Chatha Tatum v. Dan Schnurr

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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CHATHA TATUM,
Petitioner - Appellant,
v.
DAN SCHNURR,
Respondent - Appellee.
No. 20-3188
(D.C. No. 5:19-CV-03228-SAC)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
This case involves a timeliness issue. The federal district court ruled
that Mr. Chatha Tatum’s habeas petition was barred by the one-year period
of limitations. See 28 U.S.C. § 2244(d). The court considered the statutory
tolling provision, which excludes the time in which a properly filed post-
conviction application has been pending. 28 U.S.C. § 2244(d)(2). But even
* Oral argument would not help us decide the appeal, so we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
September 15, 2021
Christopher M. Wolpert
Clerk of Court
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with exclusion of that time, the court concluded that Mr. Tatum had waited
too long to seek federal habeas relief.
Timeliness turns on the prison mailbox rule. Under this rule, a
prisoner’s pro se documents are deemed “filed” when they are submitted to
prison officials for mailing. See Wahl v. State, 344 P.3d 385, 388 (Kan.
2015). Invoking this rule, Mr. Tatum argued that he had filed his second
state post-conviction motion on the day that he had allegedly given the
motion to prison officials for mailing. The district court disagreed,
concluding that Mr. Tatum had not filed his second state post-conviction
motion until the date that he signed the certificate of service on a related
motion (his motion to proceed in forma pauperis). This conclusion led the
court to regard the federal habeas petition as untimely.
On appeal, Mr. Tatum argues that the federal district court erred by
rejecting his argument for an earlier filing date. We agree with Mr. Tatum,
reverse the district court’s decision, and remand for further proceedings.
1. The federal district court dismissed Mr. Tatum’s habeas petition
as time-barred.
In state court, Mr. Tatum was convicted of first-degree murder and
attempted murder. The Kansas Supreme Court affirmed. See State v. Tatum,
135 P.3d 1088 (Kan. 2006). Mr. Tatum then filed two post-conviction
motions in state court. When these motions failed, he filed a federal habeas
petition on November 1, 2019.
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The respondent’s argument. In federal district court, the respondent
argued that Mr. Tatum’s habeas petition was barred by the one-year
limitations period. For this argument, the respondent said that the
limitations period had started when Mr. Tatum’s convictions and sentence
had become final (the day after the deadline for filing a petition for
certiorari in the United States Supreme Court expired). When Mr. Tatum
filed a post-conviction motion 277 days later, the limitations period
stopped running. The state court proceedings ended roughly 8-1/2 years
later (February 18, 2016), when the Kansas Supreme Court denied review.
At that point, the limitations period ran 83 more days (until the court
clerk filed Mr. Tatum’s second post-conviction motion in a Kansas state
court on May 11, 2016). The state proceedings ended when the Kansas
Supreme Court denied review (September 27, 2019), and the limitations
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period again started to run. At that point, 360 days had run, leaving only
five more days on the one-year limitations period.
The fifth day fell on October 2, 2019, which is when the respondent
says that the limitations period ended. (Mr. Tatum did not give the federal
habeas petition to prison officials for mailing until almost a month later.)
Mr. Tatum’s argument. Mr. Tatum disagrees, arguing that the
tolling should have started when he submitted the second post-conviction
motion to prison officials—March 29, 2016—rather than May 11, 2016 (the
date that the clerk filed the document). Using March 29, 2016, as the filing
date, Mr. Tatum would have had until November 6, 2019, to seek habeas
relief (37 more days than he would have had under the respondent’s time-
table).
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The district court’s determination. The federal district court ruled
that Mr. Tatum’s habeas petition was time-barred. The court acknowledged
that (1) Mr. Tatum’s second post-conviction motion had been signed on
March 24, 2016, and (2) Mr. Tatum had stated that he delivered the second
post-conviction motion to prison officials on March 29, 2016. But the court
concluded that the second post-conviction motion hadn’t been filed on
March 29, 2016. For this conclusion, the court’s reasoning was two-fold:
1. Mr. Tatum hadn’t said on the certificate of service when it was
mailed.
2. The record was ambiguous.
The record showed a withdrawal for postage on March 29, 2016, but didn’t
say what Mr. Tatum was mailing.
Rather than use March 29, 2016, as the filing date, the court relied
on the date that Mr. Tatum had signed the certificate of service for his
motion to proceed in forma pauperis—April 19, 2016. With that as the
filing date, the habeas action was untimely:
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[T]he certificate of service for the motion to proceed in forma
pauperis is dated April 19, 2016. If the Court accepts that date
as the proof of mailing, it follows that sixty days ran on the
limitation period between February 19, 2016, and April 18,
2016, leaving twenty-eight days on the limitation period. Under
this scenario, the limitation period began to run again on
September 28, 2019, and expired on October 25, 2019.
R. at 115. 1
2. We conduct de novo review of the district court’s ruling.
On appeal, Mr. Tatum argues that the district court erred in applying
the tolling rules. Mr. Tatum urges application of the prison mailbox rule to
1 The district court later declined to reconsider this determination.
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deem his second post-conviction motion filed on March 24, 2016, the date
that he signed it. 2
We review de novo the dismissal of a habeas petition as untimely.
United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012). The
timeliness of a habeas petition is an affirmative defense, see Kilgore v.
Att’y Gen. of Colo., 519 F.3d 1084, 1086 (10th Cir. 2008), and “the burden
of proving all affirmative defenses rests on the defendant.” Roberts v.
Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). The parties’ arguments
about the tolling period and the prison mailbox rule require us to determine
when Mr. Tatum’s second state court post-conviction motion was “properly
filed.” See 28 U.S.C. § 2244(d)(2). This is a matter of state procedural law.
See Adams v. LeMaster, 223 F.3d 1177, 1181 (10th Cir. 2000).
3. We apply the prison mailbox rule, as construed by Kansas courts.
Kansas courts apply the prison mailbox rule. Wahl v. State, 344 P.3d
385, 388 (Kan. 2015). “This rule deems a prisoner’s pro se documents
‘filed’ when he or she submits them to prison authorities for mailing.” Id.
In determining this date of submission, Kansas courts consider the totality
of circumstances, including the dates that motions and certificates of
mailing have been signed and the dates that prisoners seek to withdraw
2 In district court, Mr. Tatum stated that he had given the petition to
prison officials on a different date: March 29, 2016. See R. at 100. Either
date (March 24 or 29, 2016) would extend the tolling period enough to
render his habeas petition timely filed.
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funds for postage. See, e.g., id. (concluding that the date of the prisoner’s
signature on the certificate of service controlled because “the State ha[d]
presented no evidence to controvert the validity of this date”); Logan v.
State, No. 122,215, 2020 WL 6108529, at *3 (Kan. Ct. App. Oct. 16, 2020)
(unpublished) (using the date a prisoner signed a motion); Waddell v.
State, No. 109,583, 2014 WL 3630218, at *6 (Kan. Ct. App. July 18, 2014)
(unpublished) (considering the date that the prisoner signed a motion and
affidavits and the date that he “had obtained an inmate account statement
showing what funds he had available”). Contrary to the respondent’s
suggestion here, the omission of a date on the certificate of service is not
necessarily dispositive.
When considering dismissal of a prisoner’s post-conviction motion as
untimely, Kansas courts require the state to make a conclusive showing.
For example, in Waddell v. State, the Kansas Court of Appeals observed
that “[n]either party [had] provide[d] any explanation for why these papers
would be held by [the prisoner] for several days after they were prepared
but not delivered to prison officials before the deadline.” 2014 WL
3630218, at *6. Because the record “strongly hint[ed]” that the papers had
been delivered to prison officials before the deadline, the Kansas Court of
Appeals concluded that the prisoner’s motion should have been considered
timely. Id.; see also Wahl, 344 P.3d at 388 (using the date of submission
urged by the prisoner—the certificate of service—because “the State ha[d]
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presented no evidence to controvert the validity of this date”); Rowell v.
State, 490 P.3d 78, 83 (Kan. Ct. App. 2021) (same).
4. The district court erred in applying the prison mailbox rule.
The last page of Mr. Tatum’s post-conviction motion contains his
signature and a handwritten date—March 24, 2016. See R. at 117. A
certificate of service appears on the same page. Id.
Despite the date of this signature, the district court pointed out that
the certificate of service wasn’t dated. But the omission of a date on the
certificate of service doesn’t shed light, one way or another, on when Mr.
Tatum gave the petition to prison authorities for mailing. He requested
withdrawal of money from his account to pay for postage. The request
bears two signatures: Mr. Tatum’s on March 24, 2016, the other by the
“Unit Team” on March 29, 2016. The form also contains a stamp stating
“Received March 30, 2016 HCF Mailroom” and a United States Postal
Service tracking number. Id.
Given the record as a whole, the State had not shown delivery to
prison authorities as late as April 19, 2016. Mr. Tatum apparently
delivered his second post-conviction motion to prison officials on
March 29 or 30, 2016 (at the latest). The certificate of service for the
motion for leave to proceed in forma pauperis is dated April 19, 2016, and
the district court apparently assumes that Mr. Tatum had submitted the in
forma pauperis motion and second post-conviction motion on the same
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day. But this assumption is questionable. Why would Mr. Tatum have done
everything required for his second post-conviction motion (signing and
obtaining postage) on March 29, 2016, then wait until April 19, 2016, to
deliver it to prison officials? See Waddell, 2014 WL 3630218, at *6. 3
The district court and the respondent observe that Mr. Tatum’s
request for a withdrawal does not identify a particular document to be
mailed. But the district court and the respondent give no reason to
conclude that this unspecified document was something other than the
second post-conviction motion. The form shows that Mr. Tatum presented a
document for mailing to the clerk, who ultimately filed the post-conviction
motion. There is no suggestion that Mr. Tatum had other litigation pending
in that court. So the respondent has not shown submission of his second
post-conviction motion later than March 30, 2016.
3 Mr. Tatum’s failure to give his in forma pauperis motion to prison
authorities when he gave them his post-conviction motion would not mean
that the post-conviction motion had not been properly filed:
[A] movant’s failure to pay the docket fee is not jurisdictional
nor does the movant’s failure to pay the docket fee require a
district court clerk to reject filing the movant’s [post-
conviction] motion. Besides, rather than holding a movant’s
motion until he or she has paid the docket fee, a district court
clerk should file the motion. This would allow the district court
judge to dismiss the action if the movant later fails to pay the
docket fee or fails to file a poverty affidavit.
Wilson v. State, 192 P.3d 1121, 1126 (Kan. Ct. App. 2008).
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5. We reverse the district court’s decision and remand for further
proceedings.
The respondent concedes that if Mr. Tatum had placed his second
post-conviction motion in the prison mail system on March 29, 2016, “his
federal habeas petition would have therefore been timely filed, with 47
days remaining.” Appellee’s Resp. Br. at 12–13. Proper application of the
prison mailbox rule shows that Mr. Tatum submitted his second post-
conviction motion to prison officials on March 30, 2016, at the latest. If
Mr. Tatum filed his second post-conviction motion on March 30, 2016,
triggering further tolling, Mr. Tatum’s federal habeas petition would not
have been time-barred. We thus reverse and remand for further
proceedings.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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