Everett Walker v. DAVID SMITH, Warden

*The Hono rable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0049P (6th Cir.)
File Name: 04a0049p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EVERETT WALKER,
Petitioner-Appellant,
v.
DAVID SMITH, Warden,
Respondent-Appellee.
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No. 03-1611
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-73007—Robert H. Cleland, District Judge.
Submitted: January 29, 2004
Decided and Filed: February 13, 2004
Before: MARTIN and MOORE, Circuit Judges; WEBER,
District Judge.*
_________________
COUNSEL
ON BRIEF: Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, HABEAS CORPUS DIVISION,
2 Walker v. Smith No. 03-1611
Lansing, Michigan, for Appellee. Everett Walker, New
Haven, Michigan, pro se.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Everett Walker,
a Michigan state prisoner proceeding without the benefit of
counsel, appeals the district court’s dismissal of his habeas
petition as untimely filed under 28 U.S.C. § 2244(d). This
case was referred to a panel of this Court pursuant to Rule
34(j)(1) of the Rules of the Sixth Circuit. Upon examination,
this panel unanimously agrees that oral argument is not
needed. FED. R. APP. P. 34(a).
In May 1991, a jury found Walker guilty of assault with
intent to commit murder. Accordingly, Walker was sentenced
to a twenty to forty year term of imprisonment, which was to
run consecutively to a sentence that he was serving at the time
of the instant offense. The Michigan Court of Appeals
affirmed Walker’s conviction on October 21, 1994, and the
Michigan Supreme Court denied Walker’s application for
leave to appeal on May 30, 1995.
On May 18, 2000, Walker filed a motion for post-
conviction relief from judgment alleging, among other things,
that his sentence was invalid because it was based upon
inaccurate findings in a court-ordered psychiatric report that
he was unable to refute because the sentencing court failed to
disclose its content prior to sentencing. The motion was
denied on August 23, 2000, and the Michigan Court of
Appeals denied leave to appeal pursuant to Michigan Court
Rule 6.508(D). On May 31, 2002, the Michigan Supreme
Court likewise denied Walker’s application for leave to
appeal.

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No. 03-1611 Walker v. Smith 3
On June 5, 2002, Walker petitioned for habeas corpus relief
to the United States District Court for the Eastern District of
Michigan. Walker’s petition alleged: (1) that his sentence
was invalid because it was based upon erroneous information
contained in the court-ordered psychiatric report; (2) he was
entitled to resentencing because the trial court failed to
disclose the psychiatric report; (3) that by not disclosing the
psychiatric report, the trial court violated his right to
allocution; (4) that he should be resentenced by a different
judge; and (5) that his motion for relief satisfied the “good
cause and actual prejudice” requirements of Michigan Court
Rule 6.508(D).
On April 18, 2003, the district court held, pursuant to
28 U.S.C. § 2244(d), that Walker’s habeas corpus petition
was untimely filed. Thereafter, Walker filed a motion for
reconsideration and a request for a certificate of appealability.
On June 11, 2003, the district court denied the motion for
reconsideration, but issued a certificate of appealability on the
following issue: “Whether [Walker’s] habeas petition was
barred from substantive review pursuant to the statute of
limitations, 28 U.S.C. 2244(d).”
On appeal, Walker argues that the district court erred in
finding his habeas corpus petition untimely, because he was
entitled to tolling under 28 U.S.C. § 2244(d). We review de
novo a district court’s determination that a habeas corpus
petition was untimely filed. Cook v. Stegall, 295 F.3d 517,
519 (6th Cir. 2002). Because Walker’s habeas corpus petition
was filed after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996, our review is governed
by the Act. Mason v. Mitchell, 320 F.3d 604, 613 (6th Cir.
2003). Upon review, we find that the district court erred in
finding Walker’s habeas corpus petition untimely.
Under the Antiterrorism and Effective Death Penalty Act,
a state prisoner has one year from the conclusion of the
prisoner’s state proceedings in which to file a petition for
habeas corpus relief. Cook, 295 F.3d at 519; 28 U.S.C.
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§ 2244(d)(1). Prisoners whose state appeals concluded by
direct review prior to the effective date of the Act are afforded
a one-year grace period–until April 24, 1997–in which to file
for federal habeas relief. Id. However, “[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 shall not be counted toward any period of
limitations under this subsection.” 28 U.S.C. § 2244(d)(2).
Properly construed, Walker challenges the district court’s
conclusion that he failed to “properly file” a motion for post-
conviction relief for purposes of tolling under section
2244(d)(2). Walker alleged that he filed a motion for post-
conviction relief to correct his sentence twice in 1995 and
once in 1996, but his motion never appeared on the court’s
docket sheets. However, Walker’s exhibits demonstrate that
one of his 1995 motions was stamped as received by the state
court on August 2, 1995. Warden Smith argued, and
apparently the district court agreed, that because this motion
never appeared on the state court’s docket sheets, Walker
could not prove that it was filed, much less “properly filed”
for section 2244(d)(2) purposes. We find this argument
unsupported by the record.
“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. And an application is ‘properly filed’ when its
delivery and acceptance are in compliance with the applicable
laws and rules governing filings.” Artuz v. Bennett, 531 U.S.
4, 8 (2000). Although the state court’s docket sheet does not
reflect that Walker filed a motion for post-conviction relief in
1995, we do not find this fact determinative in this case.
Although the motion does not appear on the state court
docket sheet, the record demonstrates that Walker did
properly file a motion for post-conviction relief in 1995,
because the state court decided the merits of that motion on
March 28, 2003. The district court found that the state court’s

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No. 03-1611 Walker v. Smith 5
1Although not argued by Smith, we do not find the fact that Walker
filed a “M otio n to W ithdraw The M otion To Correct Sentenc e,”
determinative of our decision for two reasons. J.A. 403. First, we see no
evidence in the record to suggest that the state court ruled on this motion.
Second , though not artfully pleaded, we interpret this motion not as an
attempt to actually have the state court withdraw said motion, but rather
we find that the intent of this motion was either to change the title of the
original motio n to confo rm with the state court’s modifica tion of it or to
March 28, 2003, order must have addressed the merits of
“some motion other that [Walker’s] motions to correct [his]
sentence,” because it was titled a “motion for relief for
judgment.” We conclude otherwise.
The record illustrates that on February 4, 2003, the state
court ordered the prosecution to respond to Walker’s “motion
for relief from judgment.” The state docket sheet, however,
does not demonstrate that there was an outstanding motion
before the court. On March 18, 2003, the state prosecution
responded to the court’s order and filed an “Answer in
Opposition to Defendant’s Motion for Relief From
Judgment.” Although the state prosecution titled its response
as a response to Walker’s motion for relief from judgment it
becomes clear upon comparison that the state prosecution was
responding to Walker’s motion to correct his sentence.
Indeed, the arguments that Walker made in his motion to
correct his sentence paralleled the arguments that the state
prosecution asserted to defeat Walker’s “motion for relief
from judgment.” Thus, we find that although the state court
changed the title of Walker’s motion to a motion for relief
from judgment, its March 28, 2003, order actually decided
Walker’s motion to correct his sentence. Our determination
that the state court decided Walker’s motion to correct his
sentence compels the conclusion that Walker “properly filed”
a motion for post-conviction relief under 28 U.S.C. § 2244(d).
Indeed, it would be dubious to suggest that Walker never
properly filed a motion for post-conviction relief when the
state court actually decided, albeit belatedly, the merits of that
motion.1
6 Walker v. Smith No. 03-1611
notify the court of its own mistake in titling the motion. We believe that
our interpretation is in perfect accord with the intention of W alker, a
prisoner proceeding without the benefit of co unsel.
Notably, no party has addressed the fact that Walker’s
motion to correct his sentence raised only state law based
grounds for relief. Given the parties’ silence, we do not
address the implication of this fact on the tolling provisions
of the Antiterrorism and Effective Death Penalty Act, see
Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999); but see
Cowherd v. Million, 80 Fed. Appx. 415 (6th Cir. 2003),
vacated and reh’g en banc granted January 12, 2004, nor do
we address whether Warden Smith in failing to raise this
argument before the district court and our Court has now
waived the right to argue this issue.
Thus, for the foregoing reasons, we REVERSE the district
court’s decision that Walker never properly filed a motion for
post-conviction relief, and REMAND the case to the district
court for consideration of the record as a whole.

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