RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 King v. Bell No. 02-5602 ELECTRONIC CITATION: 2004 FED App. 0257P (6th Cir.) File Name: 04a0257p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT BOGGS, Chief Judge. This case already has a three-year _________________ history, although the would-be petitioner, Tommy King, has yet successfully to file his petition for habeas relief. Upon TOMMY KING, X examination, this panel unanimously agrees that oral Petitioner-Appellant, - argument is not needed. Fed. R. App. P. 34(a). Because our - decision in Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir. - No. 02-5602 2003) (en banc), cert. denied sub nom. Caruso v. Abela, 124 v. - S. Ct. 2388 (2004), and the doctrine of equitable tolling > preclude the government from asserting a valid statute of , limitations defense in this case, we reverse the grant of RICKY BELL, Warden, - Respondent-Appellee. - summary judgment against King and remand for consideration of the merits of his petition. N Appeal from the United States District Court I for the Middle District of Tennessee at Columbia. No. 00-00017—Robert L. Echols, Chief District Judge. Tommy King was convicted of murder and sentenced to death. The Tennessee Supreme Court denied him relief both Submitted: June 11, 2004 on direct appeal, State v. King, 694 S.W.2d 941 (Tenn. 1985), and after post-conviction proceedings. King v. State, 992 Decided and Filed: August 3, 2004 S.W.2d 946 (Tenn. 1999). King then petitioned the Supreme Court for certiorari, which was denied on November 15, Before: BOGGS, Chief Judge; and MERRITT and SILER, 1999. King v. Tennessee, 528 U.S. 1007 (1999). Circuit Judges. In February 2000, King filed a notification of intent to file _________________ a habeas petition in the Middle District of Tennessee and requested appointed counsel, which was provided. On March COUNSEL 30, 2000, the parties agreed at a status conference that King’s attorneys would have six months to prepare their petition but ON BRIEF: Kelley J. Henry, Paul R. Bottei, FEDERAL that no amendments to the petition would be permitted. PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Senior Judge Higgins issued an order to that effect, setting a Appellant. Alice B. Lustre, Michael E. Moore, OFFICE OF deadline of September 29, 2000 for the petition to be filed. THE ATTORNEY GENERAL, Nashville, Tennessee, for On August 23, 2000, King’s attorneys filed a motion to have Appellee. the voir dire from King’s trial transcribed, which the court granted. When the transcription was delayed, the State agreed
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on September 28, 2000 (within the original six-month time- should be sufficient). We do not need to resolve this question frame) that King would have 15 days after receiving the now. transcripts to file his habeas petition. In January 2001, Judge Higgins transferred the case to Judge Echols. It is debatable whether the government waived its statute of limitations defense when it agreed to the filing schedule, The transcripts were finally ready in June 2001, and King established in March 2000, that provided for the petition to be filed his petition within the allotted 15 days. The government filed in September 2000, more than a year after the final state responded with a motion to dismiss, citing 28 U.S.C. action. However, our holding in Abela places the original § 2244(d)(1), which states that a petitioner must file for filing period well within the limitations period. The issue of habeas relief within one year of a final state judgment. The whether agreement to a particular briefing schedule Tennessee Supreme Court had denied King post-conviction constitutes an implicit waiver of a statute of limitations relief on June 7, 1999, and thus the State argued that King had defense is therefore moot, and we express no opinion on the missed his filing deadline by over a year. The district court subject. See Benes v. United States, 276 F.2d 99, 109 (6th sua sponte changed the motion to dismiss to a motion for Cir. 1960). summary judgment and granted it on the statute of limitations grounds, following the calculation rules in effect at the time. After the Tennessee Supreme Court denied him post- King appealed to this court and we ordered briefing on the conviction relief, King petitioned for certiorari to the United statute of limitations issue only. States Supreme Court. When the district court considered the timeliness of King’s petition, the limitations period was not II tolled during the 90-day period that a defendant could petition for certiorari to the Supreme Court. Isham v. Randle, 226 King’s one-year window to file a habeas petition opened F.3d 691, 695 (6th Cir. 2000). However, Abela overruled when the Tennessee Supreme Court denied him Isham, and under our subsequent holding, King’s limitations post-conviction relief on June 7, 1999. 28 U.S.C. period was tolled from June 7 to November 15, 1999, when § 2244(d)(1). The statute provides that “[t]he time during the Court denied certiorari. Abela, 348 F.3d at 172-73. King which a properly filed application for State post-conviction or was required to file his habeas petition by November 15, other collateral review with respect to the pertinent judgment 2000, a year after the United States Supreme Court action. or claim is pending shall not be counted toward any period of Appellee Br. at 17 (stating correctly that “[u]nder Abela, the limitation under this subsection.” 28 U.S.C. § 2244(d)(2). time period . . . expired on November 15, 2000). The We have not decided whether a notice of intent to file a government accurately states that even using the November petition for habeas relief, which King did eight months after 15, 2000 date, King missed the deadline. Ibid. However, we the Tennessee decision, is sufficient to satisfy statute of decline to hold him responsible for a delay caused by the limitations requirements. See Williams v. Coyle, 167 F.3d government and acknowledged by the court when it issued a 1036, 1040 n.4 (6th Cir. 1999) (expressing no opinion on modified filing schedule with the consent of the parties. whether filing of an intent to petition for habeas relief and a motion for the appointment of counsel can satisfy the III timeliness requirements under AEDPA); but see id. at 1041 (Kennedy, J. dissenting) (arguing that such notification If King had filed his petition in September 2000, as originally agreed, it would have been timely. Only the No. 02-5602 King v. Bell 5 6 King v. Bell No. 02-5602
government’s failure to produce the voir dire transcripts inquiry.” Griffin v. Rogers, 308 F.3d 647, 654 -55 (6th Cir. prevented him from complying with the court’s original 2002). scheduling order. When the delay began to affect King’s ability to comply with the September 29, 2000 deadline, the In this case, King was diligent about pursuing his rights: court ordered, with the government’s concurrence, that King’s within nine months of denial of post-conviction relief, he had petition be due 15 days after the transcripts were provided. filed a petition for certiorari, an intent to file a habeas petition, King complied with that order.
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 King v. Bell No. 02-5602 ELECTRONIC CITATION: 2004 FED App. 0257P (6th Cir.) File Name: 04a0257p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT BOGGS, Chief Judge. This case already has a three-year _________________ history, although the would-be petitioner, Tommy King, has yet successfully to file his petition for habeas relief. Upon TOMMY KING, X examination, this panel unanimously agrees that oral Petitioner-Appellant, - argument is not needed. Fed. R. App. P. 34(a). Because our - decision in Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir. - No. 02-5602 2003) (en banc), cert. denied sub nom. Caruso v. Abela, 124 v. - S. Ct. 2388 (2004), and the doctrine of equitable tolling > preclude the government from asserting a valid statute of , limitations defense in this case, we reverse the grant of RICKY BELL, Warden, - Respondent-Appellee. - summary judgment against King and remand for consideration of the merits of his petition. N Appeal from the United States District Court I for the Middle District of Tennessee at Columbia. No. 00-00017—Robert L. Echols, Chief District Judge. Tommy King was convicted of murder and sentenced to death. The Tennessee Supreme Court denied him relief both Submitted: June 11, 2004 on direct appeal, State v. King, 694 S.W.2d 941 (Tenn. 1985), and after post-conviction proceedings. King v. State, 992 Decided and Filed: August 3, 2004 S.W.2d 946 (Tenn. 1999). King then petitioned the Supreme Court for certiorari, which was denied on November 15, Before: BOGGS, Chief Judge; and MERRITT and SILER, 1999. King v. Tennessee, 528 U.S. 1007 (1999). Circuit Judges. In February 2000, King filed a notification of intent to file _________________ a habeas petition in the Middle District of Tennessee and requested appointed counsel, which was provided. On March COUNSEL 30, 2000, the parties agreed at a status conference that King’s attorneys would have six months to prepare their petition but ON BRIEF: Kelley J. Henry, Paul R. Bottei, FEDERAL that no amendments to the petition would be permitted. PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Senior Judge Higgins issued an order to that effect, setting a Appellant. Alice B. Lustre, Michael E. Moore, OFFICE OF deadline of September 29, 2000 for the petition to be filed. THE ATTORNEY GENERAL, Nashville, Tennessee, for On August 23, 2000, King’s attorneys filed a motion to have Appellee. the voir dire from King’s trial transcribed, which the court granted. When the transcription was delayed, the State agreed
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on September 28, 2000 (within the original six-month time- should be sufficient). We do not need to resolve this question frame) that King would have 15 days after receiving the now. transcripts to file his habeas petition. In January 2001, Judge Higgins transferred the case to Judge Echols. It is debatable whether the government waived its statute of limitations defense when it agreed to the filing schedule, The transcripts were finally ready in June 2001, and King established in March 2000, that provided for the petition to be filed his petition within the allotted 15 days. The government filed in September 2000, more than a year after the final state responded with a motion to dismiss, citing 28 U.S.C. action. However, our holding in Abela places the original § 2244(d)(1), which states that a petitioner must file for filing period well within the limitations period. The issue of habeas relief within one year of a final state judgment. The whether agreement to a particular briefing schedule Tennessee Supreme Court had denied King post-conviction constitutes an implicit waiver of a statute of limitations relief on June 7, 1999, and thus the State argued that King had defense is therefore moot, and we express no opinion on the missed his filing deadline by over a year. The district court subject. See Benes v. United States, 276 F.2d 99, 109 (6th sua sponte changed the motion to dismiss to a motion for Cir. 1960). summary judgment and granted it on the statute of limitations grounds, following the calculation rules in effect at the time. After the Tennessee Supreme Court denied him post- King appealed to this court and we ordered briefing on the conviction relief, King petitioned for certiorari to the United statute of limitations issue only. States Supreme Court. When the district court considered the timeliness of King’s petition, the limitations period was not II tolled during the 90-day period that a defendant could petition for certiorari to the Supreme Court. Isham v. Randle, 226 King’s one-year window to file a habeas petition opened F.3d 691, 695 (6th Cir. 2000). However, Abela overruled when the Tennessee Supreme Court denied him Isham, and under our subsequent holding, King’s limitations post-conviction relief on June 7, 1999. 28 U.S.C. period was tolled from June 7 to November 15, 1999, when § 2244(d)(1). The statute provides that “[t]he time during the Court denied certiorari. Abela, 348 F.3d at 172-73. King which a properly filed application for State post-conviction or was required to file his habeas petition by November 15, other collateral review with respect to the pertinent judgment 2000, a year after the United States Supreme Court action. or claim is pending shall not be counted toward any period of Appellee Br. at 17 (stating correctly that “[u]nder Abela, the limitation under this subsection.” 28 U.S.C. § 2244(d)(2). time period . . . expired on November 15, 2000). The We have not decided whether a notice of intent to file a government accurately states that even using the November petition for habeas relief, which King did eight months after 15, 2000 date, King missed the deadline. Ibid. However, we the Tennessee decision, is sufficient to satisfy statute of decline to hold him responsible for a delay caused by the limitations requirements. See Williams v. Coyle, 167 F.3d government and acknowledged by the court when it issued a 1036, 1040 n.4 (6th Cir. 1999) (expressing no opinion on modified filing schedule with the consent of the parties. whether filing of an intent to petition for habeas relief and a motion for the appointment of counsel can satisfy the III timeliness requirements under AEDPA); but see id. at 1041 (Kennedy, J. dissenting) (arguing that such notification If King had filed his petition in September 2000, as originally agreed, it would have been timely. Only the No. 02-5602 King v. Bell 5 6 King v. Bell No. 02-5602
government’s failure to produce the voir dire transcripts inquiry.” Griffin v. Rogers, 308 F.3d 647, 654 -55 (6th Cir. prevented him from complying with the court’s original 2002). scheduling order. When the delay began to affect King’s ability to comply with the September 29, 2000 deadline, the In this case, King was diligent about pursuing his rights: court ordered, with the government’s concurrence, that King’s within nine months of denial of post-conviction relief, he had petition be due 15 days after the transcripts were provided. filed a petition for certiorari, an intent to file a habeas petition, King complied with that order. Therefore, we apply the received counsel, and had established a filing schedule. doctrine of equitable tolling to hold that King’s petition was Furthermore, he did not file according to the original schedule timely filed. only because the government did not comply timely with a court order to produce voir dire transcripts. When King filed Equitable tolling is permissible under the Anti-Terrorism within the court-allotted 15 days after receiving the and Effective Death Penalty Act (AEDPA), although rare. transcripts, he had no reason to anticipate any procedural Dunlap v. United States, 250 F.3d 1001, 1009 (6th Cir. 2001) difficulties: he had complied with the court-approved (“the circumstances under which this Court has found schedule, as modified in September 2000, and with the equitable tolling appropriate are in fact few in number”). We court’s original order to include all his arguments in one review de novo a district court’s decision not to apply petition. Therefore, we cannot expect that he would have equitable tolling, Id. at 1007, and generally consider the known that the effect of the delay, over which he had no following factors: “(1) lack of actual notice of filing control, would be the loss of his ability to file a petition at all. requirement; (2) lack of constructive knowledge of filing The facts of this case constitute one of the rare occasions in requirement; (3) diligence in pursuing one's rights; which equitable tolling under AEDPA is appropriate. (4) absence of prejudice to the defendant; and (5) a plaintiff's reasonableness in remaining ignorant of the notice The court chose to accommodate the government’s delay in requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. providing King with the voir dire transcripts by issuing a 1988). The Andrews factors are not necessarily modified scheduling order and in doing so equitably tolled the comprehensive or always relevant; ultimately every court statute of limitations, given the circumstances of this case. must consider an equitable tolling claim on a case-by-case See In re Maughan, 340 F.3d 337, 344 (6th Cir. 2003) basis. Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002). (ordering time to file extended until the adverse party produced missing documents); Glarner v. United States Dep’t When the petitioner does not claim ignorance of the filing of Veterans Admin., 30 F.3d 697, 701 (6th Cir. 1994) (holding requirement, this court's inquiry is focused on examining his that because “the VA failed in a legal duty to Glarner,” by not diligence in pursuing his rights and the reasonableness of his providing him with the proper form, his claim under the ignorance of the effect of his delay. Vroman v. Brigano, 346 Federal Torts Claim Act was equitably tolled). Otherwise, the F.3d 598, 605 (6th Cir. 2003). Although the petitioner government could prevent any defendant from filing a timely generally bears the burden to provide all the evidence to show claim simply by failing to produce relevant evidence in a that equitable tolling is warranted, that rule does not apply in reasonable period, agreeing to a court-approved extended the habeas context, which is “governed by rules that filing schedule, and then sandbagging him with a statute of explicitly recognize the State’s superior access to the record limitations defense. and explicitly require that the State provide certain elements of the evidence that are relevant to an equitable tolling No. 02-5602 King v. Bell 7
IV We REVERSE the grant of summary judgment to the government and REMAND for consideration of King’s petition on the merits.