dismissed unclear, should constitutional review law is was in the get-go, she From petition. has been unless there not be forfeited rules. process of a undefined middle part on the of diligence good lack of faith dismissal, the Court’s the District Neither Here counsel had herself. any her statute, gave law nor complex record prepare and file be ob of deadlines should notice what law before complex questions of research timeliness preserve served order In the in state court. filing certain, be To of deadline, known months six of absence alone is not sufficient of law “ignorance by busy public preparation Rose v. equitable tolling.” to warrant is not unreasonable. defender’s office Cir.1991). Dole, 945 F.2d the state not know that Counsel could filing dead But, ignorance Griffin’s require “equity” would argue that na and unsettled the unstable given line deadlines of retroactive time AEDPA at the crucial ture of or three two decided created cases supports her mistake was reasonable years later. tolling. argument “Ab Prejudice. S. Absence Rights. Her Diligence Pursuing A factor to be consid is a sence of claim considering petitioner’s After justify might factor that ered after turns the reason- ignorance, this Brigano, tolling is identified.’’ Vroman in seek- petitioner’s actions ableness (6th Cir.2003); Dunlap, 598, 605 are proper ing relief. The considerations may only be (“Prejudice pursuing rights diligence if other factors of the test are strictly considered Griffin’s failure to adhere to the only weigh 30-day met and therefore can in the window of Palmer. None of this favor.”). precedents government’s As Griffin has Court’s indicate that Palmer established a plausible equitable tolling equitable tolling made a case for retroactive factors, petitioners deadline for in appro- based on the first four it is Griffin’s situa- . starting tion.5 The priate equitably point to consider whether toll- of these cases is the fact that already the deadline ing prejudice the statute of limitations will has passed. question There is no that respondent. In Griffin’s Dunlap, this Court 2244(d)(1). § by was time-barred rejected government the notion'that “the grounds Dismissal on the of such untimeli- always prejudiced is when there a collat- is ness certainly power is within the Dunlap, eral attack.” 250 F.3d at 1009. however, injustice, courts. To avoid we It is to claim that forcing difficult adopted stay-and-abeyance have proce- argument an warden to make on the mer- dure conditional 30-day on the time limits prejudicial its Griffin’s will be for cases fact, might where dismissal preclude In state’s cause. the warden timely petition. Applied re-filed retroac- underly- addresses the merits tively cases, to dismissed stay-and- claim in this Appellee’s its brief. Br. at 28- abeyance procedure mandatory eq- effects penalty case, 29. As this is not a death uitable petitioners when support argument there is no for the would have that complied with stay’s simply trying Griffin is conditions. This drag out the case, procedure in outlined Palmer and proceedings. In this it not Har- ap- does grove uniformly. Beyond is followed pear equitably tolling this one-year stay-and-abeyance procedure and statute of limitations would its retro- Palmer, active prescribed in any way. our cases neither require nor prohibit n (cid:127) III. court from determining whether the limi- Equitable tolling under the Andrews tations equitably should be tolled case, factors is appropriate despite under Andrews. Russell, decisions, Appx. In Godbolt v. 82 Fed. Since those Court has Cir.2003) (per 2003 WL 22734743 cu impliedly held that district courts indeed have riam) (unpublished), petitioner was dis power petitions to dismiss mixed even if for failure to missed exhaust state remedies. endangers petitioner’s ability dismissal petitioner attempted When the to return to re-file a habeas within the statuto court, his action was dismissed as Ford, ry period. Pliler v. untimely. Id. at appeal, peti 448-49. On 225, - - -, 2441, 2446-47, argued tioner that the District Court should 338(2004). But, L.Ed.2d while these cases stayed original have rather than dismissed the indicate that dismissal for mixed re petition. Id. at 449. This Court affirmed the appropriate mains under the AEDPA limita dismissal, finding District Court’s that no er period, they way in no block a court Id.; ror had been committed. see also Bar considering from equitable tolling Conley, Appx. nard v. 36 Fed fact, Pliler, appropriate. the court indi (6th Cir.2002) (af WL (unpublished) cated that on remand the court could conduct firming District Court's dismissal of ah un equitable tolling an analysis. Id. at 2447 timely petition). The Godbolt Court (“We remand the case for further resulting further found that error from given Appeals’ the Court of concern that re dismissal was harmless as the spondent affirmatively had been misled comply 30-day did with the time windows ...."); (O'Connor, J., id. at concurring) accompanied that would have stay. such a ("Nevertheless, Appx. Importantly, 82 Fed. at 452. if the is affirmative non-man misled, issue, datory equitáble tolling State, ly was not at either the court or as such was neither considered nor tolling might decided. appropriate.”). well be to a equitable tolling denied in Palmer operation

The notion approximately had waited upon a liti defendant who dependent after unknown, to refile in federal court two months retro with an compliance gant’s remedies: exhausting his state-court is inimical to active, 30-day deadline hard tolling is a “dis ap- the Circuit’s Equitable [A]doption of Second equity itself. not lend 30-day har- cretionary allowing doctrine” “does safe proach [of v. rules.” Harris Palm- line in case would not afford bright to this bor] itself (4th 325, Hutchinson, Cir. his Although 209 F.3d 328 he seeks. er the relief 2000). adopt the strict Thus, refuse to were exhausted we state-court remedies 24, District upon by May the waited until 30-day rule relied he March in reject litigants 1999, all court that would he returned before equities This regardless position and filed second Griffin’s noted that we “nor- It should also be to more than wait amounted the involved. equitable toll suggested by rule of general 30-day period no mal” announce similarly-situated period in all sweep that will as reasonable Second Circuit case-by-case ju- deter to federal It remains for a to return litigants. equi relying risdiction, rea- “The virtue and the record offers no mination. such very delay. nature of tolling lies in the table son for the two-month not the rule.” Ro exception, tolling as the in the Similarly, the record Id. at 781-82. 561, Wood, tella v. offers no reason for present case (2000). 1075, 145L.Ed.2d 1047 here six delay at issue delay, and the three times as a half months —over above, is For reasons stated the one in Palmer. long as tolling of the mandatory entitled to the not that Palmer was by majority’s point prescribed limitations one-year equitable tolling be- But, with a comply poor her failure to candidate Palmer. raised no federal constitutional support not cause he time window does retroactive to be claims, appears un- to me Op. is equitable the conclusion key equita- Diligence is the were irrelevant. and her counsel available. Griffin the defen- the nature of tolling, not ignorant of relevant ble reasonably claims, Grif- then- and neither nor consequences of dant’s and the time lines remedies Thus, diligent pursuing in the dismissal fin were delay. we REVERSE Court, toll the to them. equitably available the District REMAND this period, and Furthermore, majori that the I believe District for further equi “mandatory ty’s distinction between Court. “traditional tolling” and table an artificial one Op. at tolling,” GILMAN, LEE Circuit RONALD The 30- caselaw. justified any prior dissenting. Judge, a safe viewed as rule is better day Palmer brief, limit reasonable time haven—“a problem I have no Although present claims upon I majority, laid out legal principles court to federal and return state courts prin- of those its disagree with ” Palmer, Under F.3d at 781. .... I Specifically, case. ciples An out in factors set analysis, the con- majority’s that the decision believe Orr, Cir. Carlton, drews in Palmer v. trary holding Dunlap v. United 1988), (6th Cir.2002), and reaffirmed very case 276 F.3d (6th Cir.2001), States, majority relies. This upon which all I are the same for therefore believe that Palmer is control- claims; any delay beyond ling, but judg- and thus would AFFIRM the places the on the defendant burden ment of the district court. diligence.

show reasonable acknowledge majority’s point

I

Griffin had no set deadline to return to court, but she had to have been one-year that AEDPA’s limit

aware time already expired. So she knew or

should have known time was of the in going essence to and from state court. America, UNITED STATES of Waiting go six and a half months to Plaintiff-Appellee, no explana- state court—with reasonable me a complete tion—indicates to lack of

diligence. JONES, Jr., Climmie Defendant-

The majority’s delay statement that the Appellant. “certainly does not indicate ‘an extraordi- No. 03-6016. narily long period unexplained idle- ” ness,’ Op. at quoting Stegall, Cook v. United of Appeals, States Court Cir.2002), confounds Sixth Circuit. certainly me. It does! point Argued: Nov. court in being made Cook was that “nearly years” twelve was “an extraordi- Decided and Filed: March narily long period of unexplained idleness” expiration applicable after the stat-

ute of limitations. Id. Cook pro- therefore support majority’s

vides no for the state-

ment.

Furthermore, I find no basis to conclude reasonably Griffin “was active re- dismissal,”

sponding to the Op. at

I unpersuaded by am majority’s decla-

ration that “six months for preparation filing by busy public of- defender’s

fice is not unreasonable.” Id. Counsel’s moreover,

lack of diligence, basis Andrews,

for equitable tolling. See (listing

F.2d at 151 five factors to take into

account in determining justified, including litigant’s

own diligence, but not including counsel’s

lack diligence). sum, justification I find even less delay six-and-a-half-month in this case

than for delay the two-month that was

found to unacceptably long be in Palmer.

Case Details

Case Name: Sandra M. Griffin v. Shirley Rogers, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 3, 2005

Citation: 399 F.3d 626

Docket Number: 04-3302

Court Abbreviation: 6th Cir.