Thоmas M. KEENAN, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
No. 03-3834.
United States Court of Appeals, Sixth Circuit.
Decided and Filed: March 10, 2005.
400 F.3d 417
Argued: Sept. 23, 2004.
IV.
Accordingly, we VACATE the judgment of the district court and REMAND this matter with instructions that it be dismissed.
ARGUED: Jeffrey M. Gamso, Jeffrey J. Helmick, Gamso, Helmick & Hoоlahan, Toledo, Ohio, for Appellant. Henry G. Appel, Attorney General‘s Office of Ohio, Columbus, Ohio, for Appellee. ON BRIEF: Jeffrey M. Gamso, Gamso, Helmick & Hoolahan, Toledo, Ohio, for Appellant.
Before: MERRITT, SILER, and GILMAN, Circuit Judges.
GILMAN, J., delivered the opinion of the court. MERRITT, J. (pp. 422-26), delivered a separate opinion concurring in part and dissenting in part. SILER, J. (pp. 426-28), delivered a separate dissenting opinion.
OPINION
GILMAN, Circuit Judge.
Thomas M. Keenan appeals the district court‘s judgment that dismissed as untimely his petition for a writ of habeas corpus filed pursuant to
I. BACKGROUND
Keenan is an Ohio prisoner who has been sentenced to death for the murder of Anthony Klann. The factual background surrounding the crime is extensively detailed in State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929, 935-36 (1998), but is not directly relevant to the issue before us.
Procedurally, Keenan was indicted for aggravated burglary along with the kidnaping and aggravated murder of Klann on October 6, 1988. In 1989, Keenan was convicted by a jury and sentenced to death by the trial court. The Ohio Court of Appeals affirmed Keenan‘s conviction and death sentence in 1990. This conviction was reversed, however, and the case remanded for a new trial by the Ohio Supreme Court on the basis of prosecutorial
The second trial took place in 1993-94. Keenan was again convicted by the jury and sentenced to death, and the final judgment of the trial court was again affirmed by the Ohio Court of Appeals. On November 6, 1996, Keenan submitted the transcript from this second trial to the Ohio Supreme Court, thus initiating his appeal to that court. This date is key to the issue before us, because it marks the point at which his 180-day statute of limitations for state postconviction relief began to run under
Keenan‘s second conviction was affirmed on February 25, 1998 by the Ohio Supreme Court. State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998). Thе United States Supreme Court denied certiorari on October 5, 1998, another key date in this case. Keenan v. Ohio, 525 U.S. 860, 119 S.Ct. 146, 142 L.Ed.2d 119 (1998). This denial initiated the one-year statute of limitations for petitioning for federal habeas relief under
The controversy in the present case was precipitated by a so-called Glenn order issued by the Ohio Supreme Court on November 30, 1998. That order provided as follows:
IT IS FURTHER ORDERED by the court that, pursuant to State v. Glenn (1987), 33 Ohio St.3d 601, 514 N.E.2d 869, a stay is granted for a period of six months, beginning October 23, 1998 and ending April 23, 1999, to allow appellant an opportunity to file a petition for post-conviction relief.
State v. Keenan, 84 Ohio St.3d 1425, 702 N.E.2d 901 (Ohio 1998) (unpublished). Significantly, Keenan‘s 180-day statute of limitations granted by
Keenan filed a petition for state postconviction reliеf in the Cuyahoga County Court of Common Pleas on March 26, 1999. This petition was well within the six-month time frame set out by the Ohio Supreme Court in the Glenn order. All of the parties agree, however, that this petition was filed almost two years after the expiration (on May 5, 1997) of the 180-day statute of limitations specified in
The Ohio trial court denied the petition on its merits in 1999. On appeal, the Ohio Court of Appeals affirmed the trial court‘s denial, but based its decision on the ground that Keenan‘s petition was untimely under
On September 7, 2001, almost two years after the one-year statute of limitations under
The district court agreed with the Warden‘s position and dismissed Keenan‘s petition as time-barred. It also found that Keenan had not demonstrated a basis for equitable tolling, nor had he demonstrated that he could avail himself of any actual-innocence exception to the limitations period. The court, however, granted a certificate of appealability on the timeliness issue. Keenan also filed a motion to alter or amend the record, arguing that the district court should have certified three questions relating to the timеliness of his petition to the Ohio Supreme Court. The district court denied the motion, but granted a certificate of appealability as to the issues raised within the motion. Keenan‘s appeal under these certifications is now before us.
II. ANALYSIS
The district court‘s decision to deny a writ of habeas corpus is reviewed de novo. Allen v. Yukins, 366 F.3d 396, 399 (6th Cir.2004). “[W]here the facts are undisputed and the district court decides as a matter of law that equitable tolling does not apply, this court reviews the district court‘s decision de novo.” Id. at 401. However, “[t]he petitioner bears the burden of demonstrating that he is entitled to equitable tolling.” Id. (quoting McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir.2003)).
Keenan argues at length that his petition for state postconviction relief was indeеd timely filed. For the purposes of Keenan‘s petition for federal habeas relief, this is the central issue before us. There is a one-year limitations period during which a state prisoner may file for a writ of habeas corpus in federal court.
Nonetheless, “[t]he time during which a properly filed application for State pоst-conviction or other collateral review ... is pending shall not be counted” toward the limitations period.
We are unable, however, to reach a conclusion on the timeliness issue at this timе. Even if Keenan‘s petition for state postconviction relief was improperly filed, he may be able to proceed on the basis of his equitable-tolling argument. “Equitable tolling is permissible under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) [
In essence, the doctrine of equitable tolling allows federal courts to toll a statute of limitations when “a litigant‘s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant‘s control.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir.2000). This circuit has adopted a straightforward test for analyzing equitable-tolling claims. The factors to be considered are “(1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one‘s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff‘s reasonableness in remaining ignorant of the notice requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988). Furthermore, thesе factors “are not necessarily comprehensive or always relevant; ultimately every court must consider an equitable tolling claim on a case-by-case basis.” King, 378 F.3d at 553.
In the present case, the Ohio Supreme Court issued its Glenn order on November 30, 1998, a year and a half after Keenan‘s time for filing for state postconviction relief had expired under
The key question for the purposes of equitable tolling, therefore, is why Keenan filed for state postconviction relief, as opposed to federal habeas relief, on March 26, 1999. If Keenan indeed relied on the literal language of the Ohio Supreme Court‘s Glenn order in structuring his legal strategy, then his argument for equitable tolling might be very strong. For example, the petitioner in King v. Bell, 378 F.3d 550 (6th Cir.2004), was prevented from filing a timely federal habeas petition because of governmental delay in providing him with the trial transcript. In all other respects, however, the petitioner had completely complied with the court-approved timetable. This court applied the doctrine of equitable tolling and concluded that the petitioner “had no reason to anticipate any procedural difficulties: he had complied with the court-approved schedule ... and with the court‘s original order to include all his arguments in one petition.” Id. at 553.
Indeed, based on the evidence before us, Keenan might have reasonably viewed the Ohio Supreme Court‘s order as granting him extra time to properly file a petition for state postconviction relief. He might have assumed that any time spent pursuing this avenue would toll his federal statute of limitations. Thus, given the Glenn order, he might have believed that filing for state postconviction relief would not prevent him from later filing for federal habeas relief. The record before us, however, contains no mention of Keenan‘s motivation in filing for state postconviction relief instead of federal habeas relief. We cannot determine with any certainty whether he relied on the Glenn order when deciding to file for state postconvic-
Whether this case presents one of those rare occasions in which equitable tolling under AEDPA is proper is an issue apprоpriately handled by the district court in the course of an evidentiary hearing. In so remanding, we note that the district court must consider the “(1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one‘s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff‘s reasonableness in remaining ignorant of the notice requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988). Keenan might claim that he did indeed rely on the Glenn order in postponing his claim for federal habeas relief, but the district court must then decide whether such a reliance, in light of all the Andrews factors, was reasonable. The answer to this question, we believe, will determine whether there is merit to Keenan‘s argument that equitable tolling should be applied to the case before us.
III. CONCLUSION
For all of the reasons set forth above, we VACATE the judgment of the district court and REMAND the case to the district court for an evidentiary hearing in accordance with this opinion.
MERRITT, Circuit Judge, concurring in the remand but dissenting from the failure to allow the case to go forward on the merits of the constitutional claims.
Thomas Keenan, a petitioner condemned to death in Ohio, brings his first habeas case in federal court. He presents a number of plausible claims, including an actual innocence claim. By stretching and stitching together procedural default and statutory limitations arguments, the State seeks to forfeit all of Keenan‘s constitutional claims so that he will now be executed without federal review of any kind.
The State treats as a state procedural default the condemned prisoner‘s state habeas petition filed on March 26, 1999. As a result, counsel for the State asks the court to refuse to toll the running of the one-year, federal limitation period under
First, immediately after the U.S. Supreme Court denied certiorari, the state Supreme Court in its October 1998 order expressly “grantеd a period of six months beginning October 23, 1998, and ending April 23, 1999, to allow appellant an opportunity to file a petition for post-conviction relief.” The petition was then filed five months later, a month before the time was up. It is difficult to understand how the Ohio Supreme Court could have been any plainer in setting out the time “to allow” a condemned prisoner to file “for post-conviction relief” after the U.S. Supreme Court denied certiorari. “You have six months to file.” That is what the Ohio Supreme Court said. The reasonable expectation of a lawyer reading the order would be that it allows six month‘s time for filing. The State refuses to apply this plain language and would refuse to allow the federal tolling statute to operate because it says that the time allowed for filing the state petition ran out long before the U.S. Supreme Court denied certiorari and long before the state Supreme Court entered its order “to allow” the filing of the state petition. So the two years the petitioner waited in the Ohio courts for his petition to be decided cannot be used or counted to toll under the federal statute.
Upon remand, by this Court‘s opinion, one essential question for the District Court is whether Keenan was relying on the Supreme Court‘s order when he opted to file his state post-conviction petition prior to his federal habeas petition. I find it apparent that the Ohio Supreme Court order plainly implied that Keenan had six months to pursue state post-conviction relief rather than six months tо pursue federal habeas relief. First, the court‘s order used the term “petition for post-conviction relief,” which is the very title of the state collateral attack as put forth in
Second, despite the plain English of the Ohio Supreme Court‘s order, the State would procedurally default the tolling claim, and hence all other federal claims, by saying simply that the Ohio Court of Appeals opinion dismissing the state petition on “jurisdiction” grounds controls our decision on tolling even though that court did not mention or purport to interpret the federal tolling statute or even know that its action would deny federal review. The State reads the Ohio court‘s refusal to hear the state post-сonviction petition as forfeiting all federal claims because it used the “jurisdiction” talisman rather than dismissing on other grounds. The Ohio Court of Appeals ruled sua sponte, without argument or briefing, that Keenan‘s state claims were late after two years of litigation in state court. That ruling should not control our tolling decision. Broad delegation to state courts of the authority to control access to federal habeas review in this way effectively suspends the writ of habeas corpus and prevents our review of the constitutionality of state death sentences. Moreover, we should permit equitable tolling now because had the Ohio court advised Keenan of its “jurisdictional” dismissal within six months, he could have filed his petition within the one year period, and tolling would not have been an issue at all. In addition to
Third, the Ohio legislature passed the new Ohio collateral review statute on capital punishment—the one construed by the Ohio Court of Appеals—in order to require the death penalty prisoner to file his petition within six months of the date of filing of the trial record in the Ohio Supreme Court. (See the Appendix to this opinion for a time line under this statute.) Under this statutory scheme, the statute of limitations on collateral review will almost always run before the prisoner‘s direct appeal is concluded. In the present case, the collateral review statute ran 16 months before the death sentence in this case became final when the U.S. Supreme Court denied certiorari. This system requires post-conviction counsel to file claims of ineffective assistance of trial and appellatе counsel, prosecutorial suppression of exculpatory evidence, newly discovered evidence and similar claims even before Ohio‘s Supreme Court considers the case on appeal and before trial and appellate counsel are replaced by post-conviction counsel.1 If not so filed, the claims are defaulted and tolling defeated, according to the state.
The result of this state statutory scheme, as it interlocks with the various federal forfeiture rules, is that one or more of the federal forfeiture rules can always be stretched to bar consideration on the merits of some or all of the рrisoner‘s federal claims. For example, in the present case, assuming Keenan filed his state petition within the 180 day period and it was dismissed, Keenan would have been required to file his federal petition on his collateral claims denied in state court before his claims on direct review were final. These direct review claims when filed would then have to be treated as second or successive claims forbidden by AEDPA.2 On the other hand, if in some cases the Ohio state collateral review process should end after the death sentence becomes final on direct review, the federal issues presented for collateral review would come later. They would become a second petition. This Ohio inversion, together with AEDPA‘s one-year statute of limitations, the State‘s strict construction of tolling, and the successive petition rule, further complicates an already-complicated process. The whole system becomes a trap for the unwary, a maze designed to dispatch the capital defendant to the executioner‘s block without federal review.
Fourth, either no lawyer should be faulted for not being able to work through this maze, in which case surely equitable tolling should apply, or the ignorance of counsеl is the reason. After procedurally defaulting the federal tolling period because counsel for Keenan did not file the state post-conviction petition 16 months before the death verdict was finally final, the State Attorney General‘s office then argues against the application of equitable tolling because attorney error is said not to be a legitimate basis for equitable tolling. This argument is wrong. See Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir.2003), and Nara v. Frank, 264 F.3d 310, 320 (3d Cir.2001), rev‘d on other grounds, Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), both of which agree that the actions of counsel can supply a basis for equitable tolling. Equitable tolling should save the petition either because the Ohio statutory maze created a situation that no sane lawyer could figure out or because an effective lawyer would have found some solution that escapes me—one or the other.
In Lambert v. Warden, 81 Fed.Appx. 1, a comprehensive opinion at 81 Fed.Appx. 1, Judge Boggs set out his understanding of the sequence of review of criminal judgments in Ohio:
Direct review immediately follows trial, generally is constrained by tight, non-waivable time limits and concludes with finality of judgment. Collateral review focuses on the adequacy of the trial and direct review, rather than the underlying merits of the original action. As such, it necessarily follows direct review .... The structure of the AEDPA statute of limitations meshes with this understanding of the distinction between direct and collateral review .... Of course, allowing the statute of limitations to run out while the prisoner is still pursuing state post-conviction remedies combined with AEDPA‘s exhaustion requirement would be manifestly unjust. Therefore, AEDPA tolls the statute of limitations during state post-conviction proceedings.
28 U.S.C. § 2244(d)(2) . Again, the language of the provision agrees with the properties of collateral attacks. As collateral attacks follow direct review, and therefore the start of the limitations period, it makes sense to speak of tolling the period.
(Emphasis added.)
The opinion discusses the normal way the legal profession thinks about the sequencing of review in criminal cases. A lawyer should not be expected to anticipate that he will be thrown out of court on statute of limitations grounds when he has what would appear to be a reasonable state post-conviction proceeding pending. If Judge Boggs and the two other members of the panel in the Lambert case think that this is the way the Ohio system works (and Lambert is an Ohio case), then it is hard to expect a lawyer to foresee the consequences that the State Attorney General would apply in this case. Those statements in Judge Boggs’ opinion are part of a comprehensive treatment of Ohio post-conviction law. And even after a diligent study of Ohio post-conviction law, Judge Boggs and the panel did not foresee that the sequencing of Ohio‘s review process would require the рost-conviction process to occur before the direct appeal is completed.
Conclusion
In light of (1) the plain language of the Ohio Supreme Court in Keenan‘s case allowing the filing of the state habeas petition, (2) the action of the Ohio Court of Appeals requiring the filing to occur 16 months before the capital judgment became final, (3) the forfeiture puzzle created
APPENDIX
The relevant dates for this matter are as follows:
| Event | Date | Location in the Record |
|---|---|---|
| Trial Court Journalized Keenan‘s Sentence (triggers 120 day deadline for requesting new trial) | 5/16/94 | Doc. R. 41, Apx. at Vol. 1, p. 379; 6th Cir. Apx. at 100. |
| Ohio Supreme Court received the record on direct appeal (triggers 180 day deadline for state post-conviction action) | 11/6/96 | Doc. R. 43, Apx. at Vol. III, pp. 1, 51; 6th Cir. Apx. at 105, 106. See also Doc. R. 20, Exhibit B; 6th Cir. Apx. at 97. |
| Ohio Supreme Court‘s Decision | 2/25/98 | See State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998). |
| United States Supreme Court denies certiorari on direct appeal (triggers 365 day deadline for filing federal habeas corpus petition) | 10/5/98 | Doc. R. 43, Apx. at Vol. III, p. 362; 6th Cir. Apx. at 107. See also Keenan v. Ohio, 525 U.S. 860, 119 S.Ct. 146, 142 L.Ed.2d 119 (1998). |
| Post-Conviction Petition/Motion for New Trial filed in Ohio trial court | 3/26/99 | Doc. R. 44, Apx. at Vol. IV, p. 1; 6th Cir. Apx. at 111. |
| Eighth District Court of Appeals holds that Keenan‘s Post-Conviction Action is Untimely | 2/1/01 | Doc. R. 44, Apx. at Vol. IV, p. 322; 6th Cir. Apx. at 118. See also State v. Keenan, 2001 WL 91129 (8th Dis. Ohio 2001), 2001 Ohio App. LEXIS 356. |
| Ohio Suprеme Court denies jurisdiction on motion for new trial | 6/27/01 | Doc. R. 44, Apx. at Vol. IV, p. 393; 6th Cir. Apx. at 127. See also State v. Keenan, 92 Ohio St.3d 1429, 749 N.E.2d 756 (2001). |
| Keenan files his habeas corpus petition | 11/21/01 | Doc. R. 11; 6th Cir. Apx. at 14. |
SILER, Circuit Judge, dissenting.
I do not favor dissenting from my colleagues, but the three of us have differing views on the resolution of this case. I would affirm the decision of the district court in dismissing the petition for a writ of habeas corpus under
No facts are in dispute in this case. As Judge Gilman‘s opinion relates, when the United States Supreme Court denied certiorari on October 5, 1998, it initiated the one-year statute of limitations for petitioning for federal habeas corpus relief under
The majority opinion correctly quotes from King v. Bell, 378 F.3d 550, 553 (6th Cir.2004), that equitable tolling under AEDPA is permissible, although rare. In that case, two of the judges who were on this panel conсurred that equitable tolling was correct because the State had agreed to allow the petitioner to file his petition within fifteen days after certain transcripts were made available. After the petitioner filed within the fifteen days, the State then asserted that the statute of limitations had run. The significant difference between the King case and the case at bar is that in King, the equitable tolling was determined by the federal court to allow the late filing in federal court. In the case at bar, we are asked to toll the statute of limitations under Ohio law, after the Ohio Court of
I would decline Keenan‘s implied invitation to second guess the Ohio court‘s interpretation of Ohio law. I suspect that the Glenn order was entered by the Ohio Supreme Court in order to effect the stay of the execution order which had just been entered. It allowed Keenan to file a petition for PCR within the six months without having to apply for a second stay of his execution. In an analogous case with regard to Ohio‘s timeliness requirements, we statеd that
[p]rinciples of comity require federal courts to defer to a state‘s judgment on issues of state law and, more particularly, on issues of state procedural law. Because state courts are the final authority on state law, federal courts must accept a state court‘s interpretation of its statutes and its rules of practice.
Israfil v. Russell, 276 F.3d 768, 771 (6th Cir.2001) (citations omitted); see also Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir.2003).
Moreover, Keenan failed to raise the equitable tolling issue before the district court until he filed a surresponse memorandum. It should therefore be deemed waived. See Scott v. Collins, 286 F.3d 923, 927 (6th Cir.2002). However, even if not waived, Keenan has failed to show what circumstances were beyond his control that resulted in missing the deadline, exсept for blaming his counsel. Attorney error is generally not a legitimate basis for equitable tolling. See Jurado v. Burt, 337 F.3d 638, 644-45 (6th Cir.2003). While the concurring opinion from Judge Merritt observes that this tenet conflicts with decisions from other circuits, any persuasive cites are irrelevant due to our decision in Jurado. There are no circumstances surrounding this case which would take it out of this general rule. See Rouse v. Lee, 339 F.3d 238, 254 (4th Cir.2003) (en banc) (after extensive review and inquiry, court found that differing standards should not apply to capital cases in enforcing the statute of limitations for collateral review). The concurring opinion criticizes the “maze” of Ohio procedural rules and suggests this is grounds for equitable tolling. However, it is up to the Ohio lеgislature to amend or revise the “maze,” if it thinks there is confusion. Lawyers wade through confusing statutes and rules on a daily basis. Just ask a tax lawyer who deals with the Internal Revenue Code. In our federal system, each state sets up its own procedure for such post-conviction review, and the members of the bar and petitioners are expected to keep up with it.
The concurring opinion quotes some language from the decision in Lambert v. Warden, 81 Fed.Appx. 1 (6th Cir.2003). However, “[i]t is well-established law in this circuit that unpublished cases are not binding precedent.” Bell v. Johnson, 308 F.3d 594, 611 (6th Cir.2002). Moreover, in Lambert, the court was dealing with the operation of Ohio App. R. 26(B), which is not in issue here.
Therefore, I find no error by the district court in this case. I would affirm.