Granger v. Hurt

84 F. App'x 500
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 3, 2003
DocketNo. 02-3088
StatusPublished
Cited by1 cases

This text of 84 F. App'x 500 (Granger v. Hurt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Granger v. Hurt, 84 F. App'x 500 (6th Cir. 2003).

Opinion

[501]*501OPINION

GILMAN, Circuit Judge.

This appeal concerns the appropriate application of the one-year statute of limitations governing federal habeas corpus relief sought pursuant to 28 U.S.C. § 2254. The district court’s Certifícate of Appealability (COA) states the question as “whether the running of the statute of limitations period was tolled during the two-month period between the entry of judgment of conviction and petitioner’s learning that his trial attorney had not filed a notice of appeal.” A negative answer was rendered by the district court. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND for consideration of Granger’s habeas petition on the merits.

I. BACKGROUND

On April 18, 1999, Jeffrey Granger was convicted in the Court of Common Pleas for Pickaway County, Ohio on separate counts of robbery, theft, and abduction. He was sentenced to a term of seven years’ imprisonment to be followed by five years of supervised release. Granger’s conviction was not appealed within the time allowed by Ohio law. According to Granger, he was under the impression that his trial counsel was appealing his conviction, and he did not discover otherwise until he called to check on the status of his appeal two months past the filing deadline.

Upon learning that his conviction had not been appealed, Granger filed a motion for a delayed direct appeal pursuant to Ohio Appellate Rule 26(B) on September 14, 1999. That motion was denied by the Ohio Court of Appeals on January 7, 2000. Granger then filed a motion for leave to appeal to the Supreme Court of Ohio, which was denied on May 17, 2000. Nearly one year later, on May 8, 2001, Granger filed a petition for a writ of habeas corpus, claiming that he had been denied both his right to appeal and to the effective assistance of counsel because of his attorney’s failure to file an appeal. The district court dismissed Granger’s habeas petition on the ground that he had failed to file the petition within the one-year statute of limitations.

II. ANALYSIS

A. Standard of review

A district court’s denial of a writ of habeas corpus is reviewed de novo. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.1996). To the extent that the district court made factual findings without conducting an evidentiary hearing, those findings are also reviewed de novo. Northrop v. Trippett, 265 F.3d 372, 377 (6th Cir.2001).

Because Granger’s habeas petition was filed after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), the provisions of that act apply. Ford v. Curtis, 277 F.3d 806, 808 (6th Cir.2002). AEDPA establishes a one-year statute of limitations for habeas petitions, providing in pertinent part as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant [502]*502was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244.

B. Scope of the COA

The state contends that several of Granger’s arguments on appeal fall outside the scope of the COA. According to the state, the district court’s language framing the issue certified on appeal makes clear that the only issue before us is whether to apply equitable tolling under § 2244(d)(1)(A). Granger counters, however, that the district court’s statement of the issue allows us to consider his arguments raised under § 2244(d)(1)(B) and (D) as well. We agree with the state that the plain language of the statute indicates that both § 2244(d)(1)(B) and (D) involve the commencement of the limitations period rather than the tolling of a period already begun. Some courts, however, have referred to these sections as providing mechanisms for “tolling.” See, e.g., Wims v. United States, 225 F.3d 186, 189-90 (2d Cir.2000) (“[T]he district court interpreted the section as if it provided a ground for tolling of the limitations period, rather than as defining the time when the limitations period began.”) In fact, in an unpublished decision, this court repeatedly referred to a habeas petitioner’s § 2244(d)(1)(B) argument as one involving “equitable tolling.” Dolphin v. Garraghty, 2001 WL 1450699, 27 Fed.Appx. 496 (6th Cir. Nov. 8, 2001). We are reluctant, in light of this confusion, to assume that the district court’s use of the word “tolling” in the question certified in this case precludes us from considering Granger’s § 2244(d)(1)(B) and (D) arguments.

In addition, even if the district court did intend to deny a COA as to Granger’s § 2244(d)(1)(B) and (D) claims, this court would construe the filing of the notice of appeal as a request for a COA as to those issues raised below but not certified. Kincade v. Sparkman, 117 F.3d 949, 953 (6th Cir.1997). We will therefore consider Granger’s § 2244(d)(1)(B) and (D) arguments on the merits.

C. Granger’s habeas petition was timely under § 2244(d)(1)(A)

In White v. Schotten, 201 F.3d 743, 752-53 (6th Cir.2000), this court held that applications to reopen or file delayed appeals under Ohio Appellate Rule 26(B) are part of direct — not collateral — review. Granger filed his Rule 26(B) motion on September 14, 1999 with the Ohio Court of Appeals, which subsequently rejected it. He then appealed to the Ohio Supreme Court. When the Ohio Supreme Court denied his motion on May 17, 2000, that decision concluded the direct review of Granger’s case. White, 201 F.3d at 752-53.

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Bluebook (online)
84 F. App'x 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granger-v-hurt-ca6-2003.