John C. Walkowiak v.  WILLIAM S. HAINES, Warden, Huttonsville Correctional Center

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOHN C. WALKOWIAK,
Petitioner-Appellant,
v. No. 00-7163 
WILLIAM S. HAINES, Warden,
Huttonsville Correctional Center,
Respondent-Appellee. 
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CA-99-139-1)
Argued: September 25, 2001
Decided: November 13, 2001
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams and Judge Gregory joined.
COUNSEL
ARGUED: William C. Garrett, Gassaway, West Virginia, for Appel-
lant. Dawn Ellen Warfield, Deputy Attorney General, Charleston,
West Virginia, for Appellee. ON BRIEF: Darrell V. McGraw, Jr.,
Attorney General, Charleston, West Virginia, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
John C. Walkowiak was convicted in West Virginia state court on
a series of charges arising out of an aggravated robbery. J.A. 9-14.
His conviction became final for purposes of 28 U.S.C.
§ 2244(d)(1)(A) of the Antiterrorism and Effective Death Penalty Act
(AEDPA), on September 2, 1997, and, on that date, the one-year stat-
ute of limitations governing Walkowiak’s filing of a federal habeas
corpus petition began to run. J.A. 13.
On September 25, 1997, Walkowiak filed a motion under West
Virginia Rule of Criminal Procedure 35(b) for "Correction or reduc-
tion of sentence." J.A. 18-21. His Rule 35(b) motion remained pend-
ing until February 13, 1998. J.A. 34-35.
Walkowiak thereafter filed a petition for federal habeas corpus on
July 23, 1999. The federal district court dismissed this petition as
untimely, holding that the statute of limitations in 28 U.S.C.
§ 2244(d)(2) was not tolled during the pendency of Walkowiak’s Rule
35(b) motion. From this judgment of dismissal, Walkowiak appeals.
We conclude that motions under West Virginia Rule 35(b) for
reduction of sentence do not constitute applications for "state post-
conviction or other collateral review" within the meaning of 28
U.S.C. § 2244(d)(2), during the pendency of which the AEDPA’s
one-year statute of limitations is tolled. Accordingly, we affirm.
I.
The straightforward issue presented for our consideration is
whether a motion under Rule 35(b) constitutes an application for
"State post-conviction or other collateral review" within the meaning
of section 2244(d)(2).* If it does, then the applicable one-year statute
*Rule 35 provides as follows:
(b) Reduction of Sentence. A motion to reduce a sentence may
be made, or the court may reduce a sentence without motion
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of limitations is tolled during the pendency of such motion; if it does
not, then the statute continues to run during the time that such a
motion is before the state court.
Section 2244(d)(2) provides in relevant part as follows:
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.
The phrase "State post-conviction or other collateral review" is not
defined within the AEDPA. However, under the plain language of
section 2244(d)(2) — "State post-conviction or other collateral
review" (emphasis added) — the applicable one-year statute of limita-
tions is tolled only for state collateral, post-conviction review. See
Duncan v. Walker, 121 S. Ct. 2120, 2127 (2001) (noting that "Con-
gress also may have employed the construction ‘post-conviction or
other collateral’ in recognition of the diverse terminology that differ-
ent States employ to represent the different forms of collateral review
that are available after a conviction") (emphasis added). This plain
language interpretation of the section gives meaning to each and
every word of the provision, which a reading of the statute to require
tolling during any form of review after conviction (collateral or other-
wise) would not.
The question before us therefore ultimately devolves into one of
whether a motion under West Virginia Rule of Criminal Procedure
within 120 days after the sentence is imposed or probation is
revoked, or within 120 days after the entry of a mandate by the
supreme court of appeals upon affirmance of a judgment of a
conviction or probation revocation or the entry of an order by the
supreme court of appeals dismissing or rejecting a petition for
appeal of a judgment of a conviction or probation revocation.
The court shall determine the motion within a reasonable time.
Changing a sentence from a sentence of incarceration to a grant
of probation shall constitute a permissible reduction of sentence
under this subdivision.
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35(b) constitutes an application for "collateral review." We conclude
that it does not.
II.
Generally, the term "collateral review" refers to a proceeding sepa-
rate and distinct from that in which the original judgment was ren-
dered, and in which the petitioner challenges the legality of the
original judgment. See Black’s Law Dictionary (7th ed., 1999) (defin-
ing collateral attack as "[a]n attack on a judgment entered in a differ-
ent proceeding. * A petition for a writ of habeas corpus is one type
of collateral attack"). A motion under West Virginia Rule of Criminal
Procedure 35(b) is neither, properly understood, a proceeding separate
and distinct from the proceeding in which the original judgment was
rendered, nor even a proceeding in which the legality of the original
judgment is attacked.
A.
Often, even if not always, collateral review is conducted at least by
a different judge, if not by a different court altogether, because it is
the judgment of the original forum that is drawn into question in the
collateral proceeding. Because a Rule 35(b) motion is heard by the
same court that sentenced the defendant and, further, as we explain
below, because the Rule does not address the preclusive effect of
prior proceedings, we are satisfied that proceedings under West Vir-
ginia Criminal Procedure Rule 35(b) are most appropriately under-
stood as part and parcel of the original proceeding in which the
defendant was sentenced, not as a separate proceeding.
Rule 35(b) quite obviously contemplates that the defendant return
to the same court, and plead for mercy before the same judge, that
imposed the original sentence. Upon motion, and in his discretion,
that same judge is authorized to modify the sentence before he "takes
leave of the case." United States v. DeCologero, 821 F.2d 39, 41 (1st
Cir. 1987) (cited in Head, 480 S.E.2d at 514-15 (Cleckley, J., concur-
ring)) (describing Federal Rule of Criminal Procedure 35(b), which,
at the time, was virtually identical to the current West Virginia Rule
35(b), as "operat[ing] as a final glance backward before the sentenc-
ing judge takes leave of the case") (emphasis added). This is precisely
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what occurred in the case now before us. Judge Cline sentenced Wal-
kowiak. Subsequently, Walkowiak filed his Rule 35(b) motion and
accompanying letters with Judge Cline. J.A. 24-25, J.A. 31-32. In
turn, Judge Cline modified Walkowiak’s sentence. J.A. 34-35.
The common-sense conclusion that such a proceeding is not sepa-
rate and distinct from that in which the original judgment was entered
(at least not for purposes of determining whether the proceeding is
"collateral"), but rather is most appropriately understood as one in the
same with the original proceeding in which the sentence was actually
imposed, is reinforced by the absence of any provision in the Rule
regarding the preclusive effect given to prior proceedings. Generally,
in collateral proceedings, provisions are made for the preclusion or
limitation of further review of at least some aspects of the prior judg-
ment. Rule 35(b) is silent on both the res judicata and collateral
estoppel effect to be afforded the original sentencing proceeding. The
reason for this silence appears obvious: The Rule 35(b) proceeding is,
in effect, part and parcel of the same proceeding in which the defen-
dant was sentenced.
B.
Just as a "collateral" proceeding typically connotes a proceeding
separate and distinct from an earlier proceeding, so also does it typi-
cally entail a challenge to the legality of the earlier proceeding or
judgment.
Not only does a motion under West Virginia Rule 35(b) not allege
that a legal error was committed by the court in which the original
sentence was imposed, such motion does not allege any error at all.
To the contrary, a Rule 35(b) motion is simply "a plea for leniency
from a presumptively valid conviction." West Virginia v. Head, 480
S.E.2d 507, 515 (1996) (Cleckley, J., concurring) (citing United
States v. Colvin, 644 F.2d 703, 705 (8th Cir. 1981)) (emphasis
added). The only issue before the court on a Rule 35(b) motion is
whether the defendant, although sentenced in conformity with appli-
cable laws, nevertheless presents some compelling non-legal justifica-
tion that warrants mercy. Claims of legal error, by contrast, are
brought by motion under West Virginia Rule 35(a) ("The court may
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correct an illegal sentence . . . .") or under habeas statute, not under
Rule 35(b).
Fully consistent with this understanding that a petitioner does not
assign errors of law in a motion filed under Rule 35(b), Walkowiak
did not seek relief under law in his Rule 35(b) motion. He sought,
instead, as envisioned by the Rule, mercy from the court, on the basis
of a variety of asserted mitigating circumstances. See Motion to
Reduce Sentence, J.A. 18-21 (listing the following as grounds to
modify the sentence: "The Defendant has No Prior Criminal History,"
"The Defendant Has Dependents to Support," "The Defendant has a
Strong Work History," "The Defendant is Educated," "The Defendant
is in Excellent Physical Condition," "The Defendant’s Family and
Friends," "Incarceration Has Changed the Defendant," "The Defen-
dant is Responsible"). Walkowiak did not "attack" his sentence —
legally or otherwise — much less present arguments, which, if meri-
torious, would require sentence modification as a matter of law. Wal-
kowiak simply appealed to the court’s sense of compassion, as
provided for by Rule 35(b). J.A. 19-20 (reciting that "[t]he defendant
is needed to support his fiancee, child, mother and sister"; "[t]he
defendant has strong family ties and is sorely missed by his family
and friends").
C.
A contrast of West Virginia Rule 35(b) with two proceedings that
we know entail collateral review, Fla. R. Crim. P. 3.850 (a statute that
the Supreme Court in Duncan v. Walker, 121 S. Ct. 2120, 2127
(2001), described as providing post-conviction collateral review) and
W. Va. Code § 53-4A-1 (habeas corpus statute), while not alone dis-
positive, only confirms our conclusion that a proceeding pursuant to
Rule 35(b) is not "collateral" in nature.
In contrast to proceedings under Rule 35(b), proceedings under
West Virginia’s habeas statute are unmistakably separate and distinct
from the original criminal proceeding in which the defendant was
convicted and sentenced. First, as the habeas statute provides, "[a]ll
proceedings in accordance with this article shall be civil in character
and shall under no circumstances be regarded as criminal proceed-
ings or a criminal case." W. Va. Code § 53-4A-1(a) (emphasis
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added). Second, further reinforcing the conclusion as to their sepa-
rateness from the original proceeding of conviction and sentence,
under West Virginia law habeas petitions may be filed in any of the
courts throughout the state, id., rather than exclusively in the court
that sentenced the defendant. Third, provision is made in the West
Virginia habeas statute for preclusion regarding prior proceedings. W.
Va. Code § 53-4A-1(b) (collateral estoppel); W. Va. Code § 53-4A-
1(c) (res judicata). Finally, and significantly, in stark contrast to Rule
35(b), West Virginia’s habeas statute clearly provides for legal chal-
lenges to the original judgment. See W. Va. Code § 53-4A-1(a) (list-
ing jurisdictional objections, claims asserting that judgment violated
federal or state laws, that sentence exceed statutory maximum, and
other collateral claims, as grounds for a motion).
Similarly to West Virginia’s habeas statute, and also quite unlike
proceedings under West Virginia Rule of Criminal Procedure 35(b),
Florida law likewise provides both for preclusion regarding prior pro-
ceedings and for legal challenges to the original judgment of convic-
tion and sentence, features typically associated with collateral
proceedings. See Fla. R. Crim. P. 3.850(a), (e) (listing categories of
claims that may or may not be raised); Fla. R. Crim. P. 3.850(a) (set-
ting forth legal grounds upon which prior judgment may be chal-
lenged).
CONCLUSION
Because the consideration of a motion under West Virginia Crimi-
nal Procedure Rule 35(b) is part and parcel of the original proceeding
in which the defendant was sentenced and does not entail a legal chal-
lenge to the original sentence, we hold that such a proceeding is not
"collateral" within the meaning of section 2244(d)(2) and therefore
that the one-year statute of limitations period of that provision is not
tolled during the pendency of such proceeding. Accordingly, Wal-
kowiak’s federal habeas petition was properly dismissed by the dis-
trict court as untimely.
The judgment of the district court is affirmed.
AFFIRMED
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