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Coulter v. Kelley

United States Court of Appeals, Eighth Circuit

September 14, 2017

Roger Lewis Coulter, Petitioner - Appellant,
Wendy Kelley, Director, Arkansas Department of Corrections, Respondent - Appellee.

          Submitted: January 12, 2017

         Appeal from United States District Court for the Western District of Arkansas - El Dorado

          Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.

          COLLOTON, Circuit Judge.

         Roger 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[1] dismissed Coulter's petition as untimely.

         Under 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. § 2244(d)(2).

         Coulter 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.


         In 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).

         In 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.

         On 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, 2000.

         On 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.

         The 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.

         In its 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.

         The 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.

         The 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."


         We 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).

         Waiver 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.

         Coulter 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 ...

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