Tykee Ross v. Kenneth McKee , 465 F. App'x 469 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0230n.06
No. 10-1454
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 28, 2012
TYKEE ROSS, )
) LEONARD GREEN, Clerk
Petitioner-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
KENNETH T. MCKEE, Warden, ) DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
Before: BOGGS and STRANCH, Circuit Judges; and CARR, District Judge*
BOGGS, Circuit Judge. Tykee Ross appeals a district court’s decision to dismiss his
petition for writ of habeas corpus as time-barred by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Ross was convicted of first-degree felony murder and sentenced to life
imprisonment. After an unsuccessful direct appeal, he filed for state post-conviction relief, which
was denied by Michigan’s trial and appeals courts. Under Michigan law, Ross had fifty-six days
after the Michigan Court of Appeals rejected his claim to file an application for leave to appeal in
the Michigan Supreme Court. Ross, through counsel, attempted to comply by sending such an
application to the Michigan Supreme Court clerk’s designated mailing address via United States
Postal Service express mail. The properly addressed application arrived at the proper address at 9:05
*
Hon. James G. Carr, Senior United States District Judge for the Northern District of Ohio,
sitting by designation.
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a.m. on the last day of the filing period, as shown by a Postal Service receipt. The Michigan
Supreme Court, however, did not docket the application until the next day—one day after the end
of the filing period—and rejected the application as time-barred. Nearly one year later, Ross filed
his federal habeas petition. The district court dismissed the petition as time-barred, even though it
would have been timely, had the Michigan Supreme Court accepted Ross’s application for leave to
appeal, thus tolling the AEDPA statute of limitations. Evans v. Chavis, 546 U.S. 189, 197 (2006)
(holding that properly filed application for state-court discretionary review tolls AEDPA limitations
period). The district court reasoned that AEDPA’s limitations clock started when the Michigan
Court of Appeals denied Ross relief, since the Michigan Supreme Court denied his application for
leave to appeal as improperly filed. It also held that Ross was not entitled to equitable tolling, based
on the state-court clerk’s delay in formally filing his application. For the reasons that follow, we
affirm in part, reverse in part, and remand for the district court to consider the merits of Ross’s
petition.
I
Ross was convicted of first-degree felony murder in December 2001 and sentenced
to life imprisonment in January 2002. His direct appeal failed in the Michigan appeals and supreme
courts, and came to a conclusion when the time for filing a petition for writ of certiorari with the
Supreme Court passed on December 27, 2004. On January 25, 2005, Ross filed a motion for relief
from judgment in state court. The court denied his motion on July 29, 2005, and denied a motion
for reconsideration on December 1, 2005. On July 28, 2006, Ross filed a delayed application for
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leave to appeal in the Michigan Court of Appeals. That court denied Ross’s application on March
30, 2007, and denied his motion for reconsideration on May 9, 2007.
Ross, through counsel, then attempted to file an application for leave to appeal in the
Michigan Supreme Court. Under M.C.R. 7.302(C)(2), he had to file such an application no later
than fifty-six days after denial of his motion for reconsideration, or by July 4, 2007. Since July 4 is
a national holiday, however, Ross was required to file his application by the end of the day on July
5, 2007. The Michigan Supreme Court Clerk maintains a post office box at the state secondary
complex, where litigants may send filings. Ross’s application arrived at this post office box via
express mail at 9:05 a.m. on July 5, 2007. Although the tracking information Ross’s counsel
provided does not contain an address, the State does not dispute that the package was properly
addressed and arrived at the post office box at the time the receipt indicates. Nevertheless, the
clerk’s office failed to file the application until July 6, when it denied the application as time-barred.
Nearly one year later, on June 1, 2008, Ross filed a petition for writ of habeas corpus
in the District Court for the Eastern District of Michigan.1 The State filed a motion to dismiss on
statute-of-limitations grounds. See 28 U.S.C. § 2244(d)(1) (creating one-year statute of limitations
for federal habeas from end of state post-conviction review); Jimenez v. Quarterman, 555 U.S. 113,
119 (2009) (“[D]irect review cannot conclude for purposes of § 2244(d)(1)(A) until the availability
of direct appeal to the state courts and to this Court has been exhausted.”) (internal quotations and
1
As the district court noted, Ross gave his petition to prison officials on June 1, 2008, even
though the district court did not file it until June 11, 2008. Under the prisoner mailbox rule, the
petition is considered filed when placed in the prison mail system. Houston v. Lack, 487 U.S. 266,
276 (1988).
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citations excluded). Initially, the district court denied the State’s motion. It held that AEDPA’s
statute of limitations ran for twenty-eight days between the date Ross’s conviction became final and
the date he filed his state collateral-review pleading, and for another 331 days after the prescribed
period for seeking leave to appeal in the Michigan Supreme Court expired on July 5, 2007 until Ross
filed his federal habeas petition on June 1, 2008. Thus, the AEDPA limitations period had run for
only 359 days, and the petition was timely.
The district court subsequently reconsidered its decision, and correctly held that an
improperly filed petition for discretionary review in state court did not toll the AEDPA statute of
limitations. Evans, 546 U.S. at 197. Ross’s petition for leave to appeal was late—and therefore
improper—under Michigan law. As such, the court held that the limitations period began to run
when the Michigan Court of Appeals denied Ross’s motion for reconsideration on May 9, 2007.
Ross’s June 2008 habeas petition was, therefore, untimely: twenty-eight days elapsed between the
day Ross’s conviction became final and the day he filed his state collateral-review pleading, and
another 388 days elapsed between the day the Michigan Court of Appeals denied his motion for
reconsideration, and the day he filed his petition for writ of habeas corpus. Ross appeals from this
decision. He argues first that he timely filed his motion for leave to appeal in the Michigan Supreme
Court; and second that equitable tolling is appropriate in this case because the motion for leave to
appeal arrived timely at the Michigan Supreme Court’s mailing address.
II
AEDPA provides:
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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
....
28 U.S.C. § 2244(d)(1)(A). Direct review, within the meaning of § 2244(d)(1)(A), does not
conclude “until the availability of direct appeal to the state courts and to [the Supreme] Court has
been exhausted.” Jimenez, 555 U.S. at 119 (internal quotations and citations omitted).
AEDPA, however, tolls this limitations period for “[t]he 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.” 28 U.S.C. § 2244(d)(2). A petition for discretionary review in state
court counts as “state post-conviction or other collateral review,” ibid., and thus tolls AEDPA’s
statute of limitations, as long as it is timely filed. Carey v. Saffold, 536 U.S. 214, 219–20 (2002);
Evans, 546 U.S. at 197 (“[O]nly a timely appeal tolls AEDPA’s 1-year imitations period for the time
between the lower court’s adverse decision and the filing of a notice of appeal in the higher court.”).
If such a petition is untimely, however, the date of the last final lower-court decision is the date the
limitations period begins to run, since a petition for writ of certiorari following state post-conviction
review does not toll AEDPA’s statute of limitations. Lawrence v. Florida, 549 U.S. 327, 331–36
(2007).
A
Michigan Court Rule 7.302(C)(2)(b) requires that an “application [for leave to appeal]
. . . be filed . . . within . . . 56 days in criminal cases . . . after the filing of the opinion appealed
from.” M.C.R. 7.302(C)(2)(b). “Late applications [are] not . . . accepted.” Id. at 7.302(C)(3).
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The Michigan Court of Appeals denied Ross’s application for leave to appeal on
March 30, 2007, and denied his motion for reconsideration on May 9, 2007. As such, Ross was
required to file his application for leave to appeal with the Michigan Supreme Court by July 5, 2007.
Ross’s application reached the Michigan Supreme Court’s mailing address at the state secondary
complex at 9:05 a.m. on July 5. The clerk, however, did not acknowledge receipt of the application
until July 6, fifty-seven days after the Court of Appeals’s decision, and one day after the end of the
prescribed filing period. The clerk denied the application as untimely, citing Rule 7.302(C)(2)(b).
When Ross questioned this decision, the clerk insisted: “late applications will not be accepted.”
Pet’r’s Br. at 17; M.C.R. 7.302(C)(3).
Ross claims that, because his application for leave to appeal arrived timely at the
Michigan Supreme Court’s mailing address, it was timely filed under Michigan law. This court does
not have the power to resolve such a claim. To do so would be to dictate Michigan procedural law
to the Michigan Supreme Court. “This court . . . does not function as an additional state appellate
court reviewing state-court decisions on state law or procedure.” Vroman v. Brigano, 346 F.3d 598,
604 (6th Cir. 2003) (internal citations omitted). Rather, as a federal court, we are “obligated to
accept as valid a state court’s interpretation of state law and rules of practice of that state.” Ibid.We therefore defer to the Michigan Supreme Court’s interpretation of M.C.R. 7.302(C)(3), and hold
that Ross’s application for leave to appeal was not timely filed.
Because an untimely application for leave to appeal does not toll AEDPA’s statute
of limitations, Evans, 546 U.S. at 197, the limitations clock—which had already run for twenty-eight
days between Ross’s direct and Michigan-collateral proceedings—began to run again on May 9,
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2007, when the Michigan Court of Appeals denied Ross’s motion for reconsideration. Three-
hundred and eighty-eight days passed between that date and June 1, 2008, when Ross filed his
petition for writ of habeas corpus. In total, then, four-hundred and sixteen statute-of-limitations days
elapsed from the day Ross’s judgment became final to the day he filed his habeas petition. This
time-gap exceeds AEDPA’s one-year habeas statute of limitations. See 28 U.S.C. § 2244(d)(1)(A).
Ross’s petition is, therefore, time-barred in terms of statutory tolling.
B
Ross next argues that the district court should address the merits of his petition
because he is entitled to equitable tolling from May 9, 2007 to July 5, 2007. He reasons that his
application for leave to appeal arrived at the mailing address the Michigan Supreme Court designated
for filings on the morning of July 5, the last day of the period created by state law for a timely
petition for leave to appeal. Had the clerk docketed the application that day, it would have been
properly filed, the AEDPA statute of limitations would have been tolled, and Ross’s federal habeas-
corpus petition would have been timely when he filed it on June 1, 2008.
The Supreme Court recently confirmed that Ҥ 2244(d) is subject to equitable tolling
in appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Equitable tolling allows
courts to entertain otherwise time-barred proceedings when “a litigant’s failure to meet a legally
mandated deadline unavoidably arose from circumstances beyond that litigant’s control.” Graham-
Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552, 560–61 (6th Cir. 2000). “Although
equitable tolling is used sparingly by federal courts,” this court does grant such relief in appropriate
circumstances. Johnson v. Hudson, 421 F. App’x 568, 571 (6th Cir. 2011).
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“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Holland, 130 S. Ct. at 2562 (internal quotations omitted); see also Hall
v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749–50 (6th Cir. 2011) (holding that Holland test did
not subsume, but replaced, prior equitable-tolling test from Andrews v. Orr, 851 F.2d 146, 151 (6th
Cir. 1988)). In determining whether a petitioner meets these two requirements, we “exercise . . .
[our] equity powers . . . on a case-by-case basis,” guided and governed by rules and precedents.
Holland, 130 S. Ct. at 2563 (internal citations omitted). “Where the facts of the case are undisputed
or the district court rules as a matter of law that equitable tolling is unavailable, this court reviews
the decision de novo.” Vroman, 346 F.3d at 601.
Ross urges that equitable tolling should apply because his application arrived at the
Michigan Supreme Court’s mailing address on the morning of July 5, 2007, the last day of the
appeals period. He suggests that he is entitled to equitable tolling because he diligently pursued his
rights by timely filing his documents, and the Michigan Supreme Court’s delay in accepting his
application was an extraordinary circumstance. We agree.
This court considers documents filed when the United States Postal Service “[makes]
delivery at the place directed by the addressee.” Central Paper Co. v. Comm’r of Internal Revenue,
199 F.2d 902, 904 (6th Cir. 1952), superseded by statute, 26 U.S.C. § 7502, as recognized in
Thomas v. United States, 166 F.3d 825, 829–30 (6th Cir. 1999). In Central Paper, a tax case, we
held that delivery to a ledge beside a lock-box the tax court designated for filings “constituted
delivery to The Tax Court.” Ibid. We explained that “[t]here is no twilight zone between delivery
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by the Post Office to the addressee, and receipt, either actual or constructive, by the addressee,”
ibid., and concluded:
the processing and handling of the petition by Tax Court employees
[after the filing arrived] was no concern of the taxpayer. Failure or
unreasonable delay on the part of Tax Court employees to transfer it
from the lock box to the Clerk’s Office, or to stamp it as filed after
receipt in the Clerk’s Office, is not chargeable to the taxpayer.
Id. at 905. Our sister circuits, and district courts nationwide, have adopted similar logic, holding that
delay between a document’s arriving at a post office box or drop-box, designated for court
documents, and the clerk’s docketing the document is not attributable to the filing party. See, e.g.,
Stevens v. Heard, 674 F.2d 320, 322 (5th Cir. 1982) (“[W]hen a party has no control over the delay
between the clerk’s receipt of a notice of appeal and its filing, the fact that a notice of appeal, timely
received, was filed out of time [does] not defeat the appeal.”) (emphasis added); Aldabe v. Aldabe,
616 F.2d 1089, 1091 (9th Cir. 1980) (“Because an appellant has no control over delays between
receipt and filing, a notice of appeal is timely if received by the district court within the applicable
period specified in Rule 4.”); Turner v. City of Newport, 887 F. Supp. 149, 150–51 (E.D. Ky. 1995)
(citing Central Paper, 199 F.2d at 904) (holding that placing a complaint in clerk’s office’s
postoffice box at 11:30 p.m. of the day the statute of limitations expired counted as timely filing);
Hetman v. Fruit Growers Express Co., 200 F. Supp. 234, 237 (D.N.J. 1961) (“I find that the original
complaint in this action was in the Post Office box assigned to the Clerk of this Court in the United
States Post Office in the City of Newark on Saturday, April 22, 1961, and that therefore the action
was commenced within the time required.”); Johnson v. Esso Standard Oil Co., 181 F. Supp. 431,
433–34 (D. Pa. 1960) (“I think that the delivery of this complaint to the Clerk in his post office box
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on Monday, November 24, 1958, constituted a filing of the complaint and commencement of the
plaintiffs’ action on that day, which was prior to the expiration of the two-year period prescribed by
the statute of limitations.”); Johansson v. Towson, 177 F. Supp. 729, 731 (M.D. Ga. 1959) (holding
that “the receipt by the Deputy Clerk of . . . complaints in his Post Office Box in the early morning
hours of Saturday, August 23, constituted a sufficient filing of these suits prior to midnight of the
following day, notwithstanding the fact that the clerk did not open the box until 8:30 a.m. on
Monday, August 25.”).
Under this rule, we would consider Ross’s application for leave to appeal timely. The
package arrived at 9:05 a.m. on July 5, 2007—the morning of the last day of the appeals period—at
the address the Michigan Supreme Court designated for such papers. From that point on, Ross had
no control over when the package arrived in the clerk’s office, or when the clerk opened it and
stamped its contents as “filed.” To charge Ross with the clerk’s delay in filing his application would
be to hold him accountable for circumstances beyond his control. Federal courts sitting in equity do
not condone such a result. See Deloney v. Estelle, 661 F.2d 1061, 1062 (5th Cir. 1981) (“A rigid
application of [Federal Rule of Appellate Procedure 4(a)] would mandate that any appeal would be
dismissed. However, a rigid application under the facts of this case would be unjust.”).
But the issue here is not whether we would have resolved Ross’s case differently,
were we the Michigan Supreme Court. Rather, we must decide whether Ross is entitled to equitable
tolling in federal court, based on the Michigan Supreme Court clerk’s refusal to treat his application
for leave to appeal as timely.
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This court has not addressed the precise question presented—whether a prisoner,
represented by counsel in state post-conviction proceedings, may qualify for equitable tolling based
on a state clerk’s filing delay. We have, however, dealt with an analogous situation. In White v.
Curtis, 42 F. App’x 698 (6th Cir. 2002), a Michigan prisoner delivered his application for leave to
appeal in the Michigan Supreme Court to prison officials on February 6, 1996, two days before his
fifty-six-day appeals period ended on February 8. Id. at 700. The clerk did not receive the
application until February 9. Ibid. Because Michigan does not recognize the prisoner mailbox rule,
the Michigan Supreme Court dismissed the application as time-barred. White, 42 F. App’x at 700.
Had the Michigan court accepted the application in compliance with the federal prisoner mailbox
rule, the prisoner’s federal petition for writ of habeas corpus would have been timely. Id. at 699.
We held that equitable tolling should apply because of “the apparent justice in granting a state
appellant the equitable benefit of the federally-accepted ‘mailbox rule’ for purposes of tolling a
federal statute of limitations.” Id. at 701; see also Burger v. Scott, 317 F.3d 1133 (10th Cir. 2003)
(holding that AEDPA statute of limitations was tolled during four-month delay between date
petitioner delivered state habeas petition to prison officials and date petition was stamped as filed
in state court, even though Oklahoma did not apply prisoner mailbox rule).
Similarly, we believe it is appropriate to apply equitable tolling and give Ross the
benefit of our “federally-accepted . . . [rule] for purposes of tolling a federal statute of limitations.”
White, 42 F. App’x at 700. We therefore hold that, because Ross’s application arrived timely at the
address the Michigan Supreme Court designated for court documents, the federal courts should treat
it as timely filed for the purposes of § 2244(d)’s limitations period. The statute of limitations should
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be tolled from May 9, 2007 to July 5, 2007, and the district court should proceed to the merits of
Ross’s petition for writ of habeas corpus.
In so holding, we by no means dictate Michigan law to the Michigan courts. Rather,
we apply our equitable powers to prevent inequity. We recognize, of course, that “[i]n the absence
of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors
made in the course of the representation,” Coleman v. Thompson, 501 U.S. 722, 754 (1991), and that
Ross waited for nearly a full year after the Michigan Supreme Court denied his petition for leave to
appeal, before filing his federal habeas petition.2 But neither of these points changes the outcome.
The clerk’s delay, not attorney error, is the reason Ross’s petition was late, and but for the clerk’s
late acceptance of Ross’s filing, Ross’s federal habeas petition would have been timely, even though
he did not file it until June 2008.
Nor does the Supreme Court’s decision in Artuz v. Bennett, 531 U.S. 4 (2000),
compel a contrary conclusion. In Artuz, the Court explained: “An application is ‘filed,’ as that term
is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for
placement into the official record.” Id. at 8. The court below relied on this language, emphasizing
that the clerk did not accept Ross’s application until July 6, 2007, one day after the end of the
limitations period.
Artuz, however, did not address acceptance directly. Rather, it involved “the question
whether an application for state postconviction relief containing claims that are procedurally barred
2
Although Ross attempted to explain this delay below, he presented no such explanation in
this court.
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is ‘properly filed’ within the meaning of [§2244(d)(1)(A)].” Artuz, 531 U.S. at 5. The case did use
the word “accepted,” and noted that “time limits upon . . . delivery, [and] the court and office in
which [an application] must be lodged” were relevant considerations in determining whether filing
was proper. Artuz, 531 U.S. at 8. It was silent on the issue this case presents: the meaning of the
word “acceptance.”
But even to the extent that Artuz is relevant here, it does not compel a different result.
Ross’s application for leave to appeal arrived at the Michigan Supreme Court’s designated mailing
address. There, a state employee accepted the package, by signing the certified mail receipt.
Because the Michigan Supreme Court held out a location other than its clerk’s office as a valid place
for filings, delivery to, and acceptance at, that location constituted filing within the meaning of Artuz.
IV
The Michigan Supreme Court’s delay in filing Ross’s application for leave to appeal,
after Ross timely delivered his pleading to the court’s designated mailing address, should not prevent
him from presenting his petition for writ of habeas corpus to the federal district court. Accordingly,
we hold that equitable tolling of the AEDPA limitations period from May 9, 2007 to July 5, 2007
is appropriate. We AFFIRM the opinion of the district court, insofar as it determines that Ross’s
petition was untimely on statutory grounds. We REVERSE its decision to deny equitable tolling,
however, and REMAND for proceedings consistent with this opinion.
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