Sunday, July 17, 2011

E.D. Va. exposes uncertainty in statute of limitations analysis

Bolding v. Dep't of Corr., No. 3:10cv660, 2011 WL 2471557 (E.D. Va. June 21, 2011).

In Virginia, a state prisoner may file a state habeas petition in either the state circuit (trial-level) court or in the Supreme Court of Virginia.

A question arises regarding the statute of limitations when an inmate petitions for habeas relief in the circuit court and then appeals the denial of the petition to the Supreme Court of Virginia.  It is settled law that the statute of limitation tolls while the petition is pending with the circuit court.  What happens, however, when the Supreme Court of Virginia dismisses the subsequent appeal because it was not timely filed?  The Eastern District of Virginia recently uncovered that question, and decided not to rule on it.

In Allen v. Mitchell, 276 F.3d 183, 185 (4th Cir. 2001), the Fourth Circuit, adjudicating a North Carolina case, subscribed to the position that "the statute of limitations is not tolled between the expiration of a state appeal deadline and the subsequent filing of an untimely appellate petition."  The Allen Court broke the relevant time periods down:
When a prisoner files an untimely appellate petition during state collateral review proceedings, three periods are relevant to the availability of tolling for the time span between the denial of relief by the lower court and the conclusion of appellate proceedings:  the interval between the lower court decision and the deadline for seeking review (“Appeal Period”); the interval between this deadline and the filing of an appellate petition (“Post Deadline Period”); and the interval during which the appellate petition is under review by the state court (“Review Period”).
The Review Period clearly tolls the statute of limitations if a state appellate petition is properly filed.  The Allen Court decided the issue of whether the Post Deadline Period tolled the statute of limitations.  (It doesn't.)  The question is regarding the Appeal Period.  In Allen, the Fourth Circuit throws it away by saying, "We have already held that the statute of limitations is tolled pursuant to § 2244(d)(2) during the [interval between the lower court habeas decision and the deadline for seeking review of that decision.]"  This suggests that a petitioner's limitations period is tolled for thirty days after the circuit court's judgment, even if the petition for appeal is not filed within that thirty-day period.  This conclusion is supported by the Allen Court's language at the end of its opinion:  "[If] Allen's certiorari petition was [not] timely . . . then the district court must determine when the Appeal Period ended and how much time subsequently accrued against the statute of limitations."  This is the holding of at least three other circuits, and also the practice of the Western District of Virginia at least once.  See Breeden v. Commonwealth, No. 7:05CV00413, 2005 WL 2777281, at *1 (W.D. Va. Oct. 24, 2005) ("Although the Circuit Court dismissed Breeden's state petition on December 18, 2004, the one-year period remained tolled until January 18, 2005, the date on which the time to appeal the dismissal of the petition expired.").

This, however, is not the rule that the Eastern District of Virginia normally follows.  See, e.g., Hines v. Johnson, No. 2:08cv102, 2009 WL 210716, at *2 (E.D. Va. Jan. 28, 2009) (precluding tolling the time between the state's denial of a habeas petition and the ultimately untimely petition for appeal of that decision); Christian v. Baskerville, 232 F. Supp. 2d 605, 607 (E.D. Va. 2001) (same).  The Eastern District of Virginia declined further analysis because an additional thirty days would not be beneficial to the petitioner.

[1/20/2012 Update:  For another North Carolina case addressing Allen, see Arrington v. Stancil, No. 5:11–HC–2018–BO, 2012 WL 125755, at *2 (E.D.N.C. Jan. 17 2012).]

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