Stokes v. Leonard

36 F. App'x 801
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 4, 2002
DocketNo. 00-3797
StatusPublished
Cited by36 cases

This text of 36 F. App'x 801 (Stokes v. Leonard) 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
Stokes v. Leonard, 36 F. App'x 801 (6th Cir. 2002).

Opinion

BATCHELDER, Circuit Judge.

The Petitioner-Appellant, Frank L. Stokes, appeals the district court’s orders dismissing as time-barred his habeas corpus petition, filed on April 16, 1999, and denying his motion to alter or amend that judgment. Finding that the district court properly concluded that the petition was not brought within the period required by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), we will affirm.

Stokes was convicted of rape in Franklin County, Ohio, and sentenced to life imprisonment on May 18, 1990. His conviction was affirmed on direct appeal,1 and on July 17, 1991, the Ohio Supreme Court denied jurisdiction. Stokes filed a petition for post-conviction relief in the Franklin County Common Pleas Court on September 20, 1996. The court denied the petition on April 11, 1997. The Franklin County Court of Appeals affirmed on March 19, 1998.2 The Ohio Supreme Court, on July 15, 1998, again denied jurisdiction.

On April 16, 1999, Stokes filed a habeas petition under 28 U.S.C. § 2254, asserting a number of constitutional claims, including a claim that his trial counsel provided ineffective assistance because he failed to conduct any investigation into the charges of sexual abuse or to retain an expert [803]*803witness to counter the state’s sexual abuse evidence. The Warden moved to dismiss the petition arguing that the statute of limitations. 28 U.S.C. § 2244(d),3 barred Stokes’s petition. Stokes responded with two claims: first, that the statute of limitations did not begin to run until October 13, 1998, the date on which the time expired for filing a petition for certiorari in the Supreme Court, or, alternatively, that the statute of limitations was tolled from September 20, 1996, the date that he filed his petition for collateral review, until October 13, 1998, the last date on which he could have filed a petition for certiorari in the Supreme Court.

Citing Brown v. O’Dea, 187 F.3d 572, 577 (6th Cir.1999), the district court held that because Stokes’s conviction became final prior to the effective date of AEDPA, the statute of limitations began to run on April 24, 1996, the effective date of AED-PA, and Stokes had one year from that date within which to file his petition for habeas corpus. Further, the court held, the statute was tolled only during the period in which the petition for post-conviction relief was actually pending, that is, from the date on which Stokes filed his petition for post-conviction relief in the state court until the Ohio Supreme Court denied further review. That period, the court said, did not include the time during which Stokes could have sought-but did not in fact seek-review in the United States Supreme Court. See, e.g., Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999). Hence, the statute of limitations ran from April 24, 1996, until September 20, 1996; was tolled from September 20, 1996, until July 15, 1998; resumed on July 16, 1998; and expired on February 17, 1999.

In his timely motion to alter or amend, Stokes raised for the first time the claim that he did not discover the factual predicate to his ineffective assistance of counsel claim until September 5, 1996, the date on which his expert, Dr. Brams, executed an affidavit containing her opinion that Stokes’s trial counsel’s failure to utilize readily available scientifically based data, or to employ an expert witness at trial to rebut the state’s witnesses concerning child abuse allegations and child victim testimony, was inexcusable. Because his discovery of this particular deficiency in his trial counsel’s performance was the latest of the triggering events under 28 U.S.C. § 2244(d)(1)(D), Stokes argued, the statute of limitations did not begin to run until that date. Under his rationale, the statute was then tolled throughout the period of his post-conviction proceedings, ending either on July 15, 1998, (when the Ohio Supreme Court denied further review) or-as he continued to argue-on October 13, 1998 (at the expiration of the period for review by the Supreme Court).

The district court denied the motion, holding that the date on which Dr. Brams signed her affidavit was not the date on which Stokes could have discovered the factual predicate for his claim of ineffective assistance of counsel and that Stokes had entirely failed to show why he did not discover the ineffective assistance earlier, given that the acts complained of occurred during his 1990 trial. The district court [804]*804granted Stokes’s application for a certificate of appealability.

In his opening brief on appeal Stokes advances two arguments in support of his claim that the district court erred in holding that his petition is time-barred: (1) the statute of limitations, under § 2244(d)(1)(D), did not begin to run until September 5, 1996, the date he claims to have discovered the factual predicate to his ineffective assistance of counsel claim; and (2) the statute of limitations was tolled during the period that he could have sought review in the United States Supreme Court. In his reply brief, however, Stokes concedes that our decision in Isham v. Randle, 226 F.3d 691 (6th Cir.2000) forecloses the latter argument.

We review de novo the district court’s interpretation of a statute. United States v. Alvarez, 266 F.3d 587, 591 (6th Cir. 2001). The district court’s factual conclusions we review for clear error. Warner v. United States, 975 F.2d 1207, 1214 (6th Cir.1992).

We find no error in the district court’s order dismissing the petition. Accordingly, we hold that the statute of limitations began to run on April 24, 1996, the effective date of AEDPA; was tolled from September 20, 1996, through July 15,1998, the period during which Stokes’s post-conviction proceedings were actually pending; resumed on July 16, 1998; and expired, at the latest, on February 17, 1999, well before this petition for a writ of habeas corpus was filed. Accordingly, unless Stokes can demonstrate some other basis upon which we must find that the statute of limitations did not begin to run on April 24, 1996, the effective date of AEDPA, or was tolled beyond February 17, 1999, his petition is time-barred. We therefore turn to Stokes’s claim that the district court erred in denying his motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).

The statute of limitations runs from the latest of several specified events, 28 U.S.C. § 2244

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36 F. App'x 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stokes-v-leonard-ca6-2002.