Wonsch v. Crow

Opinion

Appellate Case: 22-6040 Document: 010110775577 Date Filed: 11/30/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 30, 2022 _________________________________ Christopher M. Wolpert Clerk of Court ROBERT V. WONSCH,

Petitioner - Appellant,

v. No. 22-6040 (D.C. No. 5:21-CV-00826-PRW) SCOTT CROW, (W.D. Okla.)

Respondent - Appellee. _________________________________

ORDER _________________________________

Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges. _________________________________

Robert V. Wonsch, an Oklahoma prisoner proceeding pro se, has moved for a

certificate of appealability (COA) so he may appeal the district court’s denial of his

28 U.S.C. § 2254 petition. We previously denied this motion by order dated

November 3, 2022. In an order filed earlier today, however, we granted respondent

Scott Crow’s motion for panel rehearing, and we vacated that November 3 order. For

the reasons set forth below, we now grant a COA, vacate the underlying district court

order, and remand to the district court for further proceedings.

I. BACKGROUND & PROCEDURAL HISTORY

In December 2018, Wonsch received a sentence totaling seventy years for

eleven offenses of which he had been convicted after a jury trial in Oklahoma state

court. He appealed to the Oklahoma Court of Criminal Appeals (OCCA), which Appellate Case: 22-6040 Document: 010110775577 Date Filed: 11/30/2022 Page: 2

affirmed on April 23, 2020. Over the next year or so, Wonsch continued to seek

relief from that conviction through various motions filed in the Oklahoma courts, and

he believed he had exhausted his state-court remedies as of July 21, 2021 (the date on

which the state trial court entered an order denying one of those motions).

Wonsch filed a 28 U.S.C. § 2254 petition in Oklahoma federal court on August

20, 2021. In response, Crow filed two pre-answer motions to dismiss. (Crow is only

the nominal respondent, so from this point forward we will refer to the party

opposing Wonsch’s petition as “the State.”) The State’s first motion asserted that

Wonsch had failed to file within the statute of limitations for § 2254 petitions. The

second motion argued that Wonsch had failed to exhaust his state-court remedies.

The district court only reached the merits of the first motion. The court held

that § 2254’s one-year filing window began to run on July 23, 2020, and so expired

on July 23, 2021, about a month before Wonsch filed his petition. The court made

that calculation by taking the date of the OCCA’s direct-appeal decision (April 23,

2020), and adding ninety days (the time allotted by U.S. Supreme Court Rule 13.1 for

filing a certiorari petition). See 28 U.S.C. § 2244(d)(1)(A) (providing that a § 2254

petitioner must file that petition within one year from the date the conviction

becomes “final,” meaning, in this instance, the “conclusion of direct review or the

expiration of the time for seeking such review”); Gonzalez v. Thaler, 565 U.S. 134,

150 (2012) (holding that if a petitioner does not seek certiorari, the conviction

becomes final when the time for pursuing that relief expires). That comes out to

July 22, 2020. The district court then held that the one-year filing window began the

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following day, July 23. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir.

2011) (calculating the first day of the § 2254 filing window as the day after the

conviction becomes final). Thus, Wonsch needed to file his § 2254 petition on or

before July 23, 2021, and he did not.

The district court examined various potential grounds for excusing Wonsch’s

untimeliness and found that none of them applied. Thus, it granted the State’s

motion to dismiss the § 2254 petition as untimely, and it denied the State’s other

motion (regarding exhaustion) as moot.

Wonsch then moved for a COA from this court. Wonsch’s motion focused on

reasons to excuse his untimeliness. He did not argue that the district court erred

when it calculated the various relevant dates. We found that Wonsch had not raised a

debatable argument that his untimeliness should be excused, and so we denied a

COA.

The State now tells us that it believes it misled the district court about the

proper date calculation. Counsel for the State says he recently became aware of a

March 19, 2020, miscellaneous order from the United States Supreme Court

prompted by the onset of the COVID-19 pandemic. This order lengthened the

deadline to file a certiorari petition for an additional sixty days (i.e., for a total of 150

days). See Order at 1, 589 U.S. ___ (U.S. Mar. 19, 2020). That order remained in

effect until July 19, 2021. See Order at 1, 594 U.S. ___ (U.S. July 19, 2021).

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II. ANALYSIS

We commend the State for bringing this matter to our attention. The extra

sixty days potentially has an important effect here. Again, the OCCA issued its

direct-appeal decision on April 23, 2020, when the Supreme Court’s extension was in

effect. Applying that extension, Wonsch’s certiorari deadline was September 21,

2020, meaning his § 2254 filing window opened on September 22, 2020, and closed

one year later. Wonsch filed his § 2254 petition on August 20, 2021, before that

window closed.

In this light, we believe “jurists of reason would find it debatable whether the

district court was correct in its [timeliness] ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). A COA is therefore appropriate. But we need not go on to rule that

the State’s new calculation is correct. The State never brought the Supreme Court’s

extension order to the district court’s attention, and we believe the district court

should receive the first opportunity to decide if and how it applies.

III. CONCLUSION

We grant a COA. Further, we vacate the district court’s February 17, 2022,

order, and we remand this matter to the district court for further proceedings

consistent with this order. Given this disposition, Wonsch’s petition for rehearing is

denied as moot. The mandate shall issue forthwith.

Entered for the Court

Timothy M. Tymkovich Circuit Judge