Michael Wayne Jenkins v. Dan Johnson, Superintendent

Opinion by Judge BETTY B. FLETCHER. Dissent by Judge O’SCANNLAIN.

OPINION

This case poses the question of when a federal habeas petitioner’s state-court petition for post-conviction relief counts as “properly filed” and as “pending” for the purposes of tolling the Anti terrorism and Effective Death Penalty Act’s (“AED- *1148 PA’s”) one-year limitations period. Petitioner Michael W. Jenkins (“Jenkins”) filed a post-conviction petition in Oregon state court, which the state court dismissed in September 1996. Due to a clerical error in the state court, Jenkins’ attorney received no notice of the ruling until January 1997. As a result, Jenkins missed the state-law deadline for filing a late notice of appeal, and the Oregon Court of Appeals rejected his notice of appeal. Jenkins then appealed the Court of Appeals’ ruling to the Oregon Supreme Court, and, after his appeal was rejected, filed a federal habeas petition in May 1998. The district court dismissed Jenkins’ petition as time-barred but issued a certificate of appeal ability (COA) covering claims respecting AED-PA’s statute of limitations and tolling provisions. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a),…

dissenting:

The court holds that Jenkins’s state post-conviction petition was “properly filed” within the meaning of 28 U.S.C. § 2244 (d)(2) on the basis of a purported ambiguity in Oregon law that existed at the time of filing of his petition for relief but has since been clarified. I respectfully disagree. The plain meaning of Oregon statutory law was perfectly clear, and we are bound to follow it. Accordingly, I would affirm the district court, and hold that Jenkins was not entitled to statutory tolling and that his federal petition was therefore untimely under AEDPA.

I

At issue, of course, is whether Jenkins is entitled to statutory tolling under § 2244(d)(2), thereby rendering his writ of federal habeas corpus timely. Statutory tolling applies to “[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) (emphasis added). A petition is “properly filed” within the meaning of § 2244(d)(2) if it satisfies certain procedural requirements known as “conditions to fifing.” Artuz v. Bennett, 531 U.S. 4, 11 , 121 S.Ct. 361 , 148 L.Ed.2d 213 (2000).…

330 F.3d 1146 Michael Wayne JENKINS, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Respondent-Appellee. No. 99-36194. United States Court of Appeals, Ninth Circuit. Argued March 7, 2002. Submitted May 13, 2003. Filed May 20, 2003. Steven T. Wax and Lisa Hay, Federal Public Defender's Office, Portland, OR, for the petitioner-appellant. Daniel J. Casey, Justice Department, State of Oregon, Salem, OR, for the respondent-appellee. Appeal from the United States District Court for the District of Oregon Ann Aiken, District Judge, Presiding. D.C. No. CV-98-00590-ALA. Before B. FLETCHER, O'SCANNLAIN, and BERZON, Circuit Judges. Opinion by Judge BETTY B. FLETCHER. Dissent by Judge O'SCANNLAIN. OPINION BETTY B. FLETCHER, Circuit Judge. 1 This case poses the question of when a federal habeas petitioner's state-court petition for post-conviction relief counts as "properly filed" and as "pending" for the purposes of tolling the Anti terrorism and Effective Death Penalty Act's ("AEDPA's") one-year limitations period. Petitioner Michael W. Jenkins ("Jenkins") filed a post-conviction petition in Oregon state court, which the state court dismissed in September 1996. Due to a clerical error…