United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge United States District Court
matters are pending before the Court: (1) United States
Magistrate Judge Jeremiah C. Lynch's Findings and
Recommendation (Doc. 21); (2) Branham's Request for Oral
Argument (Doc. 24); and (3) Branham's Motion for Leave to
File First Amended Petition (Doc. 25). For the reasons
explained below, the Court will adopt Judge Lynch's
recommendation in part. The Court agrees that Branham's
claim is barred by the statute of limitations, but it will
grant Branham's request for a certificate of
appealability. The Court will deny both other motions.
21, 2019 Judge Lynch recommended that Branham's petition
be dismissed with prejudice as time-barred without excuse.
(Id) Branham timely objected to the Findings and
Recommendation, and is entitled to de novo review of those
findings to which he specifically objects. 28 U.S.C. §
636(b)(1)(C). The Court reviews for clear error those
findings to which no party objects. United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003); Thomas v. Am, 474 U.S. 140, 149 (1985). Clear
error exists if the Court is left with a "definite and
firm conviction that a mistake has been committed."
United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000) (citations omitted).
raises three objections to the Findings and Recommendation.
First, he argues that the statute of limitations issue should
be resolved by motion, or alternatively, after the Court
orders full briefing of the issue. (Doc. 22 at 7-11.) Next,
he argues that his petition is timely because the statute of
limitations did not begin to run until the Sentence Review
Division's ("SRD") proceeding was complete.
(Id. at 12-23.) Finally, he argues that the
Magistrate Judge erred in denying a certificate of
appealability. (Id. at 23-24.) The Court will
address each argument below.
first objection is procedural. He argues the Court should not
dismiss his petition without first providing the opportunity
for full briefing of the matter. He contends that the Federal
Rules of Civil Procedure control and this matter ought to be
resolved by a motion to dismiss or motion for summary
judgment. Alternatively, he argues that the Could should
order additional briefing as it has in previous cases in the
form of a show cause order. (Doc. 22 at 7-11.)
State responds that additional briefing is not required
because Branham has had adequate opportunity to address this
issue. The State argues that Branham could have raised the
issue more thoroughly in his initial petition, which had no
page limit. Alternatively, Branham could have addressed the
issue in an optional reply brief after the State filed its
Answer, which he did not do. Additionally, the State asserts
that Branham is not entitled to show cause under Ninth
Circuit law. (Doc. 23 at 5-6.)
Court agrees with the State that it is not required to issue
a Show Cause Order. The Ninth Circuit has clearly held that a
court is only required to provide a petitioner with an
opportunity to respond to a statute of limitations dismissal
when the Court raises the issue sua sponte. Herbst v.
Cook, 260 F.3d 1039, 1043 (9th Cir. 2001). Here, the
Court did not raise the issue sua sponte. The State raised
the issue and Branham had an opportunity to file a reply
brief but did not do so. Branham argues that a reply would
not have provided a meaningful opportunity to address this
claim because replies are limited to ten pages by local rule
and the State raised many defenses in its Answer. (Doc. 22.
at 10.) However, Branham could have asked the Court for
permission to file an overlength brief, as he did for the
brief in support of his petition. (Doc. 12.) Branham also
claims that he did not file a reply because he believed he
would have another opportunity to address his legal
contentions in response to a motion. However, his concern is
immaterial because Branham did brief the issue in
his objections. This has allowed the Court to give his
arguments due consideration. The Court will not grant
additional briefing on this matter but will instead turn to
the substance of his argument.
claims that his petition is timely because the clock on his
federal habeas claim did not begin to run until the SRD
issued its final order, which, if true, would mean that
Branham filed his federal habeas petition with 164 days to
spare. (Doc. 22 at 12-23.) The State agrees with Judge
Lynch's determination that the petition is not timely
because the SRD's proceedings are a form of collateral
review, making his claim 184 days too late. (Doc. 21 at 8.)
The characterization of the SRD's proceedings as either
direct or collateral is significant because the Antiterrorism
and Effective Death Penalty Act ("AEDPA"), which
now governs federal habeas claims, provides for a one-year
statute of limitations period that commences from "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). Because Branham
does not dispute Judge Lynch's actual calculation of the
various dates involved, but rather disputes when the statute
of limitations period began, the narrow issue is whether
Montana's SRD proceeding is a form of direct or
Ninth Circuit's decision in Rogers v. Ferriter,
796 F.3d 1009, 1010 (9th Cir. 2015) largely resolves the
issue. In Rogers, the court held that review by the
SRD tolled AEDPA's one-year statute of limitations.
Id. Though the Ninth Circuit did not directly
address whether Montana's SRD process is direct or
collateral, it was a basic assumption of the case that it was
a collateral proceeding. See Id . In fact, the
court's explanation of Montana's bifurcated review
process is oriented under a heading entitled "Collateral
Review in Montana." Id.
another way, the Ninth Circuit has instructed that a case
becomes "final" for purposes of AEDPA's
one-year statute of limitations ninety days (the period with
which to file certiorari) after the date of entry of judgment
from the state's highest court. Bowen v. Roe,
188 F.3d 1157, 1159 (9th Cir. 1999). This would indicate that
any review that could be conducted 90 days after entry of
judgment from the state's highest court would qualify as
collateral review under AEDPA. A petition for review by
Montana's SRD is timely so long as it is filed within 60
days of the sentence imposed, or 60 days of the entry of
judgment on direct appeal or post-conviction review.
Rogers, 796 F.3d at 1011. Because the SRD's
review may occur after a post-conviction review it is
additional arguments raised by the State in response to
Branham's objections provide compelling justification for
the Court to determine that the SRD's proceedings are
collateral. While Ninth Circuit law points in the same
direction, the Court nevertheless recognizes that the Ninth
Circuit has not clearly ruled on this issue. ...