E.D. Pa. Reviews Circuit Split Re Equitable Tolling of Habeas Petitions for Prisoners with Actual Innocence Claims

Per Ragan v. Horn, 2009 WL 323107 (E.D. Pa. Feb 10, 2009):

Ragan also argues that his claim of actual innocence forms a basis for a grant of equitable tolling. The Circuits are split on this issue.[FN6] The Circuits that have not yet ruled on the issue, including the Third Circuit, have deferred ruling on the issue until presented with a "proper case" (i.e., a case with a viable claim of actual innocence). See e.g., Knecht v. Shannon, 132 Fed.Appx. 407, 409 (3d Cir.2005) (not precedential) ("[U]nless we accept Knecht's argument that he is 'actually innocent,' and that equitable tolling is therefore warranted, we must affirm the dismissal of his petition as untimely."); Hussman v. Vaughn, 67 Fed. Appx. 667 (3d Cir.2003) (not precedential) (declining to address whether a claim of actual innocence could toll the statute of limitations where petitioner did not have a viable claim of actual innocence); See also Horning v. Lavan, 197 Fed. Appx. 90, 94 (3d Cir.2006) (not precedential) (indicating that even if it were to permit equitable tolling based on a viable claim of actual innocence, the petitioner would still have to show reasonable diligence in pursuing his actual innocence claim).[FN7] Therefore, I must determine if Ragan has a viable claim of actual innocence before ruling on the equitable tolling issue.

[FN6] See Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005) (holding that a petitioner who can demonstrate actual innocence "should be allowed to pass through the gateway and argue the merits of his underlying constitutional claims."); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir.2002) (holding that an actual innocence claim could justify equitable tolling where there was "some action or inaction on the part of the respondent that prevented him from discovering the relevant [exculpatory] facts in a timely fashion, or, at the very least, that a reasonably diligent petitioner could not have discovered these facts in time to file a petition within the period of limitations."); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) ("Equitable tolling would be appropriate, for example, when a prisoner is actually innocent."). But see Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.2005) ("Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action."); David v. Hall, 318 F.3d 343, 347 (1st Cir.2003) (holding that petitioners "who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming"); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.2000) (holding that a claim of actual innocence would not constitute a "rare and exceptional" circumstance which would justify the equitable tolling of the limitations period).

[FN7] The Third Circuit is joined by the Second, Ninth, and Eleventh Circuits in reserving ruling on this issue until presented with a showing of actual innocence. See Whitley v. Senkowski, 317 F.3d 223 (2d Cir.2003) ("The constitutionality of the AEDPA's statute of limitations if applied to a claim of actual innocence is an open question today."); Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.2002) (remanding to the district court to determine whether a claim of actual innocence as defined under Schlup had been established before addressing "what consequences such a finding has with respect to AEDPA's one-year statue of limitation"); Wyzykowski v. Dept. of Corrections, 226 F.3d 1213, 1218 (11th Cir.2000) ("[T]he factual issue of whether the petitioner can make a showing of actual innocence should be first addressed, before addressing the constitutional issue of whether the Suspension Clause requires such an exception for actual innocence.").


10th Cir. Concurrence Notes Split Re Justiciability of Employment Claims Brought by National Guardsmen

Per Hanson v. Wyatt, 552 F.3d 1148 (10th Cir. Sep 10, 2008) (Gorsuch, J., concurring):

Interpreting the Supreme Court's guidance as I have, and consistent with our decision in Costner, the vast majority of circuits have held that, while judicial review may be had of congressionally authorized BCMRs, direct suits against military superiors challenging discharge and other discrete personnel decisions are not congressionally authorized and therefore would represent an inappropriate intrusion into matters textually and prudentially committed to the political branches. They have frequently done so, moreover, in the very context here-suits brought by National Guard members challenging their dismissal by the relevant adjutant general. See, e.g., Watson v. Ark. Nat'l Guard, 886 F.2d 1004, 1009 (8th Cir.1989); Crawford v. Tex. Army Nat'l Guard, 794 F.2d 1034, 1036 (5th Cir.1986); Speigner v. Alexander, 248 F.3d 1292, 1296-98 (11th Cir.2001); Kreis, 866 F.2d at 1511; Dibble v. Fenimore, 339 F.3d 120, 127-28 (2d Cir.2003); Knutson v. Wisc. Air Nat'l Guard, 995 F.2d 765, 770-71 (7th Cir.1993); Christoffersen v. Wash. State Air Nat'l Guard, 855 F.2d 1437, 1440-45 (9th Cir.1988); Scott v. Rice, 1993 WL 375664, at *2 (4th Cir. Sept.23, 1993); see also E. Roy Hawkins, The Justiciability of Claims Brought by National Guardsmen Under the Civil Rights Statutes for Injuries Suffered in the Course of Military Service, 125 Mil. L.Rev. 99, 128-32 (1989); Christopher G. Froelich, Comment, Closing the Equitable Loophole: Assessing the Supreme Court's Next Move Regarding the Availability of Equitable Relief for Military Plaintiffs, 35 Seton Hall L.Rev. 699 (2005). But see Wigginton v. Centracchio, 205 F.3d 504, 512-13 (1st Cir.2000); Jorden v. Nat'l Guard Bureau, 799 F.2d 99, 109-11 (3d Cir.1986). By holding Col. Hanson's claim justiciable and reaching its merits, the majority cements not only an intra- but also an inter-circuit split on a significant point of law and does so without affording the consideration due this substantial body of learning from our sister circuits.


Dissenting C.A.D.C. Judge Brown Describes Circuit Split Re Sentencing Guidelines for "Renting or Managing a Drug Establishment"

Per In re Sealed Case, 552 F.3d 841 (D.C. Cir. Jan 16, 2009) (Brown, J., dissenting):

However, under the plain error standard that should be applied here, Appellant loses; this court has never resolved whether § 2D1.8(a)(2) sets the base offense level or is a mitigation provision, and in fact, as the majority observes but fails fully to credit, there is a circuit split on this very question. Compare United States v. Dickerson, 195 F.3d 1183, 1189-90 (10th Cir.1999) (holding burden is on the defendant to show applicability of § 2D1.8(a)(2)) and United States v. Leasure, 319 F.3d 1092, 1098 (9th Cir.2003) (holding burden is on the government to show participation under § 2D1.8(a)(1)). Indeed, it is not surprising that there is a circuit split, because § 2D1.8(a)'s legal character is by no means obvious. Thus even assuming error, we should affirm because the district court did not "fail[ ] to follow an absolutely clear legal norm." United States v. Andrews, 532 F.3d 900, 909 (D.C.Cir.2008).


E.D. Mo. Notes Decisional Split within Eighth Circuit

Per Jackson v. Steele, Slip Copy, 2009 WL 350633 (E.D. Mo. Feb. 10, 2009):

Authority within the Eighth Circuit is mixed in regard to whether a state prisoner can raise a claim pursuant to a § 2254 petition which has only been reviewed by the state court for plain error. The Eighth Circuit acknowledged in Hornbuckle v. Groose that “ ‘[t]here appears to be a decisional split within our Circuit on whether plain-error review by a state appellate court waives a procedural default by a habeas petitioner, allowing collateral review by this court.’ “ 106 F.3d 253, 257 (8th Cir.1997) (quoting Mack v. Caspari, 92 F.3d 637, 641 n. 6 (8th Cir.1996)). In Hornbuckle, 106 F.3d at 257, the Eighth Circuit chose to follow cases holding that where Missouri courts review procedurally defaulted claims of a habeas petitioner for plain error, the federal habeas court may likewise review for plain error. In Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir.2000), the Eighth Circuit addressed the merits of a habeas petitioner's claim where the state court had reviewed the claim for plain error. However, in Evans v.. Luebbers, 371 F.3d 438, 443 (8th Cir.2004), the Eighth Circuit stated that a habeas claim was procedurally defaulted “notwithstanding the fact that the Missouri Court of Appeals reviewed the claim for plain error.”


William Mitchell Law Review Call for Papers – Eighth Circuit Splits

Here is a call for papers that I received recently:

Call for Papers – Eighth Circuit Split
William Mitchell Law Review, Vol. 36, Issue IV (Spring 2010)

The William Mitchell Law Review is proud to dedicate its fourth issue to Eighth Circuit Splits in its upcoming Volume 36 (Spring 2010). We are currently seeking papers that examine areas where the Eighth Circuit Court of Appeals has decided an issue differently from the other Circuit Courts of Appeals. These may be areas where the Eighth Circuit stands alone in its decision, or with a minority of other courts. Submissions may either take the form of shorter commentaries or longer law review articles. We are also accepting submission proposals at this time.

The William Mitchell Law Review is highly regarded both regionally and nationally. Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals, culminating in an overall ranking of seventieth. Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale. The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner, to Supreme Court Justices Sandra Day O’Connor, Byron White, and Harry Blackmun. Now, we would like to invite you to join us to publish in our upcoming volume.

Please direct inquiries to Executive Editor Ellen M. Ahrens at ellen.ahrens@wmitchell.edu. Please send submissions to lreview@wmitchell.edu or mail them to our Editorial Office. Please note that the Law Review prefers electronic submissions.

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N.D. Cal. Weighs In On Split Re Arbitration Consent Statute

Per Polimaster Ltd. v. RAE Systems, Inc., 2009 WL 196169 (N.D. Cal. Jan 13, 2009):

Polimaster and Na & Se contend that the award may not be confirmed because the License Agreement did not contain any consent to the arbitration award being confirmed by a Court. The two provisions of the FAA that provide courts with authority to confirm arbitration awards contain conflicting consent requirements. 9 U.S.C. § 207 instructs that "within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration." 9 U.S.C. § 9 is more restrictive:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award.

In reconciling these two provisions, circuit courts have split with respect to the question of whether consent is required. Compare Daihatsu Motor Co., Inc v. Terrain Vehicles, Inc., 1992 WL133036 at *3 (N.D.Ill.1992), aff'd on other grounds, 13 F.3d 196 (7th Cir.1993) with Phoenix Aktiengeselshaft v. Ecoplas, Inc., 291 F.3d 433 436-38 (2d Cir.2004). The Ninth Circuit has not addressed this issue. However, they [sic] Court finds the Second Circuit's analysis to be persuasive.


S.D.N.Y Tracks Circuit Split Re Applicability of Title II to Employment Discrimination

Per Melrose v. N.Y. State Dept. of Health Office of Professional Medical Conduct, 2009 WL 211029 (S.D.N.Y. Jan 26, 2009):

The 4th, 5th, 9th, 10th, and 11th Circuits, as well as district courts within the Second Circuit, have addressed the applicability of Title II to employment discrimination with conflicting results. See, e.g., Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1173 (9th Cir.1999) (holding Title II inapplicable to employment discrimination); Davoll v. Webb, 194 F.3d 1116, 1130 (10th Cir.1999) (assuming Title II applicable to employment discrimination); Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998) (holding Title II permits an employment discrimination claim against a public entity); Holmes v.. Texas A & M Univ., 145 F.3d 681, 683-84 (5th Cir.1998) (assuming Title II applicable to employment discrimination); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995) (assuming Title II applicable in the employment context); Sworn v. Western N.Y. Children's Psychiatric Ctr., 269 F.Supp.2d 152, 157 (W.D.N.Y.2003) (holding Title II inapplicable); Smith v. State Univ. of N.Y., No. 00-1454, 2003 WL 1937208, at *8 (N.D.N.Y. Apr. 23, 2003) (holding Title II applicable); Syken v. State of N.Y., Executive Dep't, Div. of Hous. & Cmty. Renewal, No. 02-4673, 2003 U.S. Dist. LEXIS 5358, at *23 (S.D.N.Y. Apr. 2, 2003) (holding Title II inapplicable); Winokur v. Office of Ct. Adm., 190 F.Supp.2d 444, 449 (E.D.N.Y.2002) (holding Title II applicable); see also Hinton v. The City College of New York, 05 Civ. 8951, 2008 U.S. Dist. LEXIS 16058, at *70-71 & n. 22 (S.D.N.Y. Feb. 29, 2008) (noting split among circuits as well as fact that "[a]lthough the Second Circuit has yet to address this issue, district courts in this Circuit have been split").

. . . .

Defendant's motion to dismiss Plaintiff's Title II claims for monetary and equitable relief against Defendant for failure to state a claim should be granted.

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