8th U.S. Circuit Court of Appeals modifies Nichols' '90-day' rule

St. Louis Daily Record & St. Louis Countian, Apr 14, 2008 by Donna Walter

The Missouri Court of Appeals is not a court of last resort, a federal appeals court said.

In so doing, the court overturned a nine-year-old precedent that temporarily tolled the statute of limitations for federal habeas review even when defendants didn't appeal their convictions to the state Supreme Court.

That question was before the full 8th U.S. Circuit Court of Appeals as it considered whether a Missouri inmate filed his petition for federal habeas review on time.

Although the 8th Circuit said the inmate, Donald D. Riddle, filed his petition for federal habeas corpus relief about 47 days late, the appeals court remanded the case to the U.S. District Court in St. Louis for a determination on whether Riddle's late filing was due to his reliance on Nichols v. Bowersox.

The court issued the Nichols opinion in 1999. "I don't think at that time they completely foresaw the argument that the state would be making now. It's a complicated jurisdictional argument," said Bryan Cave attorney K. Lee Marshall, who represented the Missouri State Public Defender System pro bono.

At issue is the so-called "90-day rule," which states that the statute of limitations does not begin to run any sooner than 90 days after a final decision by the court of last resort.

Riddle's lawyer, Eric C. Bohnet of Indianapolis, said his client relied on the 8th Circuit's 1999 Nichols decision, which said the defendant's judgment became final "no earlier than ... exactly 90 days after his conviction was affirmed on direct appeal."

Neither Michael Nichols nor Riddle appealed to the Missouri Supreme Court after the state appellate court affirmed their convictions. So under Nichols, the judgment in Riddle became final 90 days after the Court of Appeals affirmed his conviction.

The state asked the 8th Circuit to overrule this limited portion of its Nichols decision, while Bohnet argued the Court of Appeals can be considered a court of last resort because of the ways in which cases make it to the state Supreme Court.

The appellate court may transfer cases to the Supreme Court on its own motion before an opinion is issued, and any member of the appellate panel may transfer cases when the opinion is issued, he told the court last September. In addition, any party that wants to take a case to the state Supreme Court must first ask the appellate court to transfer the case, he said.

The 8th Circuit rejected Bohnet's arguments and abrogated its decision in Nichols.

The public defender system didn't take a position on whether Nichols was correct, Marshall said.

"Our interest was ensuring that the court was aware that clients had been advised that they were entitled to the 90-day period of Nichols and that the clients should be able to rely on that advice because it was based on clear 8th Circuit precedent," he said.

"I think the court took that into account, and I'm confident that's what the district courts will allow when this issue is reached in the future," Marshall said.

But that's not likely to happen without a fight from the Missouri Attorney General's Office if the state's position in oral arguments is any indication.

In oral arguments, Assistant Attorney General Andrew W. Hassell told the court that Riddle and other inmates who waited until the last minute to file for habeas relief should not get the benefit of prospective application.

"Reliance on a judicial decision isn't enough to bar retroactivity," he told the court, painting a picture of Riddle dragging out his appeal for no reason. The attorney general's office didn't respond to a telephone request for an interview.

The 8th Circuit disagreed with the state's argument.

"Because this opinion stands in the way of Riddle's petition being timely, he has established, as a matter of law, an extraordinary circumstance" to justify suspending the statute of limitations for the 90-day period, Judge Duane Benton wrote for the court.

The 8th Circuit said Riddle will have to establish at the District Court that he was diligently trying to pursue his rights and that his habeas petition would have been timely if he hadn't relied on the Nichols opinion.

Bohnet is confident the trial court will find in favor of Riddle. The court "made clear that Nichols would be pretty strong evidence for ... equitable tolling," he said.