Walker v. Smith

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 13, 2004
• Docket: 03-1611
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Walker v. Smith No. 03-1611 ELECTRONIC CITATION: 2004 FED App. 0049P (6th Cir.) File Name: 04a0049p.06 Lansing, Michigan, for Appellee. Everett Walker, New Haven, Michigan, pro se. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

EVERETT WALKER, X BOYCE F. MARTIN, JR., Circuit Judge. Everett Walker, a Michigan state prisoner proceeding without the benefit of Petitioner-Appellant, - counsel, appeals the district court’s dismissal of his habeas - - No. 03-1611 petition as untimely filed under 28 U.S.C. § 2244(d). This v. - case was referred to a panel of this Court pursuant to Rule > 34(j)(1) of the Rules of the Sixth Circuit. Upon examination, , this panel unanimously agrees that oral argument is not DAVID SMITH, Warden, - Respondent-Appellee. - needed. FED . R. APP . P. 34(a). N In May 1991, a jury found Walker guilty of assault with Appeal from the United States District Court intent to commit murder. Accordingly, Walker was sentenced for the Eastern District of Michigan at Detroit. to a twenty to forty year term of imprisonment, which was to No. 02-73007—Robert H. Cleland, District Judge. run consecutively to a sentence that he was serving at the time of the instant offense. The Michigan Court of Appeals Submitted: January 29, 2004 affirmed Walker’s conviction on October 21, 1994, and the Michigan Supreme Court denied Walker’s application for Decided and Filed: February 13, 2004 leave to appeal on May 30, 1995.

Before: MARTIN and MOORE, Circuit Judges; WEBER, On May 18, 2000, Walker filed a motion for post- District Judge.* conviction relief from judgment alleging, among other things, that his sentence was invalid because it was based upon _________________ inaccurate findings in a court-ordered psychiatric report that he was unable to refute because the sentencing court failed to COUNSEL disclose its content prior to sentencing. The motion was denied on August 23, 2000, and the Michigan Court of ON BRIEF: Debra M. Gagliardi, OFFICE OF THE Appeals denied leave to appeal pursuant to Michigan Court ATTORNEY GENERAL, HABEAS CORPUS DIVISION, Rule 6.508(D). On May 31, 2002, the Michigan Supreme Court likewise denied Walker’s application for leave to appeal. * The Hono rable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.

1 No. 03-1611 Walker v. Smith 3 4 Walker v. Smith No. 03-1611

On June 5, 2002, Walker petitioned for habeas corpus relief § 2244(d)(1). Prisoners whose state appeals concluded by to the United States District Court for the Eastern District of direct review prior to the effective date of the Act are afforded Michigan. Walker’s petition alleged: (1) that his sentence a one-year grace period–until April 24, 1997–in which to file was invalid because it was based upon erroneous information for federal habeas relief. Id. However, “[t]he time during contained in the court-ordered psychiatric report; (2) he was which a properly filed application for State post-conviction or entitled to resentencing because the trial court failed to other collateral review with respect to the pertinent judgment disclose the psychiatric report; (3) that by not disclosing the or claim is pending shall not be counted toward any period of psychiatric report, the trial court violated his right to limitations under this subsection.” 28 U.S.C. § 2244(d)(2). allocution; (4) that he should be resentenced by a different judge; and (5) that his motion for relief satisfied the “good Properly construed, Walker challenges the district court’s cause and actual prejudice” requirements of Michigan Court conclusion that he failed to “properly file” a motion for post- Rule 6.508(D). conviction relief for purposes of tolling under section 2244(d)(2). Walker alleged that he filed a motion for post- On April 18, 2003, the district court held, pursuant to conviction relief to correct his sentence twice in 1995 and 28 U.S.C. § 2244(d), that Walker’s habeas corpus petition once in 1996, but his motion never appeared on the court’s was untimely filed. Thereafter, Walker filed a motion for docket sheets. However, Walker’s exhibits demonstrate that reconsideration and a request for a certificate of appealability. one of his 1995 motions was stamped as received by the state On June 11, 2003, the district court denied the motion for court on August 2, 1995. Warden Smith argued, and reconsideration, but issued a certificate of appealability on the apparently the district court agreed, that because this motion following issue: “Whether [Walker’s] habeas petition was never appeared on the state court’s docket sheets, Walker barred from substantive review pursuant to the statute of could not prove that it was filed, much less “properly filed” limitations, 28 U.S.C. 2244(d).” for section 2244(d)(2) purposes. We find this argument unsupported by the record. On appeal, Walker argues that the district court erred in finding his habeas corpus petition untimely, because he was “An application is ‘filed,’ as that term is commonly entitled to tolling under 28 U.S.C. § 2244(d). We review de understood, when it is delivered to, and accepted by, the novo a district court’s determination that a habeas corpus appropriate court officer for placement into the official petition was untimely filed. Cook v. Stegall, 295 F.3d 517, record. And an application is ‘properly filed’ when its 519 (6th Cir. 2002). Because Walker’s habeas corpus petition delivery and acceptance are in compliance with the applicable was filed after the effective date of the Antiterrorism and laws and rules governing filings.” Artuz v. Bennett, 531 U.S. Effective Death Penalty Act of 1996, our review is governed 4, 8 (2000). Although the state court’s docket sheet does not by the Act. Mason v. Mitchell, 320 F.3d 604, 613 (6th Cir. reflect that Walker filed a motion for post-conviction relief in 2003). Upon review, we find that the district court erred in 1995, we do not find this fact determinative in this case. finding Walker’s habeas corpus petition untimely. Although the motion does not appear on the state court Under the Antiterrorism and Effective Death Penalty Act, docket sheet, the record demonstrates that Walker did a state prisoner has one year from the conclusion of the properly file a motion for post-conviction relief in 1995, prisoner’s state proceedings in which to file a petition for because the state court decided the merits of that motion on habeas corpus relief. Cook, 295 F.3d at 519; 28 U.S.C. March 28, 2003. The district court found that the state court’s No. 03-1611 Walker v. Smith 5 6 Walker v. Smith No. 03-1611

March 28, 2003, order must have addressed the merits of Notably, no party has addressed the fact that Walker’s “some motion other that [Walker’s] motions to correct [his] motion to correct his sentence raised only state law based sentence,” because it was titled a “motion for relief for grounds for relief. Given the parties’ silence, we do not judgment.” We conclude otherwise. address the implication of this fact on the tolling provisions of the Antiterrorism and Effective Death Penalty Act, see The record illustrates that on February 4, 2003, the state Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999); but see court ordered the prosecution to respond to Walker’s “motion Cowherd v. Million, 80 Fed. Appx. 415 (6th Cir. 2003), for relief from judgment.” The state docket sheet, however, vacated and reh’g en banc granted January 12, 2004, nor do does not demonstrate that there was an outstanding motion we address whether Warden Smith in failing to raise this before the court. On March 18, 2003, the state prosecution argument before the district court and our Court has now responded to the court’s order and filed an “Answer in waived the right to argue this issue. Opposition to Defendant’s Motion for Relief From Judgment.” Although the state prosecution titled its response Thus, for the foregoing reasons, we REVERSE the district as a response to Walker’s motion for relief from judgment it court’s decision that Walker never properly filed a motion for becomes clear upon comparison that the state prosecution was post-conviction relief, and REMAND the case to the district responding to Walker’s motion to correct his sentence. court for consideration of the record as a whole. Indeed, the arguments that Walker made in his motion to correct his sentence paralleled the arguments that the state prosecution asserted to defeat Walker’s “motion for relief from judgment.” Thus, we find that although the state court changed the title of Walker’s motion to a motion for relief from judgment, its March 28, 2003, order actually decided Walker’s motion to correct his sentence. Our determination that the state court decided Walker’s motion to correct his sentence compels the conclusion that Walker “properly filed” a motion for post-conviction relief under 28 U.S.C. § 2244(d). Indeed, it would be dubious to suggest that Walker never properly filed a motion for post-conviction relief when the state court actually decided, albeit belatedly, the merits of that motion.1

1 Although not argued by Smith, we do not find the fact that Walker filed a “M otio n to W ithdraw The M otion To Correct Sentenc e,” determinative of our decision for two reasons. J.A. 403. First, we see no evidence in the record to suggest that the state court ruled on this motion. Second , though not artfully pleaded, we interpret this motion not as an attempt to actually have the state court withdraw said motion, but rather notify the court of its own mistake in titling the motion. We believe that we find that the intent of this motion was either to change the title of the our interpretation is in perfect accord with the intention of W alker, a original motio n to confo rm with the state court’s modifica tion of it or to prisoner proceeding without the benefit of co unsel.