Christopher Todd Williams v. Gary Gibson Attorney General of the State of Oklahoma

ORDER ON PETITION FOR REHEARING PAUL KELLY, Jr., Circuit Judge. Respondents-Appellees petition for rehearing and rehearing en banc. Previously, we held that Petitioner-Appellant Christopher Todd Williams’ federal habeas petition was timely because his appeal to the Oklahoma Court of Criminal Appeals (OCCA) from the denial of state post-conviction relief was “properly filed” within the meaning of 28 U.S.C. § 2244(d)(2), thereby tolling the one-year limitation period in § 2244(d). Williams v. Gibson, 229 F.3d 1310, 1312 (10th Cir.2000). In so holding, we concluded that Mr. Williams’ failure to file a petitión in error and supporting brief as required by OCCA Rule 5.2(C)(2) merely constituted a procedural bar, rather than a jurisdictional bar, and therefore Mr. Williams was entitled to toll until the OCCA dismissed his appeal. Id. at 1311-12. We relied upon the plain language of the rule which states: “Failure to file a petition in error, with a brief, within the time provided, shall constitute a procedural bar for this Court to consider the appeal.” Rule 5.2(C)(5). During the course of this appeal, Respondents-Appellees have focused on Rule 5.2(C)(5). In support of them petition for rehearing, however, they have submitted supplemental authority which establishes that, despite the language of the rule, the requirement of filing a petition in error within thirty days from the entry of the state district court’s judgment is statutory and jurisdictional based upon Okla. Stat. Ann. tit. 22, § 1087. 1 Weatherford v. State, 13 P.3d 987, 988 n. 1 (Okla.Ct.Crim. App.2000). Of course, we defer to the Oklahoma Court of Criminal Appeals on this- point and we grant the petition for rehearing in order to modify the rationale of our earlier disposition to conform with the OCCA’s interpretation of its rule. The outcome, however, does not change and the petition for rehearing is denied in all other respects. 2 *1269 The issue remains whether Mr. Williams’ federal habeas petition was timely filed based upon any tolling associated with an appeal from the denial of state post-conviction relief. A state application is “properly filed” within the meaning of § 2244(d)(2) “when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, — U.S.—,—, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000). Here, Mr. Williams “properly filed” his notice of appeal within ten days from the date of the district court’s denial of his application, as required by OCCA Rule 5.2(C)(1). Although he failed to perfect his appeal by filing a petition in error and supporting brief within thirty days as required by OCCA Rule 5.2(C)(2), he is entitled to toll thirty days from the district court’s denial of his post-conviction application for two independent reasons. First, only after the thirty-day deadline has passed without a petition in error and supporting brief could it be said that Mr. Williams’ appeal was no longer “properly filed” in the OCCA. Second, we recently have held that “regardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.” Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir.2000). When Mr. Williams filed his application for state post-conviction relief on August 3, 1998, he tolled the one-year limitation period with seventy-eight days remaining. Williams, 229 F.3d at 1311. The limitation period was tolled through the denial of his application (September 9, 1998), and during the next thirty days (October 9, 1998). Thus, the limitation period was tolled through October 9, 1998, with seventy-eight days remaining. Accordingly, Mr. Williams’ December 17,1998, federal habe-as petition, filed sixty-eight days later, was timely, and the case must be reversed and remanded to the district court for further disposition on the merits. IT IS SO ORDERED. Footnotes [1] Okla.Stat.Ann. tit 22, § 1087 provides in pertinent part: A final judgment entered under this act may be appealed to the Court of Criminal Appeals on petition in error filed either by the applicant or the state within thirty (30) days from the entry of the judgment. [2] The suggestion for rehearing en banc was transmitted to all of the judges who are in regular active service as required by Fed. R.App.P. 35. No member of the panel and no judge in regular active service on the court requested that the court be polled on rehearing en banc so the suggestion for rehearing en banc is also denied.