Ninth Circuit Clarifies Montana Supreme Court’s Sentence Review Division Is Not an ‘Appeal’ Triggering Habeas Clock
It’s an important decision because if review in the SRD were a form of direct appeal, then the clock would have started later, and Charles Branham’s habeas petition in federal court would have been timely filed.
He had been convicted of homicide, which the Montana Supreme Court upheld in 2012 on direct appeal. Almost a year later, he filed a state postconviction motion that was eventually denied in 2017. He then filed an application for review of his sentence in the SRD. After that was unsuccessful, he had about three weeks in which to file his habeas petition in federal court, but he waited six months. The federal district court dismissed his petition as too late.
The Court observed that the U.S. 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 (2011). For example, the Supreme Court has explained that “habeas corpus is a form of collateral review” as are coram nobis proceedings and those under 28 U.S.C. § 2255. Id.
Under 28 U.S.C. § 2244(d), the one-year clock to file his habeas petition in federal court began when Branham’s direct appeals and state postconviction challenges were complete. The Ninth Circuit has previously assumed that an application to the SRD in Montana is a collateral proceeding (and not a direct appeal), but in Branham’s case, the Court confirmed what had been assumed—a challenge in the SRD is a collateral review proceeding that may toll the one-year clock but does not start the clock. So, while his application was pending in the SRD, it did in fact toll the time he had to file in federal court, but not in the sense that a direct appeal denial would restart the clock.
The Ninth Circuit has held that a proceeding that substitutes for an appeal can be a form of direct review. And Branham did urge the Court to apply this reasoning to a review in the SRD since it is the only way a Montana prisoner can challenge the “equitable nature” of his sentence, rather than the legality of it. But this argument undermined Branham’s position. The Court concluded that because review in the SRD is equitable in nature, “it resembles habeas corpus, which is, at its core, an equitable remedy.”
Accordingly, the Court affirmed the dismissal of Branham’s habeas petition as untimely filed. See: Branham v. Montana, 996 F.3d 959 (9th Cir. 2021).
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