Percy Stanley Harris v. RONALD HUTCHINSON, Warden, No. 99-6175 Maryland House of Corrections

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PERCY STANLEY HARRIS,
Petitioner-Appellant,
v.
RONALD HUTCHINSON, Warden,
No. 99-6175
Maryland House of Corrections; J.
JOSEPH CURRAN, JR., Attorney
General of the State of Maryland,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-98-2410-JFM)
Argued: January 28, 2000
Decided: April 4, 2000
Before NIEMEYER, Circuit Judge,
HAMILTON, Senior Circuit Judge,
and Frederic N. SMALKIN, United States District Judge
for the District of Maryland, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Senior Judge Hamilton and Judge Smalkin joined.
_________________________________________________________________
COUNSEL
ARGUED: Fred Warren Bennett, BENNETT & NATHANS, L.L.P.,
Greenbelt, Maryland, for Appellant. Ann Norman Bosse, Assistant

-- 1 of 10 --

Attorney General, Criminal Appeals Division, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees. ON
BRIEF: Michael E. Lawlor, BENNETT & NATHANS, L.L.P.,
Greenbelt, Maryland, for Appellant. J. Joseph Curran, Jr., Attorney
General of Maryland, Criminal Appeals Division, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
On July 22, 1998, Percy Harris filed this federal habeas petition to
challenge his Maryland state court conviction. He filed his petition
more than one year after enactment of the Anti-Terrorism and Effec-
tive Death Penalty Act of 1996, which established a one-year limita-
tion period for filing federal habeas petitions, but less than one year
after he completed state post-conviction review proceedings. The dis-
trict court dismissed Harris' petition as untimely.
On appeal, Harris contends (1) that the district court misapplied the
federal statute of limitations or, alternatively, (2) that the running of
the time should have been "equitably tolled" because Harris relied on
his attorney's reasonable interpretation of the statute. For the reasons
that follow, we affirm the district court's dismissal order.
I
On November 9, 1990, Percy Harris was convicted in Maryland
state court of first-degree murder and related offenses. He was sen-
tenced to life imprisonment. Harris pursued a direct appeal of his con-
viction to the Maryland Court of Special Appeals, which affirmed his
conviction, and he petitioned the Maryland Court of Appeals for a
writ of certiorari, which was denied on April 24, 1992. See Harris v.
State, 605 A.2d 101 (Md. 1992).
Four years later, the Anti-Terrorism and Effective Death Penalty
Act of 1996 ("AEDPA") was enacted, establishing a one-year limita-
tion period within which to file any federal habeas corpus petition.
2

-- 2 of 10 --

See 28 U.S.C. § 2244(d). The statute excludes from the one-year
period the time a petitioner spends in pursuit of state post-conviction
relief. See 28 U.S.C. § 2244(d)(2).
On March 12, 1997, ten-and-one-half months after the enactment
of the AEDPA, Harris filed a petition for state post-conviction relief.
The petition was denied, and on January 7, 1998, the Maryland Court
of Special Appeals denied Harris' application for leave to appeal the
denial, thus concluding his state post-conviction proceedings.
When counsel for Harris learned of the state court's final decision
on Harris' petition for post-conviction relief, counsel wrote Harris a
letter, dated January 12, 1998, advising him:
The next (and last) step is to go into federal court by way
of a federal habeas Petition. You have one year from Janu-
ary 7, 1998 [the date the state post-conviction proceedings
concluded], or up to and including January 6, 1999, to go
into federal court.
Harris filed his federal habeas petition in this case on July 22,
1998. The district court dismissed the petition as time-barred, apply-
ing the AEDPA's one-year statute of limitations. This appeal fol-
lowed.
II
Although Harris acknowledges that the time for filing his federal
habeas petition is governed by the one-year statute of limitations
imposed by the AEDPA, 28 U.S.C. § 2244(d), he argues that the one-
year period does not commence until the conclusion of state post-
conviction proceedings. Because his state post-conviction proceed-
ings were not completed until January 7, 1998, Harris maintains that
the filing of his federal habeas petition on July 22, 1998, less than
eight months later, was timely. To support his interpretation of 28
U.S.C. § 2244(d), Harris relies on two district court cases: Valentine
v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 1997) (holding that
the one-year period of limitations imposed by § 2244(d) "does not
begin to run until after direct review has been completed and state
3

-- 3 of 10 --

post-conviction review has been exhausted"), and Martin v. Jones,
969 F. Supp. 1058, 1061 (M.D. Tenn. 1997) (restating the holding of
Valentine).
The State of Maryland argues that the clear language of 28 U.S.C.
§ 2244(d) provides that the one-year period begins with the conclu-
sion of direct review of Harris' judgment of conviction. Because his
direct review was completed in 1992, before enactment of § 2244(d),
the State argues that the one-year period began on April 24, 1996, the
date on which the AEDPA was signed into law.
The AEDPA's one-year statute of limitations, codified in 28 U.S.C.
§ 2244(d), reads in pertinent part:
(1) A 1-year period of limitation shall apply to an applica-
tion for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limita-
tion period shall run from the latest of --
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review.
* * *
(2) The 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
shall not be counted toward any period of limitation
under this subsection.
Thus, the statute provides in no uncertain terms that the one-year
period within which a federal habeas petition must be filed begins at
"the conclusion of direct review" of the judgment of conviction. 28
U.S.C. § 2244(d)(1)(A) (emphasis added). It adds, however, that the
running of this period is suspended for the time that a state post-
conviction proceeding "is pending." 28 U.S.C.§ 2244(d)(2). We have
construed a state post-conviction proceeding to include all state-court
4

-- 4 of 10 --

proceedings "from initial filing [in the trial court] to final disposition
by the highest state court." Taylor v. Lee , 186 F.3d 557, 561 (4th Cir.
1999). Upon final disposition of the state post-conviction proceeding,
the running of the § 2244(d) one-year period resumes.
In short, the AEDPA provides that upon conclusion of direct
review of a judgment of conviction, the one-year period within which
to file a federal habeas petition commences, but the running of the
period is suspended for the period when state post-conviction pro-
ceedings are pending in any state court. Every circuit court that has
construed 28 U.S.C. § 2244(d) has interpreted it in this way. See
Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (per curiam);
Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); Calderon v.
United States Dist. Court for the Cent. Dist. of Cal. (Beeler), 128 F.3d
1283, 1286-87 (9th Cir. 1997).
In this case, the time for seeking direct review of Harris' state-court
conviction was concluded on July 23, 1992, when the period for filing
a petition for a writ of certiorari in the United States Supreme Court
expired.1 See, e.g., Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir.
1999). Because this conviction became final before the enactment of
the AEDPA in 1996, the one-year limitation period imposed by the
Act began to run on April 24, 1996, the effective date of the Act. See
Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998). Thus, for Har-
ris, the one-year limitation period imposed by § 2244(d) commenced
on April 24, 1996. Ten-and-one-half months later, on March 12,
1997, Harris filed his petition for state post-conviction review, which
suspended the running of the one-year limitation period. This petition
remained "pending" in state courts until January 7, 1998, when the
Maryland Court of Appeals denied Harris' application for leave to
appeal the denial of his petition. At this point, the clock began run-
ning again on the one-year limitation period, expiring one-and-one-
_________________________________________________________________
1 Although the Maryland Court of Appeals denied Harris' petition for
a writ of certiorari on April 24, 1992, the AEDPA provides that the one-
year period does not commence until the latest of the date when judg-
ment on direct review "became final" or "the expiration of the time for
seeking such review." 28 U.S.C. § 2244(d)(1)(A). The time for filing a
petition for a writ of certiorari in the United States Supreme Court is 90
days and therefore expired July 23, 1992. See Sup. Ct. R. 13(1).
5

-- 5 of 10 --

half months later, in February 1998. Harris did not file his federal
habeas petition until July 22, 1998, six months after his one-year
period had expired. Therefore, the petition was time-barred under 28
U.S.C. § 2244(d).
III
Harris argues that even if we disagree with his interpretation of 28
U.S.C. § 2244(d), the time restriction imposed by that statute is not
a jurisdictional bar, but rather a statute of limitations, and that the
principles of equitable tolling therefore may be applied. He argues
further that equitable tolling should be applied in this case because he
relied on the "negligent and erroneous advice" of his counsel who
"misadvis[ed]" him of the deadline for filing this habeas petition and
because precedent at the time counsel gave him the advice was not
"clear." Counsel for Harris concedes that he gave Harris the erroneous
advice, citing a claimed lack of clarity in existing precedent at the
time. Before addressing whether Harris has presented circumstances
sufficient to justify equitable tolling, we must first address whether 28
U.S.C. § 2244(d) is subject to equitable tolling.
A
As a general matter, principles of equitable tolling may, in the
proper circumstances, apply to excuse a plaintiff's failure to comply
with the strict requirements of a statute of limitations. See English v.
Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987); Vance v.
Whirlpool Corp., 716 F.2d 1010, 1011-12 (4th Cir. 1983). But these
principles may not apply to overcome a jurisdictional bar, where strict
satisfaction of a time limit may be required as a precondition to juris-
diction over a matter. See, e.g., Shah v. Hutto, 722 F.2d 1167, 1167
(4th Cir. 1983) (en banc) (dismissing appeal as untimely because the
30-day limit of Fed. R. App. P. 4(a)(1) is "mandatory and jurisdic-
tional"). We have referred to the time restriction in 28 U.S.C.
§ 2244(d) as a statute of limitations. See Brown v. Angelone, 150 F.3d
370, 371, 372 (4th Cir. 1998). And other circuits have reached the
same conclusion. See Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.
1998); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616,
617-18 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998); Calderon v. United States Dist. Court for the Cent. Dist. of
6

-- 6 of 10 --

Cal. (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997). This conclu-
sion is supported by both the language of the AEDPA itself -- the
limitations provisions do "not speak in jurisdictional terms or refer in
any way to the jurisdiction of the district courts," Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394 (1982) (analyzing provision
in Title VII that specifies time for filing charges with EEOC) -- and
by its legislative history, which reveals an intent to create a statute of
limitations, not a jurisdictional bar, see Miller v. New Jersey State
Dep't of Corrections, 145 F.3d at 618 (providing analysis); Calderon
(Beeler), 128 F.3d at 1288 (same).
The State of Maryland contends that § 2244(d), even if viewed as
a statute of limitations, should not be subject to equitable tolling
because "equitable tolling is not permissible where it is inconsistent
with the text of the relevant statute." United States v. Beggerly, 524
U.S. 38, 48 (1998) (holding that the limitation period of the Quiet
Title Act is not subject to equitable tolling); see also United States v.
Brockamp, 519 U.S. 347, 352-54 (1997) (holding that equitable toll-
ing does not apply to the time limitations contained in § 6511 of the
Internal Revenue Code). The statutes at issue in Beggerly and Brock-
amp, however, served policy interests that would be adversely
affected if the statutory limitations provisions were not strictly
adhered to, a factor that is not present here, where the policy of the
statute was to curb the abuse of the writ of habeas corpus, while pre-
serving its availability. See Calderon (Beeler) , 128 F.3d at 1288 n.4
("Brockamp relied heavily on the fact that in administering a tax sys-
tem, it is sometimes necessary `to pay the price of occasional unfair-
ness in individual cases . . . in order to maintain a workable regime.'
While such `occasional' injustices may be a necessary price of tax
administration, they are decidedly not an acceptable cost of doing
business in death penalty cases" (citation omitted)).
The State argues further that the inclusion of subparts (B), (C), and
(D) in § 2244(d)(1), as well as the inclusion of § 2244(d)(2), provid-
ing explicit exceptions to the strict limitations period of the statute,
indicates that Congress did not intend the statute to have other excep-
tions.2 This argument, however, reads too much into any negative
_________________________________________________________________
2 Section 2244(d)(1) provides that the one-year limitation period will
not begin to run before
7

-- 7 of 10 --

inference that may reasonably be drawn from the exceptions. The
exceptions in § 2244(d)(1)(B)-(D) simply make the writ available to
address later arising circumstances, while the exception in
§ 2244(d)(2) ensures that state post-conviction review will be allowed
to proceed on course. Without these exceptions, a petitioner could
inappropriately be denied the writ altogether, "risking injury to an
important interest in human liberty." Lonchar v. Thomas, 517 U.S.
314, 324 (1996). The inclusion of these statutory provisions does not
give rise to the inference that the application of the limitation period
must otherwise be absolute, as might be the case if the period were
jurisdictional. We therefore conclude that § 2244(d) is subject to equi-
table tolling, at least in principle.
This conclusion is consistent with the decisions of other circuit
courts that have addressed the issue. See Calderon v. United States
Dist. Court for the Cent. Dist. of Cal. (Kelly), 163 F.3d 530, 535 (9th
Cir. 1998) (en banc); Davis, 158 F.3d at 811; Miller v. New Jersey
State Dep't of Corrections, 145 F.3d at 618; Miller v. Marr, 141 F.3d
at 978; Calderon (Beeler), 128 F.3d at 1288-89; see also Taliani v.
Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (concluding that "the
judge-made doctrine of equitable tolling is available, in principle at
least" although "it is unclear what room remains for importing the
judge-made doctrine," given the express tolling provisions of the stat-
ute); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir.
_________________________________________________________________
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C) the date on which the constitutional right asserted was ini-
tially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exer-
cise of due diligence.
Section 2244(d)(2), as discussed above, tolls the limitation period during
the pendency of State post-conviction proceedings.
8

-- 8 of 10 --

1999) (per curiam) (finding that § 2255 permits equitable tolling,
relying on analyses of other circuits in cases construing § 2244); cf.
Libby v. Magnusson, 177 F.3d 43, 48 n.2 (1st Cir. 1999) (reserving
the question whether equitable tolling might apply).
B
We now turn to whether equitable tolling is appropriate in the case
before us.
"As a discretionary doctrine that turns on the facts and circum-
stances of a particular case, equitable tolling does not lend itself to
bright-line rules." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.
1999). The doctrine has been applied in "two generally distinct kinds
of situations. In the first, the plaintiffs were prevented from asserting
their claims by some kind of wrongful conduct on the part of the
defendant. In the second, extraordinary circumstances beyond plain-
tiffs' control made it impossible to file the claims on time." Alvarez-
Machain v. United States, 107 F.3d 696, 709 (9th Cir. 1996) (citation
omitted). But any invocation of equity to relieve the strict application
of a statute of limitations must be guarded and infrequent, lest circum-
stances of individualized hardship supplant the rules of clearly drafted
statutes. To apply equity generously would loose the rule of law to
whims about the adequacy of excuses, divergent responses to claims
of hardship, and subjective notions of fair accommodation. We
believe, therefore, that any resort to equity must be reserved for those
rare instances where -- due to circumstances external to the party's
own conduct -- it would be unconscionable to enforce the limitation
period against the party and gross injustice would result.
There is no allegation in this case that the State of Maryland con-
tributed in any way to Harris' delay in filing his petition. Therefore,
to invoke equitable tolling, Harris must be able to point to some other
extraordinary circumstance beyond his control that prevented him
from complying with the statutory time limit. See Calderon (Beeler),
128 F.3d at 1288-89 (noting that the limitation period of § 2244(d)(1)
may be tolled "if `extraordinary circumstances' beyond a prisoner's
control make it impossible to file a petition on time" (citation omit-
ted)); Miller v. New Jersey State Dep't of Corrections, 145 F.3d at
618-19 (noting that tolling is proper where "the petitioner has in some
9

-- 9 of 10 --

extraordinary way . . . been prevented from asserting his or her
rights," despite exercising "reasonable diligence in investigating and
bringing [the] claims" (citations and internal quotation marks omit-
ted)).
Harris argues that equitable considerations justify tolling in his
case because the missed deadline was the result of an innocent mis-
reading of the statutory provision by his counsel. While we agree that
the mistake by Harris' counsel appears to have been innocent, we can-
not say that the lawyer's mistake in interpreting a statutory provision
constitutes that "extraordinary circumstance" external to Harris that
would justify equitable tolling. See Taliani, 189 F.3d at 598 (holding
that a lawyer's miscalculation of a limitations period is not a valid
basis for equitable tolling); see also Sandvik , 177 F.3d at 1272 (refus-
ing to toll the limitations period where the prisoner's delay was
assertedly the result of a lawyer's decision to mail the petition by
ordinary mail rather than to use some form of expedited delivery);
Fisher, 174 F.3d at 714-15 (refusing to toll limitation where access
to legal materials that would have given notice of the limitations
period was delayed); Miller v. Marr, 141 F.3d at 978 (same); Gilbert
v. Secretary of Health and Human Services, 51 F.3d 254, 257 (Fed.
Cir. 1995) (holding that a lawyer's mistake is not a valid basis for
equitable tolling); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473,
478 (5th Cir. 1991) (refusing to apply equitable tolling where the
delay in filing was the result of a plaintiff's unfamiliarity with the
legal process or his lack of legal representation). Moreover, the mis-
take in this case is not extenuated by any lack of clarity in the statute.
The language of § 2244(d) provides unambiguously that the one-year
period within which a federal habeas petition must be filed com-
mences on the "conclusion of direct review." This language does not
contribute to a misunderstanding that would have the time commence
on the "conclusion of State post-conviction proceedings."
In short, a mistake by a party's counsel in interpreting a statute of
limitations does not present the extraordinary circumstance beyond
the party's control where equity should step in to give the party the
benefit of his erroneous understanding.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
10

-- 10 of 10 --