Submitted: January 12, 2017
from United States District Court for the Western District of
Arkansas - El Dorado
COLLOTON, GRUENDER, and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Coulter was convicted of murder in Arkansas and sentenced to
death. He petitioned for a writ of habeas corpus under 28
U.S.C. § 2254, challenging the conviction and sentence.
The district court dismissed Coulter's petition as
the federal Antiterrorism and Effective Death Penalty Act of
1996, a state prisoner has one year from the latest of four
dates to file a habeas petition. 28 U.S.C. § 2244(d)(1).
The one-year period is tolled during the time in which
"a properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment . . . is pending." Id. §
raises three issues on appeal. First, he contends that the
district court erred in considering the State's
statute-of-limitations defense at all. He contends that the
State waived the defense by failing to raise it or,
alternatively, that the interests of justice required the
district court to forego addressing the defense. Second,
Coulter argues that the district court either applied the
incorrect provision to measure the one-year period under
§ 2244(d)(1) or failed to account for time when the
period was tolled. Finally, he asserts that the district
court erred in refusing to rule that the limitations period
was equitably tolled. We conclude that these contentions lack
merit, so we affirm the judgment.
1989, a jury convicted Coulter in the Ashley County Circuit
Court of capital murder for the rape and murder of a
five-year-old girl and sentenced Coulter to death by lethal
injection. In 1991, the Arkansas Supreme Court affirmed the
conviction, and the Supreme Court denied certiorari.
Coulter v. State, 804 S.W.2d 348 (Ark.), cert.
denied, 502 U.S. 829 (1991).
December 1991, Coulter sought state post-conviction relief.
Almost eight years later, on October 8, 1999, the circuit
court denied Coulter's petition. The circuit court mailed
a copy of the judgment to Coulter's attorney, but sent it
to an old address. On October 21, the clerk of court received
the judgment in return mail; it was marked as
"undeliverable as addressed-forwarding order
expired." The record shows no additional attempts by the
circuit court to notify Coulter's attorney of the denial
of post-conviction relief. Under Arkansas Criminal Rule of
Appellate Procedure 2(a)(4), Coulter had until November 8,
1999, thirty days after entry of the circuit court's
judgment, to file a notice of appeal. See also Ark.
R. App. P. Crim. 17.
January 25, 2000, over two months after the appeal deadline
had expired, the Arkansas Attorney General's office
contacted Coulter's attorney and notified him that
Coulter's request for post-conviction relief had been
denied. That day, Coulter's attorney filed a notice of
appeal with the Arkansas Supreme Court. On February 22,
Coulter's attorney filed a motion for belated appeal
under Arkansas Criminal Rule of Appellate Procedure 2(e). The
Arkansas Supreme Court granted the motion on March 30 and
considered the appeal. The state supreme court eventually
affirmed the denial of Coulter's request for
post-conviction relief and issued its mandate on December 19,
October 1, 2001, Coulter filed his petition for habeas corpus
in the district court. The district court permitted Coulter
to amend his petition twice, in September 2003 and January
2007, to include additional challenges to his conviction. In
September 2009, the district court issued an order observing
that the State had raised several "threshold
matters" for consideration, including at least one of
the following matters-the statute of limitations, procedural
default, and exhaustion of state remedies-on each of
Coulter's alleged grounds for relief. The court
established a briefing schedule for the parties to address
all statute-of-limitations arguments and procedural defenses.
State then filed a "First Amended Response to
Petitioner's Second Amended Petition." In its
response, the State stated that it interpreted the
court's September order as granting the State leave to
amend its responsive pleading. Alternatively, the State
sought the court's leave to amend its pleading under
Federal Rule of Civil Procedure 15(a)(2). In the amended
response, the State asserted that Coulter's
original petition was untimely because it was filed
after AEDPA's one-year statute of limitations had
expired. See 28 U.S.C. § 2244(d). The court
held an evidentiary hearing on the limitations and procedural
matters, and the parties filed post-hearing briefs. Coulter
argued that the State had waived its statute-of-limitations
defense or that the court should decline to address the
defense. Alternatively, he urged that his petition was timely
under AEDPA's statutory tolling rules or that the time
limit should be equitably tolled.
order, the district court first addressed the State's
motion to amend its response under Rule 15(a)(2) and declined
to accept the amended response based on the court's
briefing order. The court noted that Rule 15 provides that
leave to amend is to be freely granted when justice so
requires. The court concluded that the State's motion to
amend its response to Coulter's second amended petition
was not filed in bad faith, with dilatory motive, or with
undue delay, noting that the parties had been actively
litigating the procedural defenses and statute-of-limitations
arguments since Coulter filed his Second Amended Petition in
January 2007. The court also determined that allowing the
State to amend its response would not unduly prejudice
Coulter, because Coulter had the opportunity to raise his
arguments in two rounds of briefing and to present evidence
at a hearing. Finally, the district court observed that it
had permitted Coulter to amend his petition twice. The court
stated that Coulter failed to present any reason why the
State "should not enjoy the same consideration and
application in the interest of justice." Accordingly,
the court granted the State's motion to amend.
district court then addressed the statute-of-limitations
argument and dismissed Coulter's petition as untimely. In
concluding that the petition was untimely, the court reasoned
as follows: Under AEDPA, Coulter's limitations period was
tolled while his state post-conviction proceedings were
pending in the Ashley County Circuit Court. The limitations
period began to run after the time for filing an appeal
expired on November 8, 1999. The limitations period ran for
106 days until Coulter filed his motion for belated appeal on
February 22, 2000. The limitations period was then tolled
until December 19, 2000, when the Arkansas Supreme Court
issued its mandate affirming the denial of Coulter's
post-conviction relief. Coulter filed his federal habeas
petition 286 days later, on October 1, 2001.
district court determined that a total of 392 untolled days
elapsed before Coulter filed his petition, so with a
limitations period of 365 days, his petition was twenty-seven
days late. The court also denied Coulter's request for
equitable tolling, because he failed to show that he was
reasonably diligent in pursuing his rights. The court then
denied Coulter's post-judgment motions, but granted a
certificate of appealability "with respect to whether
the original and all subsequent petitions are time barred by
the AEDPA one year statute of limitations and whether
[Coulter] is entitled to equitable tolling."
consider first whether the district court abused its
discretion by considering a statute-of-limitations defense.
Coulter argues that the State waived this defense because it
repeatedly engaged the merits of Coulter's petition,
failed to argue that the original petition was untimely in
its responsive pleadings, asserted in previous court filings
that Coulter's petition was timely, and waited several
years to raise the limitations defense. Alternatively,
Coulter contends that the interests of justice are best
served by addressing the merits of his petition. We review
the district court's decision for abuse of discretion.
Hammer v. City of Osage Beach, 318 F.3d 832, 844
(8th Cir. 2003); see Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 330-32 (1971).
requires the "intentional relinquishment or abandonment
of a known right." Wood v. Milyard, 566 U.S.
463, 474 (2012) (quoting Kontrick v. Ryan, 540 U.S.
443, 458 n.13 (2004)). In Wood, the Court determined
that a State waived a statute-of-limitations defense when it
said in the district court that "Respondents are not
challenging, but do not concede, the timeliness of the
petition." Id. at 467 (quotation omitted). The
Court observed that the State expressed a "clear and
accurate understanding of the timeliness issue" and
"deliberately steered the District Court away from the
question and towards the merits of [the] petition."
Id. at 474. On the other hand, the Court held in
Day v. McDonough, 547 U.S. 198 (2006), that a State
did not waive a statute-of-limitations argument when the
State committed "merely an inadvertent error" in
failing to raise it earlier. Id. at 211.
has not established that the State waived the
statute-of-limitations defense here. Unlike the petitioner in
Wood, Coulter has not identified any expression by
the State of a clear and accurate understanding of the
timeliness issue and a deliberate effort to forego raising a
meritorious defense. The State did assume in certain
pleadings that Coulter's original petition was timely,
but there is nothing to show more than negligence by counsel
for the State in failing to recognize earlier that