Lambert v. Warden

81 F. App'x 1
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 2, 2003
DocketNo. 01-3422
StatusPublished
Cited by15 cases

This text of 81 F. App'x 1 (Lambert v. Warden) 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
Lambert v. Warden, 81 F. App'x 1 (6th Cir. 2003).

Opinions

BOGGS, Circuit Judge.

Petitioner Grant W. Lambert appeals the district court’s dismissal of his petition for a writ of habeas corpus as untimely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d). Lambert was convicted in an Ohio state trial court, appealed to the Ohio intermediate courts, allowed the time for an appeal to the Ohio Supreme Court to lapse, and filed his federal petition for a writ of habeas corpus more than eighteen months later. The district court considering that petition concluded that the Ohio App. R. 26(B) Application to Reopen that Lambert filed in the interim did not delay the start of the statute of limitation under § 2244(d)(1)(A), but merely tolled its run[2]*2ning under § 2244(d)(2), and that the ninety days allowed to petition for United States Supreme Court review of the denial of the 26(B) application were not part of the tolling period under § 2244(d)(2). The allowed tolling period being insufficient to reduce the total time lapsed to one year or less, the district court dismissed the petition. Precedent compels us to reverse and remand.

I

On April 1, 1997, Lambert was indicted by a grand jury on one count of retaliation, in violation of Ohio R.C. 2921.05(B). He was sentenced to a term of four years of incarceration and the Ohio intermediate appellate courts denied Lambert’s timely appeal. On July 21, 1998, forty-five days after the intermediate appellate judgment, Lambert’s time for an appeal to the Ohio Supreme Court ended. On September 17, Lambert filed pro se an Application to Reopen under Ohio App. R. 26(B) with the Ohio appellate courts on the basis that his original appellate counsel was ineffective. Lambert’s 26(B) application was filed 104 days after the appellate judgment. On November 16, the Ohio appellate courts denied the 26(B) application both on procedural and on substantive grounds, but without commenting on the delay. On December 28, Lambert filed pro se an appeal of the denial of his 26(B) application to the Ohio Supreme Court. On February 17, 1999 the Ohio Supreme Court chose not to exercise jurisdiction, rejecting the appeal. Lambert did not seek a writ of certiorari to challenge this rejection in the United States Supreme Court.

On January 25, 2000, Lambert signed and submitted a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. The United States District Court for the Southern District of Ohio received the petition only on February 9, 2000, but considered the date of submission to be the filing date. See Houston v. Lack, 487 U.S. 266, 270-72, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Towns v. United States, 190 F.3d 468, 469 (6th Cir.1999). On May 15, the respondent sought to dismiss the petition as untimely under AEDPA. In response, Lambert asserted that the statute of limitation started only after the Ohio Supreme Court rejected his 26(B) application. Lambert asserted that his 26(B) application restarted the statute of limitation and that the statute did not run during the time he could have filed for a petition for a writ of certiorari in the United States Supreme Court challenging the Ohio Supreme Court’s denial of his appeal of the Ohio appellate court’s denial of his 26(B) application. On March 19, 2001, the district court, disagreeing, dismissed the petition as untimely. Before this court now is Lambert’s timely appeal of that dismissal.

II

The timeliness of this petition is a question of the proper application of the AED-PA statute of limitations and its tolling provision.

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 ... date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.

28 U.S.C. § 2244(d)(1)(A) (emphasis added).

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.

[3]*328 U.S.C. § 2244(d)(2) (emphasis added). The distinction between direct and collateral review is significant in the application of the AEDPA time limit. Direct review delays the start of the statute of limitations. Collateral review merely tolls its running. Direct review is not subject to a “properly-filed” requirement. Collateral review is. On direct review, the time for filing of petitions of certiorari and proceedings in the United States Supreme Court do not count towards the limitation period. On collateral review, they do. See Abela v. Martin, 309 F.3d 338, 345-48 (6th Cir.2002), vacated by 318 F.3d 1155 (6th Cir.2003) (granting rehearing en banc to reconsider this issue); see also Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir.2000); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999). Therefore the proper classification of 26(B) proceedings as part of direct or collateral review is crucial.

The key case for Ohio procedure on claims of ineffective assistance of appellate counsel is State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (Ohio 1992). Murnahan had been convicted of and sentenced for involuntary manslaughter and aggravated vehicular homicide in Ohio trial court. Id. at 1205-06. On direct appeal, Murnahan’s counsel submitted an Anders brief and was permitted to withdraw. Id. at 1206. After giving Mumahan an opportunity to submit a pro se brief, the Ohio Court of Appeals rejected his appeal. Ibid. Ohio permits motions for post-conviction relief under certain grounds to be filed in state trial courts. Ohio R.C. 2953.21. Murnahan filed such a motion, claiming that his appellate counsel had been constitutionally ineffective, but the trial court held that such claims were not cognizable under Ohio R.C. 2953.21. Ibid. The appellate court reversed that holding but, rather than remanding, certified the issue to the Ohio Supreme Court. Ibid. Because allowing a inferior trial court to rule on the adequacy of a proceeding in a superior appellate court would be incompatible with the hierarchical structure of the state court system, the Ohio Supreme Court “h[e]ld that claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21.” Id. at 1208 (emphasis added).

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Bluebook (online)
81 F. App'x 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambert-v-warden-ca6-2003.