Petition for Writ of Certiorari — Charles Ivan Branham, Petitioner v. Montana, et al.
Supreme Court briefSep 23, 2021
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NO. _____________
IN THE SUPREME COURT OF THE UNITED STATES
CHARLES IVAN BRANHAM,
PETITIONER
V.
STATE OF MONTANA; PATRICK MCTIGHE,
RESPONDENTS,
AND
JIM SALMONSEN,
RESPONDENT.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Palmer A. Hoovestal, Esq.
Hoovestal Law Firm, PLLC
608 Lincoln Road West
Helena, MT 59602
P.O. Box 747
Helena, MT 59624-0747
Tel: (406) 457-0970
Fax: (406) 457-0475
palmer@hoovestal-law.com
Attorney for Petitioner
SUBMITTED: September 23, 2021
QUESTION PRESENTED
The issue is whether proceedings of the Sentence Review Division of the
Montana Supreme Court are a part of the “direct review” process under 28
U.S.C. § 2244(d)(1)(a) that delays the start of the running of the statute of
limitations when defendants cannot raise an equitable challenge to their
sentences on direct appeal, but must instead file an application for review of
sentence with the Montana Sentence Review Division.
i
RELATED PROCEEDINGS
United States District Court (D. Mont.):
Branham v. Montana, No. CV 18-59-M-DLC-KLD ( Sep. 23, 2019)
United States Court of Appeals (9th Cir.):
Branham v. Montana, No. 19-35829 (May 6, 2021)
ii
TABLE OF CONTENTS
Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Related Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Petition for Writ of Certiorari . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Jurisdiction and Timeliness of Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statutes and Rules Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
Legal Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B.
The Nature of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C.
The Proceedings in the State Courts. . . . . . . . . . . . . . . . . . . . . . . . 5
D.
The Equitabilities of Branham’s Sentence. . . . . . . . . . . . . . . . . . . 7
E.
Federal Habeas Corpus Proceedings. . . . . . . . . . . . . . . . . . . . . . . . 9
Reasons for Granting the Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A.
How the Sentence Review Division proceedings of the Montana
Supreme Court are characterized under Montana state law. . . . 14
B.
The Maryland, Florida, and Georgia statutes are different than
Montana’s Sentence Review procedure. . . . . . . . . . . . . . . . . . . . . 19
C.
Finality occurred when the Sentence Review Decision issued
its decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iii
D.
This Court’s review is warranted.. . . . . . . . . . . . . . . . . . . . . . . . . 25
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Appendix A – Court of Appeals Opinion
(May 6, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A
Appendix B – District Court’s Order Dismiss Petition
(September 23, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 B
Appendix C – Findings and Recommendation of United States
Magistrate Judge
(May 21, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 C
Appendix D – Statutory Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 D
Appendix E – Montana Sentence Review Division Rules . . . . . . . . . . . . . . 38 E
iv
TABLE OF AUTHORITIES
Case Law
Baker v. McNeil, 439 F. App'x 786 (11th Cir. 2011) (Unpublished) . . . . . . . . 20
Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999). . . . . . . . . . . . . . . . . 24
Branham v. Montana, 996 F.3d 959 (9th Cir. 2021) . . . . . . . . . . . . 2, 10-12, 25
Branham v. Montana, No. CV 18-59-M-DLC-KLD, 2019 U.S. Dist. LEXIS
162181 (D. Mont. Sep. 23, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Branham v. State, 2017 MT 47N, 387 Mont. 536, 390 P.3d 162 . . . . . . . . . . . . 6
Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) . . . . . . . . . . . . 20, 21
Carey v. Saffold, 536 U.S. 214, 223, 122 S. Ct. 2134,
153 L. Ed. 2d 260 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Clay v. United States, 537 U.S. 522, 527, 123 S. Ct. 1072, 1076 (2003) . . 22, 23
Gonzalez v. Thaler, 565 U.S. 134, 150, 132 S. Ct. 641,
181 L. Ed. 2d 619 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 24
Jimenez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681,
172 L. Ed. 2d 475 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Jordan v. State, 2008 MT 334, ¶ 18, 346 Mont. 193, 197-198, ¶ 18,
194 P.3d 657, 660-661 ¶ 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Lane v. Mullin, No. 12-CV-625-JHP-TLW,
2013 U.S. Dist. LEXIS 68282, fn. 3 (N.D. Okla. May 14, 2013) . . . . . . 26
Magwood v. Patterson, 561 U.S. 320, 323-24, 130 S. Ct. 2788,
177 L. Ed. 2d 592 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 24
McMonagle v. Meyer, 802 F.3d 1093, 1098 (9th Cir. 2015) . . . . . . . . . . . . . . . 10
Mitchell v. Green, 922 F.3d 187 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . 20
v
Ranta v. State, 1998 MT 95, 288 391, 958 P.2d 670. . . . . . . . . . . . 11, 15, 17, 23
Rivera v. Wall, No. 14-23 S, 2015 U.S. Dist. LEXIS 127514
(D.R.I. Sep. 22, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Sanchez v. State, 2004 MT 9, 319 Mont. 226,
86 P.3d 1, 3 (Mont. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
Sentence Review Panel v. Moseley, 284 Ga. 128, 663 S.E.2d 679 (2008). . . . . 21
Smith v. Williams, 871 F.3d 684, 685-86 (9th Cir. 2017) . . . . . . . . . . . . . . . . 12
State v. Ashby, 2008 MT 83, ¶ 8, 342 Mont. 187, ¶ 8, 179 P.3d 1164, ¶ 8 . . . 17
State v. Branham, 2012 MT 1, 363 Mont. 281, 269 P.3d 891 . . . . . . . . . . . . . . 6
State v. Branham, MT Sent. Rev. Div. Cause No DC-10-008 . . . . . . . . . . . . . . 9
State v. Brooks, 150 Mont. 399, 412, 436 P.2d 91, 98 (1967) . . . . . . . . . . . . . . 16
State v. Kern, 2003 MT 77, ¶ 54, 315 Mont. 22, ¶ 54, 67 P.3d 272, ¶ 54 . . . . 16
State v. McKenzie, 186 Mont. 481, 519, 608 P.2d 428, 450 (1980) . . . . . . . . . 16
State v. Moorman, 279 Mont. 330, 928 P.2d 145 (Mont. 1996) . . . . . . . . . 18, 19
State v. Simtob (1969), 154 Mont. 286, 288, 462 P.2d 873, 874. . . . . . . . . . . . 15
State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. . . . . . . . . . . . . 16
Summers v. Schriro, 481 F.3d 710, 716-717
(9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 19, 25
Wall v. Kholi, 562 U.S. 545, 555,
131 S.Ct. 1278, 1286, fn. 3 (2011) . . . . . . . . . . . . .
4, 5, 10-13, 19, 21, 25
Federal Statutory Law
The Anti-Terrorism and Effective Death Penalty Act of 1996 . . . . . . . . . . 2, 13
vi
28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 2244(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5,9, 18-20
28 U.S.C. § 2244(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 20, 21
28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9, 23
28 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Montana Statutory Law
§ 3-2-201(2), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 3-2-203, MCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22
§ 3-2-204(5), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23
§ 45-5-102(1), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
§ 46-18-101, MCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§ 46-18-901, MCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
§ 46-18-902, MCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
§ 46-18-904(1), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 46-18-904(3), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
§ 46-18-905, MCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21, 24
§ 46-18-905(1), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
§ 46-20-104(1), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 46-20-105, MCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§§ 46-20-901 through 905, MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
vii
§ 46-21-102(2), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
§ 46-21-105(2), MCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Other
Ariz. R. Crim. P. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fla. R. Crim. P. 3.800 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Maryland Rule 4-345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Mont. Const, Art. VII, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Part 9, chapter 18, of Title 46 of the Montana Code Annotated . . . . . . . . . . . 15
Rhode Island’s Rule of Criminal Procedure 35. . . . . . . . . . . . . . . . . . . . . . . . . 11
SRD, Rule 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7
SRD, Rule 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SRD, Rule 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16
Sup. Ct. Rule 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Sup. Ct. Rule 13, ¶ 1, as amended by the Court’s July 19, 2021, order . . . . . . 2
viii
NO. _____________
IN THE SUPREME COURT OF THE UNITED STATES
CHARLES IVAN BRANHAM,
PETITIONER
V.
STATE OF MONTANA; PATRICK MCTIGHE,
RESPONDENTS,
AND
JIM SALMONSEN,
RESPONDENT.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Petitioner, Charles Ivan Branham, petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Ninth
Circuit in this case.
1
OPINIONS BELOW
The opinion of the Ninth Circuit Court of Appeals is reported at
Branham v. Montana, 996 F.3d 959 (9th Cir. 2021). App., infra, 1A to 15A.
The District Court’s order dismissing Branham’s 28 U.S.C. § 2254
Petition for the Issuance of a Writ of Habeas Corpus is attached. App., infra,
16B to 23B; see also, Branham v. Montana, No. CV 18-59-M-DLC-KLD, 2019
U.S. Dist. LEXIS 162181 (D. Mont. Sep. 23, 2019).
The Magistrate Judge’s recommendations to the District Court are also
attached hereto. App., infra, 24C to 35C.
JURISDICTION AND TIMELINESS OF THE PETITION
The Ninth Circuit’s Opinion was filed on May 6, 2021. On July 19,
2021, this Court extended the time to file a petition for a writ of certiorari 150
days from the date of that judgment or order. See, Sup. Ct. Rule 13, ¶ 1, as
amended by the Court’s July 19, 2021, order. Under that order, the deadline
for filing a petition for a writ of certiorari is October 6, 2021. This Court’s
jurisdiction arises under 28 U.S.C. § 1254(1).
STATUTES AND RULES INVOLVED
Relevant statutory provisions and rules are reprinted in the appendix
to this petition. App., infra, 36D and 38E. The Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), in particular, 28 U.S.C. §2244(d)(1)(A),
2
provides:
(d) (1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from
the latest of –
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
App., infra, 37D.
Rule 2 of the Sentence Review Division of the Montana Supreme Court
states:
Within sixty (60) days after sentence was imposed, a
defendant may apply for the sentence to be reviewed by the
Division.
If an appeal to the Supreme Court or petition for post
conviction relief is filed, the 60 day period commences when the
appeal or petition is complete.
App., infra, 38E.
Rule 12 of the Sentence Review Division of the Montana Supreme Court
states:
3
The sentence imposed by the District Court is presumed
correct. The sentence shall not be reduced or increased unless it
is clearly inadequate or clearly excessive.
App., infra, 39E.
STATEMENT OF THE CASE AND THE FACTS
A.
Legal Background.
The AEDPA’s one-year statute of limitations runs “from the latest of”
four specified dates, including “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A). A properly filed application for state
postconviction or other collateral review with respect to the pertinent
judgment or claim tolls the one-year limitation period for filing a federal
habeas petition. 28 U.S.C. § 2244(d)(2). The phrases “direct review” and
“collateral review” are not defined in AEDPA.
However, “the conclusion of direct review occurs” once finality attaches.
Gonzalez v. Thaler, 565 U.S. 134, 150, 132 S. Ct. 641, 181 L. Ed. 2d 619
(2012). The phrase “collateral review” in § 2244(d)(2) means judicial review of
a judgment in a proceeding that is not part of direct review. Wall v. Kholi,
562 U.S. 545, 547, 131 S.Ct. 1278, 1282, (2011). In footnote 3, the Court
noted, without deciding the merit of the argument, that direct review can
4
occur when defendants cannot raise a challenge to their sentence on direct
appeal; instead, they must bring an alternate motion. Id., 562 U.S. at 555,
131 S.Ct. at 1286, fn. 3. This case presents the situation and the argument
referred to by the Court in footnote 3 of Wall v. Kholi.
B.
The Nature of the Case.
Charles Branham was convicted in the State of Montana of mitigated
deliberate homicide and sentenced to a 40-year period of confinement without
eligibility for parole. After pursuing his state court remedies, he filed a
petition for writ of habeas corpus under 28 U.S.C. § 2254. The District Court
dismissed his petition as untimely. Because the Ninth Circuit had “not
clearly ruled on the issue,” the District Court also granted a certificate of
appealability on the question of whether the Montana Supreme Court’s
Sentence Review Division proceedings were a form of “direct review” under 28
U.S.C. § 2244(d)(1)(A) that delayed the start of the running of the statute of
limitations.
The Ninth Circuit Court of Appeals affirmed, concluding that a
proceeding in the Sentence Review Division of the Montana Supreme Court is
collateral review.
C.
The Proceedings in the State Courts.
Charles Branham was charged with the felony offense of Deliberate
5
Homicide in violation of § 45-5-102(1), MCA, after Branham fatally stabbed
Michael Kinross-Wright during a fight between the two of them. Branham
asserted the justifiable use-of-force defense and testified at trial that the fatal
stab wound was inflicted when he was on his hands and knees striking
backwards over his shoulder with a knife as Kinross-Wright was standing
behind him, punching the back of his head. The prosecution contended that
the fatal wound was inflicted at the beginning of the fight while Branham
and Kinross-Wright were facing each other and before Branham’s life was
threatened. Branham was convicted by jury verdict of Mitigated Deliberate
Homicide and sentenced to a 40-year period of confinement without eligibility
for parole.
He appealed his conviction to the Montana Supreme Court, which
affirmed his conviction. State v. Branham, 2012 MT 1, 363 Mont. 281, 269
P.3d 891.
Branham then petitioned for post-conviction relief in the state district
court. Branham alleged that his trial and appellate counsel were ineffective.
The state district court denied his petition.
Branham appealed the district court’s denial of his petition for post
conviction relief. The Montana Supreme Court issued its opinion on March
7, 2017, affirming the district court’s order. Branham v. State, 2017 MT 47N,
6
387 Mont. 536, 390 P.3d 162.
Rule 2 of the Montana Sentence Review Division of the Supreme Court
Rules allows a defendant to apply for his or her sentence to be reviewed
within 60 days after sentence was imposed. However, “if an appeal to the
Supreme Court or petition for post conviction relief is filed, the 60 day period
commences when the appeal or petition is complete.” In compliance with this
rule, Branham timely filed his Application for Review of Sentence by the
Sentence Review Division of the Supreme Court of Montana on March 20,
2017.
D.
The Equitabilities of Branham’s Sentence.
A hearing was held on Branham’s application for review by the
Montana Supreme Court’s Sentence Review Division on August 4, 2017.
Branham’s equitable argument to the Sentence Review Division was that his
sentence of 40 years, none of which was suspended and which restricted
parole eligibility, was clearly excessive. When imposing sentence, the
sentencing judge did not engage in any sort of analysis or discussion of the
legislatively-mandated sentencing policy and factors set forth in § 46-18-101,
MCA. He did not analyze or refer to the facts of the case and how they
applied to Branham and the statutory sentencing policy of § 46-18-101, MCA.
The sentencing judge based the sentence only on Branham’s “extensive
7
history of drugs and alcohol use and the circumstances of the case.” While
Branham had reported some drug and alcohol use, it was not extensive. He
further did not have a substantial criminal history. He was convicted of two
property offenses, one of which was when he was a juvenile, and some traffic
violations. He had no history of violence. The circumstances of the case
mandated a much more lenient sentence. The victim, Michael
Kinross-Wright, did have a criminal history and was supplying drugs to and
having an affair with Branham’s girlfriend. He had a BAC of 0.15 as well as
THC in his bloodstream at the time of his death, and he physically attacked
Branham with the very knife that he ended up being stabbed with during the
ensuing altercation. The presentence report writer recommended a sentence
of forty years with twenty suspended, and without any parole restrictions.
She reasoned that such a sentence would allow Branham to be monitored in
the community while $13,123.82 in restitution could be paid to the victim’s
family. The sentencing judge rejected that recommendation, but gave no
reason for doing so. Branham requested the Sentence Review Division to
impose the sentence that was recommended by the presentence report writer:
40 years with 20 years suspended and parole eligibility. That is a sentence
that would satisfy the correctional and sentencing policies mandated by the
Montana Legislature and was neither inadequate nor excessive. These were
8
equitable arguments that Branham made to the Sentence Review Division
that the Montana Supreme Court could not hear on direct appeal.
A hearing was held on August 4, 2017, and the Sentence Review
Division of the Supreme Court affirmed Branham’s sentence on August 25,
2017. State v. Branham, MT Sent. Rev. Div. Cause No DC-10-008.
E.
Federal Habeas Corpus Proceedings.
Branham filed his 28 U.S.C. § 2254 Petition for a Writ of Habeas
Corpus in the District Court on March 21, 2018.
On May 21, 2019, the United States Magistrate Judge issued his
Findings and Recommendations. In it, he found that Branham’s Petition was
untimely by some 184 days and recommended that Branham’s Petition be
dismissed as time-barred without excuse.
Branham timely filed his objections to the Magistrate Judge’s Findings
and Recommendations on May 29, 2019. Branham objected that the
Magistrate Judge mistakenly applied a statutory tolling analysis and that the
statute of limitations did not begin to run until Branham’s Sentence Review
Division proceedings were complete on August 25, 2017. Branham argued
that the proceedings of the Sentence Review Division of the Montana
Supreme Court were a form of direct review under 28 U.S.C. § 2244(d)(1)(A)
that delayed the start of the running of the statute of limitations. In fact,
9
Branham had 164 days left before his limitations period would expire and his
Petition for Habeas Corpus was well within the time period for filing. The
Magistrate Judge’s calculations were therefore incorrect and the District
Court should reject his recommendation.
The District Court performed a de novo review and on September 23,
2019, issued its order dismissing Branham’s Petition, but granting his
request for the issuance of a certificate of appealability. App., infra, 16B.
Branham appealed to the Ninth Circuit Court of Appeals. On May 6,
2021, the Court of Appeals affirmed the District Court. App., infra, 1A.
In its Opinion the Court of Appeals first noted that “[its] precedent does
not resolve the issue before us.” Branham v. Montana, 996 F.3d 959, 963 (9th
Cir. 2021). The Court of Appeals then referred to this Court’s definition of
“collateral review” in Wall v. Kholi, 562 U.S. 545, 552 (2011) as “a form of
review that is not part of the direct appeal process,” noting that a “collateral
attack” is “[a]n attack on a judgment in a proceeding other than a
direct appeal.” Branham, 996 F.3d at 964. It then expressed doubts about its
own criticism in Summers v. Schriro, 481 F.3d 710, 712-13 (9th Cir. 2007) of
the suggestion that the phrase “direct review excludes any form of review
that is not a direct appeal,” stating that such a suggestion would be
irreconcilable with Kholi and McMonagle v. Meyer, 802 F.3d 1093, 1098 (9th
10
Cir. 2015) (“[i]t is when a direct appeal becomes final that [the] 1-year statute
of limitations begins running.” The Court of Appeals examined “how a state
procedure functions, rather than the particular name it bears” and concluded
that “ ‘direct review’ includes a proceeding that, although not called an
‘appeal,’ is nevertheless the ‘functional equivalent of a direct appeal.’ ”
Branham, 996 F.3d at 964. It then reviewed three factors: first, how the
proceeding is characterized under state law; second, the timing of the
proceeding; and third, whether the proceeding takes the place of an appeal in
the State’s system.
It was while examining the third factor that the Court of Appeals gave
a nod toward footnote 3 of Wall v. Kholi. Looking at Rhode Island’s Rule of
Criminal Procedure 35 and Arizona’s Rule of Criminal Procedure 32, the
Court of Appeals recognized that a proceeding that substitutes for an appeal
can be a form of direct review even if it is not called an “appeal.” Branham,
996 F.3d at 965. The Court of Appeals acknowledged that “Branham observes
that a Sentence Review Division proceeding is ‘the only opportunity a
criminal defendant has to challenge an otherwise lawful sentence on
equitable grounds.’ ” (Italics in original). Id., at 967, citing Ranta v. State,
1998 MT 95, ¶27, 288 Mont. 391, 401, ¶ 27, 958 P.2d 670, 676, ¶ 27. The
Court of Appeals then stated, “[a]lthough we have found no decision
11
addressing a state procedure precisely like Montana’s sentence review, our
conclusion is consistent with the decisions of other courts that have examined
similar state proceedings in which a prisoner can challenge the length of a
sentence.” Branham, at 968. The Court noted that when such a proceeding
results in the vacatur of the sentence and the imposition of a new sentence,
then the statute of limitations will run anew from the imposition of the new
judgment. Id., citing Magwood v. Patterson, 561 U.S. 320, 323-24, 130 S. Ct.
2788, 177 L. Ed. 2d 592 (2010) and Smith v. Williams, 871 F.3d 684, 685-86
(9th Cir. 2017). The Court then referred to rules from Maryland, Florida, and
Georgia – rules that are much different from Montana’s Sentence Review
Division proceeding rules – and noted that when it doesn’t result in the
vacatur of a sentence and the imposition of a new sentence, the proceeding is
generally characterized as collateral review and does not restart the
limitations period, Branham, at 968. The Court of Appeals, however,
admitted “[w]e are aware of no authority treating a procedure similar to
Montana’s as a form of direct review that restarts the statute of limitations
under section 2244(d).” Branham, at 968.
This is the case that would treat Montana’s procedure as a form of
direct review that delays or resets the statute of limitations. The Court of
Appeals was wrong as a matter of law. Montana’s Sentence Review Division
12
proceedings are a form of “direct review” that delay the statute of limitations,
and Branham’s § 2254 habeas petition was timely.
REASONS FOR GRANTING THE PETITION
In Wall v. Kholi, 562 U.S. 545, 555, 131 S.Ct. 1278, 1286, fn. 3 (2011)
this Court stated that it could imagine the argument that a sentence
reduction proceeding is in fact part of direct review under the Antiterrorism
and Effective Death Penalty Act of 1996 because defendants cannot raise a
challenge to their sentences on direct appeal; instead, they must bring a
motion to reduce their sentence. Because that issue was not briefed or argued
by the parties, this Court expressed no opinion as to the merit of such an
argument. Kholi, 562 U.S. at 555, fn. 3.
Here, Branham did brief and make the argument. The Court of
Appeals gave only a nod toward it, expressing criticism about its own case,
Summers v. Schriro. The Court of Appeals acknowledged that there was no
precedent or cases addressing a proceeding like Montana’s Sentence Review
Division procedure and referred to other state procedures that are
substantially different from Montana’s. Its decision is significantly flawed
and did not decide the argument addressed in footnote 3 of Wall v. Kholi. The
question in this case goes to the merits of that argument. Circuit precedent
does not address the issue and there is no decision addressing a procedure
13
precisely like Montana’s sentence review. Compelling reasons exist and a
writ of certiorari should be granted so that the Court can address this
important question of federal law that has not been, but should be, settled by
this Court. Sup. Ct. Rule 10(c).
A.
How the Sentence Review Division proceedings of the Montana
Supreme Court are characterized under Montana state law.
The Montana Supreme Court has appellate jurisdiction and may make
rules governing appellate procedure. Mont. Const, Art. VII, § 2; § 3-2-201(2),
MCA. Its appellate jurisdiction extends to all cases at law and in equity. § 32-203, MCA. In proceedings of an equitable nature, it shall review all
questions of fact arising upon the evidence presented in the record, and
determine the same, as well as questions of law. § 3-2-204(5), MCA.
An appeal in a criminal case may be taken only from a final judgment
and orders which affect a defendant’s substantial rights. § 46-20-104(1),
MCA. Upon appeal from a judgment, the court may review any alleged error
which involves the merits or necessarily affects the judgment. § 46-20-105,
MCA.
Montana has a bifurcated appellate review process for criminal
sentences. The Montana Supreme Court will review a criminal sentence for
legality only. It considers whether the sentence falls within the parameters
14
set by the applicable sentencing statutes. The Montana Supreme Court
leaves equitable claims to its Sentence Review Division. Jordan v. State,
2008 MT 334, ¶ 18, 346 Mont. 193, 197-98, 194 P.3d 657, 660-61.
The Sentence Review Division of the Montana Supreme Court was
created in 1967. Its statutory authority is found in Part 9, chapter 18, of Title
46 of the Montana Code Annotated, and is entitled “Appellate Review of Legal
Sentences.” The Sentence Review Division was created to provide appellate
review of legal sentences challenged by the recipient as being unjust or
inequitable. State v. Simtob, 154 Mont. 286, 288, 462 P.2d 873, 874 (1969).
It “functions as an arm of th[e Montana Supreme] Court.” Ranta, ¶¶ 12, 27.
It is a “division” of the Montana Supreme Court in which the chief justice
appoints three district court judges to act as a “review division” of the
Supreme Court and designates one of the judges to act as presiding officer of
the review division. § 46-18-901, MCA. As a “division” of the Montana
Supreme Court, district courts have no jurisdiction to review a decision of the
Sentence Review Division. Jordan, at ¶ 23.
The Sentence Review Division reviews a judgment as it relates to the
sentence imposed and any other sentence imposed on the person at the same
time. It may order a different sentence or sentences to be imposed as could
have been imposed at the time of the imposition of the sentence under review,
15
including a decrease or increase in the penalty, or decide that the sentence
under review should stand. § 46-18-904(1), MCA. The sentence imposed by
the district court is presumed correct. § 46-18-904(3), MCA. It is reviewed by
three district court judges who decide whether the sentence imposed was
“clearly inadequate or clearly excessive.” SRD, Rule 12. Their decision is
final and cannot be appealed. § 46-18-905, MCA.
A proceeding before the Sentence Review Division of the Montana
Supreme Court is the only means a defendant has available to exercise the
right to appellate review of the “equitability” of a sentence. It is the first and
only time that the equitability of a sentence can be directly reviewed by an
“arm” of the Montana Supreme Court. Before the Sentence Review Division
was created, the Montana Supreme Court reviewed criminal sentences for
both legality and equitability. State v. Brooks, 150 Mont. 399, 412, 436 P.2d
91, 98 (1967). After its creation, the Sentence Review Division was charged
with determining the appropriateness of criminal sentences with respect to
the individual offender and a particular offense. State v. McKenzie, 186 Mont.
481, 519, 608 P.2d 428, 450 (1980) (overruled in part on other grounds by
State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735). Questions of
equitability, such as length of sentence or proportionality to the crime, fall
under the purview of the Sentence Review Division, State v. Kern, 2003 MT
16
77, ¶ 54, 315 Mont. 22, ¶ 54, 67 P.3d 272, ¶ 54, whereas the Montana
Supreme Court reviews sentences for legality such as whether the sentence is
within the parameters of the sentencing statute. State v. Ashby, 2008 MT 83,
¶ 8, 342 Mont. 187, ¶ 8, 179 P.3d 1164, ¶ 8. Were the Montana legislature to
abolish the Sentence Review Division, the function of reviewing sentences on
equitable grounds would return to the Montana Supreme Court. Ranta, ¶ 27.
As a result of this bifurcated review process, a person can only seek review by
the Sentence Review Division of the equitability of his sentence, and review
by the Montana Supreme Court of the legality of his sentence. Jordan v.
State, 2008 MT 334, ¶ 18, 346 Mont. 193, 197-98, 194 P.3d 657, 660-61; see
also, SRD, Rule 3. The Sentence Review Division proceeding is therefore the
appeal of the equitability of a sentence. Ranta, ¶ 27 (“It functions as an
appellate process because it is the only opportunity a criminal defendant has
to challenge an otherwise lawful sentence on equitable grounds”), cf.,
Summers v. Schriro, 481 F.3d at 716 (“direct review includes a proceeding
that is “the functional equivalent of a direct appeal”); Carey v. Saffold,
536 U.S. 214, 223, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002) (for purposes of
applying a federal statute that interacts with state procedural rules, we look
to how a state procedure functions, rather than the particular name that it
bears.)
17
The Court of Appeals’ reliance on State v. Moorman, 279 Mont. 330, 928
P.2d 145 (Mont. 1996) as a basis for characterizing Sentence Review Division
proceedings as “collateral review” for purposes of 28 U.S.C. § 2244(d)(1)(A)
was misplaced. Branham, at 966. Moorman was decided in the context of
§ 46-21-105(2), MCA, which states that “[w]hen a petitioner has been afforded
the opportunity for a direct appeal of the petitioner’s conviction, grounds for
relief that were or could reasonably have been raised on direct appeal may
not be raised, considered, or decided in a proceeding brought under [the
Montana Post-Conviction Hearing Act.]” (Italics added.) Moorman did not
directly appeal the legality of his sentence – his dangerous offender
designation for purposes of parole eligibility – to the Montana Supreme
Court. Instead, he petitioned the Sentence Review Division to review his
dangerous offender designation, which denied his petition. He then filed a
petition for post-conviction relief, and the district court held that he was
procedurally barred from raising them in his petition for post-conviction relief
by § 46-21-105(2), MCA. Moorman, 279 Mont. at 334, 928 P.2d at 148. The
Court of Appeals’ reliance on Moorman’s reasoning was therefore inapplicable
to 28 U.S.C. § 2244(d)(1)(A). Moorman noted that while a defendant may
apply for a review of his sentence with the Sentence Review Division
pursuant to the §§ 46-20-901 through 905, MCA, nowhere in the language of
18
those statutory provisions does the word “appeal” appear. 279 Mont. at 338,
928 P.2d at 150. Lost in both the Moorman court’s and the Court of Appeals’
analysis was the fact that the Sentence Review Division statutory scheme is
entitled “Appellate Review of Legal Sentences.” (Italics added.) Furthermore,
nowhere in 28 U.S.C. § 2244(d)(1)(A) does the word “appeal” appear either.
The statute says “direct review,” it does not say “direct appeal.” In the
context of AEDPA, Montana’s Sentence Review Division proceedings are the
“functional equivalent of a direct appeal” (Summers v. Schriro, 481 F.3d at
716) and a form of direct review because that is the only time that a
defendant can challenge his sentence on equitable grounds. Carey v. Saffold,
536 at 223; Wall v. Kholi, 562 U.S. at 555, 131 S.Ct. at 1286, fn. 3. Moorman
is therefore distinguishable and the Court of Appeals’ reliance on it for the
purpose of determining that Montana’s Sentence Review process is collateral
review for purposes of § 2244(d)(1)(A) was misplaced.
B.
The Maryland, Florida, and Georgia statutes are different than
Montana’s Sentence Review procedure.
The Court of Appeals admitted that it was aware of no authority
treating a procedure similar to Montana’s as a form of direct review that
restarts the statute of limitations under 2244(d). It then referred to rules
from Maryland, Florida, and Georgia as a basis for its ruling.
19
The Maryland, Florida, and Georgia statutes and cases cited by the
Court of Appeals are different from and not even similar to Montana’s
statute. They involved motions to reduce a sentence filed with the same trial
judge who imposed the sentence at the outset. They were requests for
leniency or to correct an illegal sentence. Maryland Rule 4-345 allows the
court to correct an “illegal sentence,” revise a sentence in case of fraud,
mistake, or irregularity, or correct an evident mistake in the announcement
of a sentence. Mitchell v. Green, 922 F.3d 187 (4th Cir. 2019) involved a
motion to reduce a sentence under Maryland Rule 4-345 and the question of
“tolling” posed by 28 U.S.C. § 2244(d)(2). Id., at 190. It did not involve the
question of whether Maryland Rule 4-345 was a form of direct review for
purposes of 28 U.S.C. § 2244(d)(1)(A). A Rule 4-345 motion can both
challenge the legality of a sentence as well as request leniency, and therefore,
is both appealable and not appealable. Mitchell, 922 F.3d at 193-194.
Florida Rule 3.800 allows a trial court to correct an illegal sentence
imposed by it or an incorrect calculation made by it, or to correct a sentencing
error, or reduce or modify a legal sentence imposed by it. Fla. R. Crim. P.
3.800. Baker v. McNeil, 439 F. App'x 786 (11th Cir. 2011) (Unpublished).
The Georgia rule referred to by the Court of Appeals and cited in
Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) was repealed in
20
2007 as unconstitutional. Sentence Review Panel v. Moseley, 284 Ga. 128, 663
S.E.2d 679 (2008). Bridges was a tolling case under § 2244(d)(2) and Bridges
didn’t appeal his convictions and sentences. The statute provided that
sentence review was to determine whether a sentence was “excessively
harsh,” was available only to those Georgia state prisoners who had been
sentenced to more than 12 years in prison, stated that the sentence review
panel did not issue written opinions, nor could it increase or completely
eliminate a sentence. Bridges, 284 F.3d at 12103.
In contrast, an application submitted to Montana’s Sentence Review
Division is not heard by the same trial judge who imposed sentence. § 46-18902, MCA. It is the appeal of equitable considerations. It is the one and only
time that review of the equities of a sentence can occur. The decision is final,
cannot be appealed, and is reported. § 46-18-905, MCA, cf., Kholi, 562 U.S. at
549, 554 (Kholi asked trial court to reconsider its prior determination in a
“plea for leniency,” motion denied and appealed to the Rhode Island Supreme
Court). The Maryland, Florida, and Georgia statutes are different from and
not even “similar” to Montana’s sentence review proceedings.
C.
Finality occurred when the Sentence Review Decision issued its
decision.
The Court of Appeals’ reliance on Sanchez v. State, 2004 MT 9, 319
21
Mont. 226, 86 P.3d 1, 3 (Mont. 2004) for the proposition that a “conviction
becomes final when the time for appeal expires, despite a later application to
the Sentence Review Division,” was also misplaced. Sanchez involved the
dismissal of a petition for post-conviction relief because it was time-barred.
Like Moorman, the question of “finality” was again limited to the context of
Montana’s post-conviction hearing statute, § 46-21-102(2), MCA. Sanchez
twice stated that he did not want to proceed with sentence review and his
application was twice held in abeyance until he finished his appeal. However,
he also twice failed to appeal to the Montana Supreme Court, and instead
filed a petition for post-conviction relief that was over one and one-half years
late. Sanchez did not discuss “finality” within the context of § 46-18-905(1),
MCA (“[t]he decision of the review division in each case is final”) or Ranta at
¶ 27 (“like decisions issued directly by this Court, the decisions of the review
division are final, cannot be appealed, and are reported in the Montana
Reports”), as is required by Clay v. United States, 537 U.S. 522, 527, 123 S.
Ct. 1072, 1076 (2003).
Appellate review by the Montana Supreme Court extends to all cases
both at law and in equity. § 3-2-203, MCA. In proceedings of an equitable
nature, it shall review all questions of fact arising upon the evidence
presented in the record, and determine the same, as well as questions of law.
22
§ 3-2-204(5), MCA. Neither cases at law nor cases in equity have precedence
or priority over the other, and there is no basis for a claim that equitable
review “lies aside” from legal review or is not part of “main review.” They are
both equally important, and sentence review is a “critical stage of the
proceedings.” Ranta, ¶ 25. Montana’s sentence review procedure functions
as an appeal because it is the only opportunity a criminal defendant has to
challenge an otherwise lawful sentence on equitable grounds. Ranta, ¶ 27.
Under Montana law, the Sentence Review Division has more authority to
change a sentence than does the Supreme Court. Ranta, ¶ 28. The Ranta
court’s pronouncement establishes unequivocally that the proceeding takes
the place of an appeal in Montana’s system. Once the Sentence Review
Division issued its decision, nobody – neither Branham nor the State – could
appeal its decision.
Finality is a concept that has been “variously defined; like many legal
terms, its precise meaning depends on context.” Clay v. United States, 537
U.S.522, 527, 123 S. Ct. 1072, 1076, 155 L. Ed. 2d 88, 94 (2003). For purposes
of 28 U.S.C. § 2255, “finality attaches when this court affirms a conviction on
the merits on direct review.” Id. For purposes of § 2254, Branham’s
judgment did not become “final” until the Sentence Review Division
proceedings were concluded. The date of entry of judgment from Montana’s
23
highest court (Bowen v. Roe, 188 F.3d 1157, 1158-1159 (9th Cir. 1999)) is
when its “arm,” the Sentence Review Division of the Montana Supreme
Court, ruled on the equitabilities of Branham’s sentence. That was the date
that marked Branham’s sentence as “final.” § 46-18-905, MCA. Once finality
attached, “the conclusion of direct review occurs.” Gonzalez v. Thaler, 565
U.S. 134, 150, 132 S. Ct. 641, 181 L. Ed. 2d 619 (2012).
In Jimenez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681, 172 L. Ed. 2d
475 (2009) the state court had permitted Jimenez to file an out-of-time direct
appeal. This Court held that this “reset” the limitations period; Jimenez’s
judgment would now become final at “the conclusion of the out-of-time direct
appeal, or the expiration of the time for seeking review of that [out-of-time]
appeal.” Id., at 120-121, 129 S. Ct. 681, 172 L. Ed. 2d 475. This Court
adopted the out-of-time appeal’s date of finality over the initial appeal’s date
of finality. Id., at 119-121, 129 S. Ct.681, 172 L. Ed. 2d 475.
The Sentence Review Division’s decision date of finality is therefore
entirely consistent with Jimenez, because a state court’s reopening of direct
review will reset the limitations period. If the Sentence Review Division had
modified Branham’s sentence on equitable grounds, then there would have
been no question that AEDPA’s one-year statute of limitations would have
run from August 25, 2017. Magwood v. Patterson, 561 U.S. at 341-342.
24
Appellate review of the equitabilities of a legal sentence is not
“collateral” or “lying aside from the main subject.” This Court rejected Rhode
Island’s contention that “collateral review” includes only “legal” challenges to
a conviction or a sentence and excludes motions seeking a discretionary
sentence reduction. Wall v. Kholi, 562 U.S. at 550, 131 S.Ct. 1283-1284.
Applying the same reasoning, because only legal challenges can be made on
direct appeal in Montana, it necessarily follows that equitable challenges to a
legal sentence are also a form of direct appellate review. Kholi, 562 U.S. at
555, fn. 3.
D.
This Court’s review is warranted.
The Court of Appeals recognized that no court has decided this
important question of federal law and its decision seemed to be hampered by
the lack of this Court’s pronouncement on the issue. It questioned its own
criticism in Summers that “the phrase ‘direct review” excludes any form of
review that is not a ‘direct appeal.’ ” Branham, 996 F.3d at 964. Yet footnote
3 of Wall v. Kholi recognizes that a legitimate argument can be made that
direct review can occur when there is only one opportunity for a defendant to
raise a challenge to his sentence, and that is the case here. The issue has
arisen in two prior cases involving Rhode Island and Arizona rules. Wall v.
Kholi; Summers v. Schriro; see also, Rivera v. Wall, No. 14-23 S, 2015 U.S.
25
Dist. LEXIS 127514 (D.R.I. Sep. 22, 2015); Lane v. Mullin, No.
12-CV-625-JHP-TLW, 2013 U.S. Dist. LEXIS 68282, fn. 3 (N.D. Okla. May 14,
2013). Even though the particular circumstances of each case and the laws of
each state are necessarily somewhat unique, precedential decisions like the
one here will affect future § 2254 cases of great importance that warrant this
Court’s review.
CONCLUSION
The Petition for a Writ of Certiorari should be granted.
DATED this 23rd day of September, 2021.
RESPECTFULLY SUBMITTED:
By: /s/ Palmer A. Hoovestal
Palmer Hoovestal
Attorney for Petitioner
CHARLES IVAN BRANHAM
26
APPENDICES
(1 of 19)
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APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES IVAN BRANHAM,
Petitioner-Appellant,
v.
STATE OF MONTANA; PATRICK
MCTIGHE,
Respondents-Appellees,
No. 19-35829
D.C. No.
9:18-cv-00059DLC-KLD
OPINION
and
JIM SALMONSEN,
Respondent.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted July 10, 2020
Portland, Oregon
Filed May 6, 2021
001 A
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2
BRANHAM V. STATE OF MONTANA
Before: Michael R. Murphy, * Mark J. Bennett, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Miller
SUMMARY **
Habeas Corpus
The panel affirmed the district court’s judgment
dismissing as barred by the one-year statute of limitations a
Montana state prisoner’s habeas corpus petition brought
pursuant to 28 U.S.C. § 2254.
Under 28 U.S.C. § 2244(d), the one-year period begins
to run upon “the conclusion of direct review” of the
conviction, and it is suspended during the pendency of any
“properly filed application for State post-conviction or other
collateral review.” The panel held that a proceeding in the
Sentence Review Division of the Montana Supreme Court is
collateral review, not direct review, which rendered the
petition in this case untimely.
*
The Honorable Michael R. Murphy, United States Circuit Judge
for the U.S. Court of Appeals for the Tenth Circuit, sitting by
designation.
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**
002 A
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BRANHAM V. STATE OF MONTANA
3
COUNSEL
Palmer A. Hoovestal (argued), Hoovestal Law Firm PLLC,
Helena, Montana, for Petitioner-Appellant.
Mardell Ployhar (argued), Assistant Attorney General;
Timothy C. Fox, Attorney General; Office of the Attorney
General, Helena, Montana; for Respondents-Appellees.
OPINION
MILLER, Circuit Judge:
A prisoner who seeks a federal writ of habeas corpus to
review a state-court conviction must satisfy a one-year
statute of limitations. 28 U.S.C. § 2244(d). The one-year
period begins to run upon “the conclusion of direct review”
of the conviction, and it is suspended during the pendency of
any “properly filed application for State post-conviction or
other collateral review.” Id. We are asked to decide whether
a proceeding in the Sentence Review Division of the
Montana Supreme Court constitutes direct review or
collateral review. We conclude that it is collateral review.
I
On the night of December 10, 2009, Charles Branham
fatally stabbed Michael Kinross-Wright. Branham admitted
the stabbing but claimed that he acted in self-defense. A
Montana jury found Branham guilty of mitigated deliberate
homicide, and he was sentenced to 40 years of imprisonment
without eligibility for parole. The Montana Supreme Court
affirmed. State v. Branham, 269 P.3d 891, 897 (Mont. 2012).
Branham did not file a petition for a writ of certiorari in the
United States Supreme Court.
003 A
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4
BRANHAM V. STATE OF MONTANA
About 11 months after the time for filing a petition for a
writ of certiorari expired, Branham filed a petition for state
post-conviction relief, arguing that he had received
ineffective assistance of counsel. See Mont. Code Ann. § 4621-101 et seq. The state district court denied his petition, and
the Montana Supreme Court affirmed. Branham v. State,
390 P.3d 162 (Mont. 2017) (unpublished table decision).
About two weeks later, Branham filed an application for
review of his sentence by the Sentence Review Division of
the Montana Supreme Court. See Mont. Code Ann. § 46-18901 et seq. The Sentence Review Division affirmed the
sentence, concluding that it was neither “clearly inadequate
[n]or clearly excessive.”
More than six months later, Branham filed a petition for
a writ of habeas corpus in federal district court. He alleged
that both trial and appellate counsel were unconstitutionally
ineffective and that he was deprived of due process by
various procedural errors at trial and in post-conviction
proceedings.
A magistrate judge recommended that the petition be
dismissed as time barred. The magistrate judge applied 28
U.S.C. § 2244(d)(1), which provides that “[a] 1-year period
of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court.” As relevant here, the period begins to run upon
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” Id. § 2244(d)(1)(A). But the statute
also provides that “[t]he 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.” Id. § 2244(d)(2).
004 A
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BRANHAM V. STATE OF MONTANA
5
The magistrate judge determined that the statute of
limitations began to run after the expiration of the period for
seeking certiorari to review the Montana Supreme Court’s
2012 decision affirming Branham’s conviction. The
magistrate judge treated both Branham’s petition for postconviction relief and his application for review by the
Sentence Review Division as forms of “State postconviction or other collateral review,” which meant that the
statute of limitations was tolled during those proceedings.
Once the proceedings concluded, Branham had 23 days
remaining in which to file, but he did not file until several
months later, making his petition untimely.
The district court adopted the magistrate judge’s
recommendation and dismissed the petition. The court noted
that “[b]ecause Branham does not dispute [the] actual
calculation of the various dates involved, but rather disputes
when the statute of limitations period began, the narrow
issue is whether Montana’s [Sentence Review Division]
proceeding is a form of direct or collateral review.” The
court stated that our decision in Rogers v. Ferriter, 796 F.3d
1009 (9th Cir. 2015), “largely resolves the issue.” In the
court’s view, although the decision in Rogers “did not
directly address whether Montana’s [Sentence Review
Division] process is direct or collateral, it was a basic
assumption of the case that it was a collateral proceeding.”
The court added that because review in the Sentence Review
Division “may occur after a post-conviction review it is
necessarily collateral.”
The district court granted a certificate of appealability.
II
The timeliness of Branham’s habeas petition—and, thus,
the resolution of this appeal—depends on how to
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BRANHAM V. STATE OF MONTANA
characterize Montana’s Sentence Review Division
proceeding. If that proceeding is a form of “direct review”
under section 2244(d)(1)(A), then the one-year statute of
limitations began to run upon its conclusion, making
Branham’s petition timely. If it is instead a form of “State
post-conviction or other collateral review” under section
2244(d)(2), then the statute of limitations was tolled while
that proceeding was ongoing but did not reset upon its
conclusion, making Branham’s petition untimely.
Reviewing de novo, McMonagle v. Meyer, 802 F.3d 1093,
1096 (9th Cir. 2015) (en banc), we agree with the district
court that the proceeding is a form of collateral review.
At the outset, we conclude that our precedent does not
resolve the issue before us. The district court relied on our
decision in Rogers, in which we considered whether a
Sentence Review Division proceeding was “pending,” for
purposes of tolling under section 2244(d)(2), during the time
that the Sentence Review Division held it in abeyance so that
the petitioner could pursue state post-conviction relief.
796 F.3d at 1010. In describing the issue, we referred to the
Sentence Review Division as part of “Montana’s dual-track
system for collateral review of criminal sentences.” Id. Thus,
as the district court correctly observed, “a basic assumption”
of our decision was that a proceeding in the Sentence Review
Division was collateral. But no party in Rogers suggested
that the proceeding might constitute direct review, and the
issue of how to characterize it was not before us. “Judicial
assumptions concerning . . . issues that are not contested are
not holdings,” so the assumption reflected in Rogers is not
binding here. FDIC v. McSweeney, 976 F.2d 532, 535 (9th
Cir. 1992) (omission in original) (quoting United States v.
Daniels, 902 F.2d 1238, 1241 (7th Cir. 1990)); accord
Summers v. Schriro, 481 F.3d 710, 712–13 (9th Cir. 2007).
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7
Because our precedent does not answer the specific
question presented, we turn to more general guidance on the
difference between direct review and collateral review. The
Supreme Court has held that “‘collateral review’ means a
form of review that is not part of the direct appeal process.”
Wall v. Kholi, 562 U.S. 545, 552 (2011); see also id. (noting
that a “collateral attack” is “[a]n attack on a judgment in a
proceeding other than a direct appeal” (alteration and
emphasis in original) (quoting Black’s Law Dictionary (9th
ed. 2009))). To illustrate the distinction, the Court has
observed that “habeas corpus is a form of collateral review,”
as are coram nobis proceedings and proceedings under
28 U.S.C. § 2255. Id.
In Summers, a case that preceded Kholi, we noted that
section 2244(d) uses “the phrase ‘direct review’ rather than
the phrase ‘direct appeal,’” and we criticized the suggestion
that “the phrase ‘direct review’ excludes any form of review
that is not a ‘direct appeal.’” 481 F.3d at 713. On its broadest
reading, that language would be irreconcilable with the
statement in Kholi that “‘collateral review’ means a form of
review that is not part of the direct appeal process,” 562 U.S.
at 552, as well as with our subsequent en banc decision in
McMonagle, in which we said that “[i]t is when a direct
appeal becomes final that [the] 1-year statute of limitations
begins running,” 802 F.3d at 1098. But our holding in
Summers was much more limited: We held that the label a
State attaches to a proceeding is not controlling, and that
“direct review” includes a proceeding that, although not
called an “appeal,” is nevertheless “the functional equivalent
of a direct appeal.” 481 F.3d at 716 (quoting State v. Ward,
118 P.3d 1122, 1126 (Ariz. Ct. App. 2005)); see also Carey
v. Saffold, 536 U.S. 214, 223 (2002) (“[F]or purposes of
applying a federal statute that interacts with state procedural
rules, we look to how a state procedure functions, rather than
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the particular name that it bears.”). That holding is consistent
with Kholi and McMonagle, and it guides our analysis here.
A review of our cases and those of the Supreme Court
reveals three factors that are relevant to determining whether
a proceeding is functionally “part of the direct appeal
process” or is instead a form of collateral review. Kholi,
562 U.S. at 552.
First, we consider how the proceeding is characterized
under state law. Of course, “[b]ecause the question of what
constitutes direct review is intertwined with the question of
when a decision on direct review becomes final, it makes
sense to decide both questions by reference to uniform
federal law.” Summers, 481 F.3d at 714. And as we have
already explained, the label a State attaches to a proceeding
is not determinative. Id. But how the State “characterize[s]”
the proceeding “may affect” our analysis insofar as it
explains how the proceeding “functions in the [state]
criminal justice system.” Id.; see McMonagle, 802 F.3d at
1097 (“[W]e look to [state] law to determine when direct
review of a [state] conviction concludes.”).
Second, we consider the timing of the proceeding. In
assessing the finality of federal convictions, the Supreme
Court has explained that “[f]inality attaches” once the Court
“affirms a conviction on the merits on direct review or denies
a petition for a writ of certiorari, or when the time for filing
a certiorari petition expires.” Clay v. United States, 537 U.S.
522, 527 (2003). And “[i]n construing the similar language
of § 2244(d)(1)(A),” the Court has identified “no reason to
depart from this settled understanding, which comports with
the most natural reading of the statutory text.” Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009). That understanding
is important here because once finality attaches, “the
conclusion of direct review occurs.” Id.; see Gonzalez v.
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Thaler, 565 U.S. 134, 150 (2012). A distinguishing feature
of collateral review, therefore, is that it “necessarily follows
direct review.” Lopez v. Wilson, 426 F.3d 339, 351 (6th Cir.
2005) (en banc) (citation omitted).
In addition, direct review is generally “governed by
short, definite deadlines.” Summers, 481 F.3d at 717. That,
too, is a significant feature of direct review for purposes of
the federal habeas statute of limitations. The Supreme Court
has observed that the statute of limitations is aimed at
“safeguard[ing] the accuracy of state court judgments by
requiring resolution of constitutional questions while the
record is fresh, and lend[ing] finality to state court judgments
within a reasonable time.” Panetti v. Quarterman, 551 U.S.
930, 945 (2007) (quoting Day v. McDonough, 547 U.S. 198,
205–06 (2006)); see also Rhines v. Weber, 544 U.S. 269, 277
(2005). Those aims are achieved by using the completion of
direct review as the triggering event for the start of the
limitations period. By contrast, while direct review
“generally is constrained by tight, non-waivable time
limits,” the time limits governing collateral review “are
generally looser and waivable for good cause.” Lopez,
426 F.3d at 351 (citation omitted).
Third, we consider whether the proceeding takes the
place of an appeal in the State’s system. In Kholi, the Court
suggested that it could “imagine an argument” that the
proceeding at issue—a motion for a reduction of sentence
under Rhode Island Rule of Criminal Procedure 35—“is in
fact part of direct review” because it is the only opportunity
for defendants to “raise any challenge to their sentences.”
562 U.S. at 555 n.3. We applied similar reasoning in
Summers, concluding that a proceeding under Arizona Rule
of Criminal Procedure 32 is a form of “direct review”
because, for those defendants whose convictions rest on a
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guilty plea, the proceeding represents “the only means
available for exercising the constitutional right to appellate
review” under Arizona law. 481 F.3d at 716 (quoting
Montgomery v. Sheldon, 889 P.2d 614, 616 (Ariz. 1995));
see id. (“[A] Rule 32 proceeding is the appeal for a defendant
pleading guilty.” (emphasis in original) (quoting
Montgomery v. Sheldon, 893 P.2d 1281, 1282 (Ariz. 1995))).
A proceeding that substitutes for an appeal can be a form of
direct review even if it is not called an “appeal.”
III
With those principles in mind, we examine Montana’s
Sentence Review Division proceeding.
In Montana, the review of criminal sentences is
bifurcated. The Montana Supreme Court “reviews sentences
for legality—that is, whether the sentence is within the
parameters of the sentencing statute,” Jordan v. State,
194 P.3d 657, 661 (Mont. 2008), while the Sentence Review
Division is charged with reviewing “the inequity or disparity
of [a] sentence,” State v. Moorman, 928 P.2d 145, 149
(Mont. 1996). The Sentence Review Division consists of
three Montana district court judges designated by the Chief
Justice of the Montana Supreme Court. Mont. Code Ann.
§ 46-18-901(1). Anyone sentenced to a term of
imprisonment of one year or more may apply to the Sentence
Review Division to review the sentence. Id. § 46-18-903(1).
As we next explain, the state-law characterization of a
Sentence Review Division proceeding, the timing of the
proceeding, and the relationship of the proceeding to other
forms of review under Montana law all indicate that the
proceeding is a form of collateral review. That conclusion
comports with the decisions of courts that have examined
similar systems in other States.
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A
Montana law does not characterize a Sentence Review
Division proceeding as part of the direct review process.
First, Montana law provides that a petitioner seeking postconviction relief may not raise “grounds for relief that were
or could reasonably have been raised on direct appeal.”
Mont. Code Ann. § 46-21-105(2). The Montana Supreme
Court has held that “an application for review of the
sentence” by the Sentence Review Division is not a direct
appeal for purposes of that statute. Moorman, 928 P.2d
at 150. In reaching that conclusion, the court “explained the
difference between an application to the Sentence Review
Division and a direct appeal,” emphasizing the limited
nature of the Division’s review. Id. at 149. Moorman
demonstrates that Montana considers sentence review to be
distinct from the direct review process.
Second, the Montana post-conviction relief statute
provides that a decision becomes “final” for purposes of
computing the deadlines for seeking relief “when the time
for appeal to the Montana supreme court expires,” or, “if an
appeal is taken to the Montana supreme court,” when the
deadline for filing a petition for a writ of certiorari to the
United States Supreme Court expires or when the United
States Supreme Court issues its final order. Mont. Code Ann.
§ 46-21-102(1). The statute does not mention the Sentence
Review Division. The Montana Supreme Court has therefore
held that a conviction becomes “final” when the “time for
appeal [to the Montana Supreme Court] expire[s],” despite a
defendant’s later application to the Sentence Review
Division. Sanchez v. State, 86 P.3d 1, 3 (Mont. 2004); see id.
at 1–2 (distinguishing between a “direct appeal” to the
Montana Supreme Court and “sentence review” by the
Division).
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Branham challenges that interpretation of Montana law.
He relies on a statement by the Montana Supreme Court in
Ranta v. State, 958 P.2d 670, 678 (Mont. 1998), that “[w]ere
the legislature to abolish the review division, the function of
reviewing sentences on equitable grounds would . . . return
to [the Montana Supreme] Court.” But simply because the
Montana Supreme Court reviewed equitable challenges to
sentences in the past—and could potentially do so again in
the future—does not change the reality that, at present, a
prisoner must raise those challenges in a separate forum.
Branham also points to Ranta’s holding that the Montana
Constitution gives a prisoner a right to counsel in the
Sentence Review Division. See 958 P.2d at 676–77. But the
Montana Supreme Court based that holding on its view that
sentence review is “a critical stage of the proceedings against
a defendant.” Id. at 674. It expressly declined to hold that it
“constitutes a first appeal provided as a matter of right.” Id.
at 677. Under Montana law, the proceeding is not a direct
appeal.
B
The deadlines to apply for review by the Sentence
Review Division also suggest that that proceeding is
appropriately characterized as a form of collateral review. A
prisoner seeking sentence review must apply within 60 days
of the date the sentence was imposed, of the determination
of an appeal to the Montana Supreme Court, or of the
determination of a petition for post-conviction relief,
whichever is latest. Mont. Code Ann. § 46-18-903(1); Mont.
Sentence Rev. Div. R. 2. In addition, if the prisoner is unable
to meet those deadlines and can show cause, the Sentence
Review Division may “consider any late request for review
of sentence and may grant or deny the request.” Mont. Code
Ann. § 46-18-903(3); Mont. Sentence Rev. Div. R. 7.
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BRANHAM V. STATE OF MONTANA
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The timing rules are significant for two reasons. First, a
prisoner can seek review by the Sentence Review Division
after seeking Montana post-conviction relief, which
everyone agrees is a form of collateral review. That alone
suggests that sentence review is a form of collateral review.
Collateral review, after all, “necessarily follows direct
review.” Lopez, 426 F.3d at 351 (citation omitted). Indeed,
we are aware of no form of direct review that takes place
after collateral review.
Second, as we observed in Summers, direct review is
generally “governed by short, definite deadlines.” 481 F.3d
at 717. Because sentence review need not begin until after
the conclusion of a direct appeal and a petition for postconviction relief, it can take place years after conviction,
even without the exercise of the Sentence Review Division’s
broad authority to “consider any late request.” Mont. Code
Ann. § 46-18-903(3). Such permissive deadlines are a
characteristic of collateral review, not direct review.
C
A Sentence Review Division proceeding does not take
the place of an appeal under Montana law. To the contrary,
a Montana prisoner who wishes to challenge the legality of
a sentence has two alternatives to review by the Sentence
Review Division. First, a prisoner can directly appeal to the
Montana Supreme Court to challenge the constitutionality or
legal sufficiency of the sentence. See, e.g., State v. Wardell,
122 P.3d 443, 448–49 (Mont. 2005) (reviewing on direct
appeal whether a sentence was “so disproportionate” or
“excessive” that it violated the Eighth Amendment’s
prohibition against cruel and unusual punishment). Second,
a prisoner may seek post-conviction relief. Mont. Code Ann.
§ 46-21-101(1). Although post-conviction relief “is not
available to attack the validity of the . . . sentence,” id. § 46-
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22-101(2), the Montana Supreme Court has held that “an
individual incarcerated pursuant to a facially invalid
sentence” nonetheless “ha[s] the ability to challenge its
legality,” including, “for example, a sentence which either
exceeds the statutory maximum for the crime charged or
which violates [a] constitutional right.” Lott v. State,
150 P.3d 337, 342 (Mont. 2006).
Branham observes that a Sentence Review Division
proceeding is “the only opportunity a criminal defendant has
to challenge an otherwise lawful sentence on equitable
grounds.” Ranta, 958 P.2d at 676 (emphasis added). He adds
that he “could not have exhausted his state court remedies”
without pursuing sentence review. But precisely because
sentence review is limited to examining “the inequity or
disparity of [a] sentence”—and “does not review errors of
law”—it is unclear whether any claim advanced in the
Sentence Review Division would even be cognizable on
federal habeas review. Moorman, 928 P.2d at 149. In any
event, “exhaustion and finality are distinct concepts,” and
sometimes exhaustion can require pursuing collateral
review. McMonagle, 802 F.3d at 1098; see Burger v. Scott,
317 F.3d 1133, 1138 (10th Cir. 2003) (“Congress did not
draft the federal limitations period to begin running only at
the end of a particular state’s exhaustion process.”). In
addition, to the extent that sentence review is equitable in
nature, it resembles habeas corpus, which “is, at its core, an
equitable remedy,” Schlup v. Delo, 513 U.S. 298, 319
(1995), and which is also the archetypal example of
collateral review, Kholi, 562 U.S. at 552.
D
Although we have found no decision addressing a state
procedure precisely like Montana’s sentence review, our
conclusion is consistent with the decisions of other courts
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BRANHAM V. STATE OF MONTANA
15
that have examined similar state proceedings in which a
prisoner can challenge the length of a sentence. When such
a proceeding results in the vacatur of the sentence and
imposition of a new sentence, then the statute of limitations
will run anew from the imposition of the new judgment. See
Magwood v. Patterson, 561 U.S. 320, 323–24 (2010); Smith
v. Williams, 871 F.3d 684, 685–86 (9th Cir. 2017). But when
it does not, the proceeding is generally characterized as
collateral review and does not restart the limitations period.
See, e.g., Mitchell v. Green, 922 F.3d 187, 195–98 (4th Cir.
2019) (“[A] Maryland Rule 4-345 motion to reduce sentence
‘is not part of the direct review process.’” (quoting Kholi,
562 U.S. at 555)); Rogers v. Secretary, Dep’t of Corr.,
855 F.3d 1274, 1277 (11th Cir. 2017) (holding that a Florida
Rule 3.800(c) motion to correct or reduce sentence “is an
application for collateral review”); Bridges v. Johnson,
284 F.3d 1201, 1202 (11th Cir. 2002) (“[A]n application for
sentence review is not a part of the direct appeal process
under Georgia law.”). We are aware of no authority treating
a procedure similar to Montana’s as a form of direct review
that restarts the statute of limitations under section 2244(d).
AFFIRMED.
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APPENDIX C
FILED
MAY 2 ·1 2019
Clefk. U.S. D1strid Court
Olstrid Of Montana
Mles<>Ula
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CHARLES IVAN BRANHAM,
Cause No. CV 18-59-M-DLC-JCL
Petitioner,
vs.
FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE WDGE
STATE OF MONTANA, ET AL.,
Respondents.
This matter comes before the Court on Charles Ivan Branham's application
for a writ of habeas c.orpus pursuant to 28 U.S.C. § 2254 and brief in support. See,
(Docs. 1 & 11.) Branham is a state prisoner represented by counsel.
Branham filed the present petition on March 21, 2018. (Doc. 1.) Branham
asserts his petition is timely because he believes it was filed within one-year of the
date his conviction became final. Id. at 5-6. Respondents were directed to file an
Answer. (Doc. 2.) In their Answer, Respondents asserted a statute of limitations
defense, arguing Branham's petition was filed more than six-months past the
federal filing deadline. (Doc. 16 at 37-42.) Despite being provided the
opportunity to do so, Branham has not submitted a reply to either dispute the
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allegation of untimeliness or provide a basis to excuse his purportedly late filing.
I.
Procedural History
On January 5, 2010, Branham was charged with Deliberate Homicide in
Montana's Fourth Judicial District, Missoula County, for the stabbing death of
Michael Kinross-Wright. Fallowing a July 2010 trial, the jury returned a verdict
finding Branham guilty of the lesser-included offense of Mitigated Deliberate
Homicide. On October 5, 2010, Branham was sentenced to the Montana State
Prison for 40 years without the possibility of parole. See, Judg. (Doc. 5 at 126129.) Written judgment was entered on October 22, 2010. Id. at 129.
On December 16, 2010, the Office of the Appellate Defender timely filed a
Notice of Appeal on Branham's behalf. See, Not. (Doc. 6 at 8-10.) Branham's
opening brief was filed on July 6, 2011. Branham argued (1) the district court
erred by refusing to admit character evidence of Kinross-Wright's propensity for
violence; (2) the conviction should be reversed due to prosecutorial misconduct;
and, (3) the sentence imposed was illegal. See, Br. Appellant (Doc. 6 at 22-37.)
On January 3, 2012, the Montana Supreme Court issued its decision
affirming Branham's conviction and sentence, State v. Branham, 2012 MT 1,363
Mont. 281, 269 P. 3d 891. See also, (Doc. 6 at 95-106.) Branham did not file a
petition for writ of certiorari with the United States Supreme Court.
On February 28, 2013, Branham, through counsel, filed his petition for
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Postconviction Relief (PCR). See, PCR Pet. (Doc. 7 at 8-37.) Branham filed an
Amended PCR petition on January 24, 2014. Branham challenged the
effectiveness of both trial and appellate counsel. See, Am. Pet. (Doc. 7 at 40-63 ).
On May 7, 2015, the state district court entered its order dismissing Branham's
PCR petition without holding an evidentiary hearing. See, Or. (Doc. 8 at 8-49.)
The district court determined Branham' s claims either failed on procedural
grounds for failing to demonstrate by a preponderance of the evidence that the
facts supported relief or were barred because the claim(s) could have been raised
on direct appeal.
On June 3, 2015, Branham timely filed a Notice of Appeal from the
dismissal of his PCR petition. On March 7, 2017, the Montana Supreme Court in a
non-cite memorandum opinion affirmed the denial ofBranham's PCR petition.
(Doc. 8 at 135-142.)
On March 20, 2017, Branham filed his application for review of his sentence
with the Montana Sentence Review Division (SRO). (Doc. 16-15.) On August 25,
2017, the SRO issued its decision affirming Branham's sentence. (Doc. 16-16.)
Branham filed his petition with this Court on March 21, 2018. (Doc. 1.)
II.
Branham's Claims
Branham alleges he was denied effective assistance of counsel, because trial
counsel failed to: (1) understand the defense, (Doc. 1 at 8-9); (2) perform an
3
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adequate pretrial investigation, id. at 9-1 O; (3) present defense witnesses, id. at 1O;
(4) present expert testimony, id. at 10-13; (4) object to various arguments advanced
by the prosecution, id. at 13-14; and, (5) make an offer of proof, id. at 14-15.
Branham also asserts appellate counsel was ineffective for misstating the evidence
on appeal. / d. at 15.
Additionally, Branham claims his right to due process was violated by: (1)
the trial court's refusal to admit evidence tending to show Kinross-Wright's
propensity for violence, id. at 16-17; (2) the improper merging of his criminal case
with his ongoing dependency and neglect proceedings, id. at 17; (3) the
postconviction courts' refusal to hold an evidentiary hearing, id. at 18; (4)
prosecutorial misconduct during closing argument, id. at 18; and, ( 5) the Gillham
order 1 issued to trial counsel, id. at 18-19.
III.
Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§2244, applies to all federal habeas petitions filed after April 24, 1996. Woodford
v. Garceau, 538 U.S. 202,204 (2003)(citing Lindh v. Murphy, 521 U.S. 320,326
(1997). AEDPA "sets a one-year limitations period in which a state prisoner must
1
The Gillham order derives from In re Gillham, 216 Mont. 279, 282, 704 P. 2d 1019, 1021
( 1985). The rule from Gillham provides that- if a convicted person files a postconviction petition
alleging ineffective assistance of counsel, the court may order the attorney to respond to the
allegation(s). The order protects the attorney from discipline or malpractice claims for
potentially revealing necessary confidential information obtained from representing the
convicted person. See also, State v. Stone, 2017 MT 198, fn. 1, 388 Mont. 239,400 P. 3d 692.
4
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file a federal habeas corpus petition." Thompson v. Lea, 681 F. 3d 1093, 1093 (9th
Cir. 2012)(citations omitted); see also, 28 U.S.C. § 2244(d)(l). The purpose of
"
AEDPA's one-year limitations period is to "encourage prompt filings in federal
court in order to protect the federal system from being forced to hear stale claims."
Carey v. Saffold, 536 U.S. 214,226 (2002).
Under federal procedure, the statue of limitations is an affirmative defense
that must be raised in a responsive pleading. Fed. R. Civ. Proc. Rule 8(c)(l).
Under federal habeas rules, a respondent must assert a statute of limitations
defense in the responsive pleading or it is waived. Rule 5(b) of the Rules
Governing §2254 cases; Morrison v. Mahoney, 399 F. 3d 1042, 1046-47 (9th Cir.
2005). It is appropriate to dismiss a federal petition for writ of habeas corpus with
prejudice when it was not filed within AEDPA's one-year statute of limitations.
Jiminez v. Rice, 276 F. 3d 478, 482-83 (91h Cir. 2001). Thus, the statute of
limitations is a threshold issue that courts may resolve before the merits of
individual claims. See, White v. Klitz/de, 281 F. 3d 920, 921-22 (9th Cir. 2002); see
also, Lambrix v. Singletary, 520 U.S. 518,525 (1997)("We do not mean to suggest
that the procedural bar-issue must invariably be resolved first; only that it
ordinarily should be.") Or, put another way, reviewing the merits of a petition
without first addressing an affirmative defense is an exception to the usual practice,
-r;,
kl·m v.
unless the petition on its face is clearly not meritorious. See e ..
g , rran
5
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Johnson, 290 F. 3d 1223, 1323 (9th Cir. 2002); Day v. McDonough, 541 U.S. 198,
208-09 (2006).
As set forth below, Branham' s petition is time-barred without excuse and,
accordingly, should be dismissed with prejudice.
Timeliness of Petition
Absent a reason to apply one of the other "trigger" dates in 28 U.S.C.
§ 2244(d)(l), 2 Branham's federal petition had to be filed within one year of the
date his conviction became final. 28 U.S.C. § 2244(d)(l){A). On January 3, 2012,
the Montana Supreme Court confirmed Branham's conviction and sentence.
Branham did not petition for a writ of certiorari, therefore, review on direct appeal
was complete when the 90-day period for seeking such review concluded. Bowen
v. Roe, 188 F. 3d 1157, 1159 (9th Cir. 1999); 28 U.S.C. § 2244(d)(l)(A). Thus,
Branham's judgment became final on April 3, 2012. The one-year limitations
period commenced on April 4, 2012, and expired one year later, absent applicable
periods of tolling. See, Patterson v. Stewart, 251 F. 3d 1243, 1245-47 (9th Cir.
2001)(the limitations period begins to run on the day after the triggering event
2
The limitations period under 2244(d)(l) is triggered and begins to run from the latest of: (A)
the date on which the underlying judgment became final through either the conclusion of direct
review or the expiration of the time for seeking such review; (B) the date on which any
impediment to the filing of a federal petition created by unconstitutional state action is removed;
(C) the date on which a newly recognized and retroactively applicable constitutional right was
first recognized by the United States Supreme Court; or (D) the date on which the factual
predicate underlying a claim could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(l)(A)-{D).
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pursuant to Fed. R. Civ. P. 6(a)).
i.
Statutory Tolling
The one-year limitations period is subject to statutory tolling during the time
in which a "properly filed" application for post-conviction or other collateral relief
is pending in the state court. 28 U.S.C. § 2244(d)(2); Nino v. Galaza, 183 F. 3d
1003, 1006 (9th Cir. 1999)(explaining an application for collateral review is
pending in state court for "all the time during which a state prisoner is attempting,
through proper use of state court procedures, to exhaust state remedies with regard
to particular post-conviction proceedings."). Branham filed his PCR petition in the
state district court on February 28, 2013. Between Branham's judgment becoming
final and the filing of his PCR petition, 330 days had elapsed on Branham's federal
filing time clock, but the filing of the PCR petition tolled the federal limitations
statute. 3 Branham is not entitled to statutory tolling for any of this time, between
the date on which his judgment became final and the date on which he filed his
first state collateral challenge, because there was no case "pending." Id.
Following the dismissal of his PCR petition, Branham timely appealed. As
set forth above, the Montana Supreme Court denied Branham's appeal on March 7,
2017. His federal timeclock began running again the following day. On March 20,
3
_Thus, at the time of the filing of the PCR petition, Branham had 35 days remaining in which to
timely file his federal petition.
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2017, Branham filed his application with the SRD. That filing tolled the
limitations period; but another 12 days had passed. Thus, at the time of his SRD
filing, Branham had 23 days remaining in which to file his federal habeas petition.
As set forth above, the SRD entered its order affirming Branham' s sentence
on August 25, 2017. Accordingly, with Branham's federal filing clock re-initiated
on August 26, 2017, he should have filed in this Court on or before Monday,
September 18, 2017. But, Branham did not file in this Court until March 21, 2018,
more than 184 days too late.
ii.
Equitable Tolling
The limitations period may be equitably tolled because it is a statute of
limitations, not a jurisdictional bar. Hollandv. Florida, 560 U.S. 631,645 (2010).
A petitioner is entitled to equitable tolling, however, only if he demonstrates: "( 1)
that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing." Pace v. DiGuglielmo,
544 U.S. 408,418 (2005)); see also Miles v. Prunty, 187 F. 3d 1104, 1107 (9th Cir.
1999)("When external forces, rather than a petitioner's lack of diligence, account
for the failure to file a timely claim, equitable tolling of the statute of limitations
may be appropriate.") The petitioner bears the burden of showing that this
"extraordinary exclusion" should apply and the requirements are "very high, lest
the exceptions swallow the rule." Miranda v. Castro, 292 F. 3d 1963, 1065-66 (91h
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Cir. 2002); see also Waldron Ramsey v. Pacholke, 556 F. 3d 1008, 1011 (9th Cir.
2009)(characterizing the Circuit's application of equitable tolling doctrine as
"sparing" and a "rarity.") Additionally, a petitioner must establish a "causal
connection" between the extraordinary circumstance and his failure to file a timely
petition. Bryant v. Arizona Attorney General, 499 F. 3d 1056, 1060 {91h Cir.
2007).
But Branham did not respond to Respondent's asserted statute of limitations
defense. He has not argued that equitable tolling should apply in his case nor has
he put forward any facts in his petition that would explain his delay in filing.
Branham has not met his burden of establishing that he has been pursuing his
rights diligently and that his failure to timely file was the result of extraordinary
circumstances beyond his control. See e.g., Holland, 560 U.S. at 649.
iii.
Actual Innocence
A "credible claim of actual innocence constitutes an equitable exception to
AEDPA's one-year limitations period." McQuiggin v. Perkins, 569 U.S. 383,386
(2013); Lee v. Lampert, 653 F. 3d 929, 932 (9th Cir. 2011 ). "[A]ctual innocence, if
proved, serves as a gateway through which a petitioner may pass whether the
impediment is a procedural bar or ... expiration of the statute of limitations."
McQuiggin, 569 U.S. at 386. A habeas petitioner must offer "new reliable
evidence- whether it be exculpatory scientific evidence, trustworthy eyewitness
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accounts, or critical physical evidence." Schlup v. Delo, 513 U.S. 298,324 (1995).
But here, Branham has not argued that he is actually innocent, nor has he presented
this Court with "new credible evidence" that he is innocent of the crime of which
he was convicted. Because Branham has not made the requisite showing, the
actual innocence doctrine does not excuse his untimely filing.
iv.
Conclusion
The Court has determined Branham's petition was over six months
delinquent. Branham has failed to provide any reason to support additional
statutory tolling. Likewise, he has not established a basis for the application of
equitable tolling or the actual innocence gateway. Consequently, the petition
should be dismissed with prejudice as untimely.
v.
Certificate of Appealability
"The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant." Rule 11 (a), Rules Governing § 2254
Proceedings. A COA should issue as to those claims on which the petitioner
makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). The standard is satisfied if 'jurists of reason could disagree with the
district court's resolution of [the] constitutional claims" or "conclude the issues
presented are adequate to deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473,484
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(2000)).
Branham has not made a substantial showing that he was deprived of a
constitutional right. Moreover, his petition is untimely. Thus, reasonable jurists
would find no basis to encourage further proceedings in this Court. A certificate of
appealability should be denied.
Based on the foregoing, the Court makes the following:
RECOMMENDATION
I. The Petition (Doc. 1) should be DISMISSED with prejudice as time-barred
without excuse.
2. The Clerk of Court should be directed to enter by separate document a
judgment in favor of Respondents and against Petitioner.
3. A certificate of appealability should be DENIED.
NOTICE OF RIGHT TO OBJECT
TO FINDINGS & RECOMMENDATION
AND CONSEQUENCES OF FAILURE TO OBJECT
Mr. Branham may object to this Findings and Recommendation within 14
days. 28 U.S.C. § 636(b)(l). Failure to timely file written objections may bar a de
novo determination by the district judge and/or waive the right to appeal.
Mr. Branham must immediately notify the Court of any change in his mailing
address by filing a "Notice of Change of Address." Failure to do so may result in
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dismissal of his case without notice to him.
DATED this 21st day of May, 2019.
Isl Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge
12
035 C
APPENDIX D
28 USCS § 2244
Current through PL 115-128, approved 2/22/18
United States Code Service - Titles 1 through 54 > TITLE 28. JUDICIARY AND JUDICIAL
PROCEDURE > PART VI. PARTICULAR PROCEEDINGS > CHAPTER 153. HABEAS CORPUS
§ 2244. Finality of determination
(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire
into the detention of a person pursuant to a judgment of a court of the United States if it appears that the
legality of such detention has been determined by a judge or court of the United States on a prior
application for a writ of habeas corpus, except as provided in section 2255 [28 USCS § 2255].
(b)
(1) A claim presented in a second or successive habeas corpus application under section 2254 [28 USCS §
2254] that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 [28 USCS §
2254] that was not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)
(i) the factual predicate for the claim could not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district court to
consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or
successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it
determines that the application makes a prima facie showing that the application satisfies the
requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or successive application
not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals to file a second or successive
application shall not be appealable and shall not be the subject of a petition for rehearing or for a
writ of certiorari.
(4) A district court shall dismiss any claim presented in a second or successive application that the court of
appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements
of this section.
(c) In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the judgment of a State
court, a prior judgment of the Supreme Court of the United States on an appeal or review by a writ of
036 D
28 USCS § 2244
certiorari at the instance of the prisoner of the decision of such State court, shall be conclusive as to all
issues of fact or law with respect to an asserted denial of a Federal right which constitutes ground for
discharge in a habeas corpus proceeding, actually adjudicated by the Supreme Court therein, unless the
applicant for the writ of habeas corpus shall plead and the court shall find the existence of a material and
controlling fact which did not appear in the record of the proceeding in the Supreme Court and the court
shall further find that the applicant for the writ of habeas corpus could not have caused such fact to appear
in such record by the exercise of reasonable diligence.
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the
Constitution or laws of the United States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.
(2) 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.
(June 25, 1948, ch 646,62 Stat. 965; Nov. 2, 1966, P.L. 89-711, § 1, 80 Stat. 1104; April 24, 1996, P.L. 104-132,
Title I, §§ 101, 106, 110 Stat. 1217, 1220.)
037 D
APPENDIX E
STATE OF MONTANA
SENTENCE REVIEW DIVISION OF THE SUPREME COURT
RULES
In accord with Title 46, Chapter 18, Part 9 of the Montana Code Annotated, the Sentence
Review Division of the Supreme Court (hereinafter Division) hereby adopts the following rules
which supersede all previous rules.
RULE 1.
The Clerk of District Court (hereinafter Clerk) shall serve upon persons
who have been sentenced to a term of 1 year or more in the State prison or to the custody of the
Department of Corrections:
1) A copy ofthe Sentence and Judgment
2) Notice of the Right to Apply for Sentence Review
3) Two copies of the Application for Sentence Review
Forms shall be approved by the Division.
RULE2.
Within sixty (60) days after sentence was imposed, a defendant may apply
for the sentence to be reviewed by the Division.
. •: if an appeal to the Supreme Couit or petition for post conviction relief is filed, the 60 day
period co~~~ti6~s when the appekl or petition is c'oiiiplete. ·
. ·· Application ror review of ;erttence doesrtoi sta/executiori o'f tlie sentence.·
RULE3.
The Division shall not consider issues which could have been or should
have been addressed in District Court by appeal or post conviction relief.
RULE 4.
Application for Sentence Review shall be filed with the Clerk for the
county from which the defendant was sentenced. In the event the defendant has been sentenced
in more than one county, separate applications shall be filed with each Clerk if defendant
requests each sentence to be reviewed.
RULES.
Upon filing the application for Sentence Review, the Clerk shall complete
and file the Clerk's certificate of service and shall within ten (10) business days, serve a copy of
the Application for Sentence Review upon the Judge who imposed the sentence, the County
Attorney of the County from which the defendant was sentenced artd defertdarit's counsel of
rec6~c1. the cr~rk sh~ll m~l1 the &tiginal ce1tificate of Ser~ice and deliver all required
documents to thfSecretar.{for tlieDivisi.cm (hetehiafter Secretai·y): ·. ·
038 E
RULE6.
Defendant, the State, and the sentencing Judge may file briefs
within 30 days after notice of the application for review is served by the Clerk.
RULE 7.
The Secretary shall record the date the application for review was
received by the Clerk. If the application is untimely, the Secretary shall promptly notify
the defendant to file within thirty (30) days a statement of reasons why the Division
should hear a late application. The Division will review late applications only upon good
cause shown.
RULES.
The Secretary shall serve notice of the time and place for Review
at least thirty (30) days before such hearing to each of the following:
I) The Judge who imposed the sentence;
2 ) The County Attori1ey for the county from Which the defendant was
sentenced;
3) The defendant;
4) The defendant's attorney of record;
5) Any other person who has requested notice.
RULE9.
Proceedings shall be informal to the extent possible. The Rules of
Evidence do not apply.
RULE 10.
The defendant shall have the right to appear and to be represented
by counsel.
RULEll.
The Secretary shall provide to the Division from the District Court
file such documents as the Division may require.
The Division shall consider only information which was available to the
sentencing Judge at the time of sentencing.
RULE 12.
The sentence imposed by the District Court is presumed correct.
The sentence shall not be reduced or increased unless it is clearly inadequate or clearly
excessive.
RULE 13.
The Secretary shall file the original decision of the Division with
the Clerk where defendant was sentenced and mail copies of the decision to:
I) The Judge who imposed sentence;
2) The County Attorney;
3) The criminal history repository of the Montana Department of Justice;
4) The defendant;
5) The defendant's attorney ifrepresented by counsel;
6) The principal officer of the institution where defendant is incarcerated.
039 E
•
RULE 14.
A record of proceedings before the Division shall be made by
recording or otherwise and shall be retained for two years after a written decision is
rendered.
RULE 15.
Without convening the entire Division, the Presiding Officer may
rule on procedural issues not affecting the substance of a review.
·
These rules are effective the
frv
:?I__ day of October, 2013.
SENTENCE REVIEW DIVISION
Member, Hon. Bradley G. Newman
040 E
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.