Kenneth M. Flanders v. L. W. Graves ( 2002 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 01-3413SI
    _____________
    Kenneth M. Flanders,                     *
    *
    Appellant,                  *
    * On Appeal from the United
    v.                                 * States District Court
    * for the Southern District
    * of Iowa.
    L. W. Graves, Warden,                    *
    *
    Appellee.                   *
    ___________
    Submitted: June 14, 2002
    Filed: August 16, 2002
    ___________
    Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
    ___________
    RICHARD S. ARNOLD, Circuit Judge.
    Kenneth Flanders appeals the District Court’s1 dismissal of his petition for writ
    of habeas corpus as time-barred by the one-year statute of limitations contained in the
    Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244 (d)(1).
    Mr. Flanders contends that because he is “actually innocent,” the one-year statute of
    1
    The Hon. Ronald E. Longstaff, Chief Judge, United States District Court for
    the Southern District of Iowa.
    limitations should be equitably tolled. We disagree and affirm the decision of the
    District Court.
    I.
    The petitioner was charged with kidnaping, sexual abuse, and robbery for his
    involvement in an abduction and attempted rape that occurred on September 22,
    1993. A jury returned a verdict of guilty on all counts, and the petitioner was
    sentenced to life in prison without parole. The Iowa Court of Appeals affirmed his
    convictions for kidnaping and robbery, but merged his conviction for sexual abuse
    into the kidnaping conviction. See State v. Flanders, 
    546 N.W.2d 221
    , 225 (Iowa
    App. 1996). The petitioner then filed an application for further review in the Iowa
    Supreme Court. The Iowa Supreme Court denied that application.
    The petitioner applied for post-conviction relief in the Polk County District
    Court on February 18, 1997. On February 6, 1998, that relief was denied. After the
    Iowa Supreme Court affirmed the denial of post-conviction relief, the petitioner filed
    an application for writ of habeas corpus in the United States District Court for the
    Southern District of Iowa. See 28 U.S.C. § 2254. The State of Iowa moved to
    dismiss the application. It argued that the petition was barred by the one-year statute
    of limitations set forth in AEDPA. On September 25, 2000, the District Court granted
    the state’s motion to dismiss on that basis. Several days later, the petitioner moved
    to set aside the dismissal order. He alleged that his “actual innocence” equitably
    tolled the one-year statute of limitations, which, apart from this contention, would bar
    the petition. On September 14, 2001, the District Court reaffirmed its order
    dismissing the petition. The District Court granted a certificate of appealability on
    the issue of whether the petitioner’s allegations of actual innocence could excuse the
    untimeliness of his petition.
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    II.
    The statute of limitations contained in AEDPA provides that: “[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.” 28 U.S.C. § 2244(d)(1).
    We have recognized that this statute is subject to the doctrine of equitable tolling.
    See Gassler v. Bruton, 
    255 F.3d 492
    , 495 (8th Cir. 2001). Equitable tolling may
    provide an individual relief from a statute of limitations in certain “extraordinary
    circumstances.” Kreutzer v. Bowersox, 
    231 F.3d 460
    , 463 (8th Cir. 2000), cert.
    denied, 
    122 S. Ct. 145
    (2001). “Any invocation of equity to relieve the strict
    application of a statute of limitations must be guarded and infrequent, lest
    circumstances of individualized hardship supplant the rules of clearly drafted
    statutes.” Jihad v. Hvass, 
    267 F.3d 803
    , 806 (8th Cir. 2001) (quoting Harris v.
    Hutchinson, 
    209 F.3d 325
    , 330 (4th Cir. 2000)). These circumstances usually include
    only those that are “external to the petitioner.” 
    Jihad, 267 F.3d at 806
    . For example,
    the one-year statute of limitations may be tolled in situations when a defendant’s
    conduct has “lulled the plaintiff into inaction,” or when circumstances over which a
    prisoner has no control make it impossible to file a timely petition. 
    Kreutzer, 231 F.3d at 463
    . In the past, we have declined to address the question of whether a
    petitioner’s “actual innocence” is a circumstance sufficient to toll the statute of
    limitations. See United States v. Lurie,2 
    207 F.3d 1075
    , 1077 n.4 (8th Cir. 2000).
    Today, we hold that it is not, at least in the circumstances of this case.
    Petitioner points out that “actual innocence” does, in some cases, excuse or
    obviate certain procedural obstacles to the consideration of petitions for habeas
    2
    Other circuits have similarly found it unnecessary to decide this issue. See In
    re Roe, 
    257 F.3d 1077
    , 1081 (9th Cir. 2001); Christensen v. Hines, 2001 W.L.
    237366 (10th Cir. 2001); Lucidore v. New York State Division of Parole, 
    209 F.3d 107
    , 113-14 (2d Cir.), cert. denied, 
    531 U.S. 873
    (2000); Molo v. Johnson, 
    207 F.3d 773
    , 775 (5th Cir. 2000).
    -3-
    corpus on their merits. There is, for example, a judge-made doctrine under which
    certain procedurally defaulted claims are not open for consideration on their merits
    in a habeas proceeding unless the petitioner can show cause for his failure to raise
    these claims properly in state-court proceedings, and prejudice resulting from their
    not having been raised. To this doctrine the Supreme Court has added actual
    innocence as an exception. That is, a petitioner who can show actual innocence can
    get his constitutional claims considered on their merits even if he cannot show cause
    and prejudice. See generally Murray v. Carrier, 
    477 U.S. 478
    , 496 (1986). In such
    cases, the concept of actual innocence is used as a “gateway,” that is, actual
    innocence, if it can be shown, opens the gate to consideration of constitutional claims
    on their merits, claims that would otherwise be procedurally barred. In similar
    fashion, actual innocence has also been available to allow consideration of the merits
    of successive claims. See Sawyer v. Whitley, 
    505 U.S. 333
    (1992); Kuhlmann v.
    Wilson, 
    477 U.S. 436
    (1986).
    These doctrines, allowing the use of actual innocence for certain procedural
    purposes, are now partially codified in AEDPA. 28 U.S.C. § 2244(b)(2)(B)(ii).
    Petitioner argues that these doctrines, which excuse some types of procedural
    defaults, should likewise excuse his failure to file his petition within the period fixed
    by Act of Congress, a failure which he characterizes as a similar “procedural default.”
    We cannot agree with this assertion, at least as a broad concept. We are dealing here
    with a statute. It is our duty to apply statutes as written. The statute fixes a one-year
    period of limitations, and says nothing about actual innocence, even though other
    parts of AEDPA, enacted at the same time, do refer to this doctrine. Compare 28
    U.S.C. § 2244(d)(1), with 28 U.S.C. § 2244(b)(2)(B)(ii). It is not our place to engraft
    an additional judge-made exception onto congressional language that is clear on its
    face.
    It is true that, in some cases, equitable tolling has been applied to limitations
    periods despite the fact that statutes creating them do not expressly refer to the
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    equitable-tolling doctrine. Normally, though, as we have said, equitable tolling
    applies only when some fault on the part of a defendant has caused a plaintiff to be
    late in filing, or when other circumstances, external to the plaintiff and not
    attributable to his actions, are responsible for the delay. None of that can be said in
    this case. Petitioner does not claim that anything respondents have done made it
    impossible or difficult for him to uncover the facts that he now claims establishes
    actual innocence. Indeed, he does not refer us to any circumstances, attributable to
    the defendants or to any other cause, that prevented him, in the exercise of reasonable
    diligence, from discovering these facts soon enough to enable him to bring a timely
    habeas petition. In sum, petitioner does not claim that wrongdoing on the part of the
    State of Iowa prevented him from filing a timely petition, nor does he show why he
    did not assert his claim within the one-year statute of limitations. To allow an
    assertion of actual innocence to excuse the running of the statute in such
    circumstances would take the equitable-tolling doctrine far from its original and
    legitimate rationale.
    We do not hold that actual innocence can never be relevant to a claim that the
    habeas statute of limitations should be equitably tolled. For such a claim to be viable,
    though, a petitioner would have to show some action or inaction on the part of the
    respondent that prevented him from discovering the relevant facts in a timely fashion,
    or, at the very least, that a reasonably diligent petitioner could not have discovered
    these facts in time to file a petition within the period of limitations. The petitioner in
    this case, Mr. Flanders, has made no such showing. Accordingly, the District Court
    was correct in dismissing his petition as barred by the one-year statute of limitations
    contained in AEDPA, and the judgment of that Court is
    Affirmed.
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    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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