                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2007

Hartmann v. Carroll
Precedential or Non-Precedential: Precedential

Docket No. 04-4550




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                                       PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 04-4550


            DETLEF F. HARTMANN,

                                   Appellant

                        v.

       THOMAS CARROLL, Warden;
ATTORNEY GENERAL OF STATE OF DELAWARE



  On Appeal from the United States District Court
            for the District of Delaware
              (D. C. No. 03-cv-00796)
     District Judge: Hon. Joseph J. Farnan, Jr.


           Argued on February 1, 2007

    Before: BARRY and ROTH, Circuit Judges
             IRENAS*, District Judge

               (Filed: July 9, 2007)
Christopher R. Nestor, Esquire (Argued)
David R. Fine, Esquire
Kirkpatrick & Lockhart Preston Gates Ellis
17 North Second Street
18th Floor
Harrisburg, PA 17101-1507

             Counsel for Appellant


Elizabeth R. McFarlan, Esquire (Argued)
Deputy Attorney General
Delaware Department of Justice
820 North French Street
State Office Building
Wilmington, DE 19801

             Counsel for Appellees




                         OPINION




       Honorable Joseph E. Irenas, United States District Court
Judge for the District of New Jersey, sitting by designation.

                              2
ROTH, Circuit Judge:

        Detlef F. Hartmann is an inmate at the Delaware
Correctional Center in Smyrna, Delaware. He has filed an
application for federal habeas relief under 28 U.S.C. § 2254.
The United States District Court for the District of Delaware
dismissed the application as time-barred under the one-year
limitations period set forth in 28 U.S.C. § 2244(d)(1). Hartmann
appeals, arguing that his application was timely because his
filing of various motions in Delaware state court tolled the
limitations period in accordance with § 2244(d)(2). Because we
conclude that Hartmann’s motion under Delaware Superior
Court Criminal Rule 35(b) did not meet the tolling requirements
of § 2244(d)(2), we will affirm the judgment of the District
Court, dismissing Hartmann’s petition as untimely.

I. Background

        On March 29, 2001, Hartmann pled guilty in Delaware
Superior Court to one count of second degree unlawful sexual
intercourse and two counts of unlawful sexual contact. The
victim of each count was a minor child. Hartmann was
immediately sentenced, consistent with the plea agreement, to
an aggregate of nineteen years of incarceration, suspended with
decreasing levels of supervision after the mandatory minimum
term of ten years. Hartmann did not appeal either his conviction
or his sentence.

      On June 29, 2001, pursuant to Delaware Superior Court
Criminal Rule 35(b), Hartmann filed a pro se motion in the
Superior Court for sentence reconsideration, reduction, or

                               3
modification.1 In this motion, he sought a reduction in his
sentence on the basis of thirteen “mitigating circumstances.”2
The Superior Court denied the motion on June 25, 2002, noting
that it had no discretion to reduce a mandatory minimum
sentence.

          On November 12, 2002, Hartmann filed another motion,

   1
       DEL. SUPER CT. CRIM. R. 35(b) provides, in full:

Reduction of Sentence. The court may reduce a sentence of
imprisonment on a motion made within 90 days after the
sentence is imposed. This period shall not be interrupted or
extended by an appeal, except that a motion may be made within
90 days of the imposition of sentence after remand for a new
trial or for resentencing. The court may decide the motion or
defer decision while an appeal is pending. The court will
consider an application made more than 90 days after the
imposition of sentence only in extraordinary circumstances or
pursuant to 11 Del. C. § 4217. The court will not consider
repetitive requests for reduction of sentence. The court may
suspend the costs or fine, or reduce the fine or term or
conditions of partial confinement or probation, at any time. A
motion for reduction of sentence will be considered without
presentation, hearing or argument unless otherwise ordered by
the court.
   2
   Hartmann filed a duplicate of this motion on July 26, 2001.
The filing of this duplicate did not appear to affect the Superior
Court’s review and certainly did not change the dates during
which the original motion was pending.

                                 4
entitled “Motion to Dismiss.”3 In this motion, Hartmann
challenged the jurisdiction of the Superior Court over the
charges in his indictment and alleged that his counsel had been
ineffective. On November 19, 2002, the Superior Court struck
the motion, noting that a motion to dismiss was improper
because Hartmann’s convictions were final. On March 20,
2003, the Delaware Supreme Court affirmed this order,
explaining that the Superior Court did not abuse its discretion in
striking the motion as a nonconforming document “to the extent
that” the motion did not comply with Rule 61. The Supreme
Court also determined that Hartmann’s substantive argument
was meritless.

        On August 4, 2003, Hartmann filed a habeas petition for
federal collateral relief under 28 U.S.C. § 2254. The District
Court dismissed the petition as time-barred under the one-year
limitations period set forth in 28 U.S.C. § 2244(d)(1). The
District Court found that Hartmann’s conviction had become
final on April 30, 2001, and that he did not file his § 2254
petition until August 4, 2003—well over two years later.
Although the application would have been timely had the
limitations period been tolled both by the Rule 35(b) motion and
by the “Motion to Dismiss,” the District Court determined that
Hartmann’s “Motion to Dismiss” could not toll the limitations
period because it was not a “properly filed” application for state

   3
    Motions to dismiss are governed by DEL. SUPER CT. CRIM.
R. 12. Under Rule 12(b)(2), motions alleging defects in the
indictment must be raised prior to trial, though motions alleging
failures of jurisdiction or failures to charge a crime may be
raised at any time during the pendency of the proceedings.

                                5
post-conviction relief under § 2244(d)(2). Thus, the District
Court found that the period from November 12, 2002, through
March 20, 2003, should be counted as part of Hartmann’s one-
year allowance and that, as a result, Hartmann’s § 2254 petition
was untimely regardless of whether his Rule 35(b) motion tolled
the limitations period. The District Court therefore declined to
rule on the tolling effect of Hartmann’s Rule 35(b) motion.

       On November 1, 2005, a three-judge panel of our Court
issued a certificate of appealability under 28 U.S.C. § 2253(c)(1)
with regard to the District Court’s ruling that Hartmann’s § 2254
petition was time-barred. We requested briefing with respect to
the applicability of statutory tolling on the Rule 35(b) motion
and the “Motion to Dismiss.”

II. Jurisdiction and Standard of Review

        The District Court exercised jurisdiction over Hartmann’s
petition pursuant to 28 U.S.C. § 2254(a). We have jurisdiction
of this appeal pursuant to 28 U.S.C. §§ 1291 and 2253. Our
review of the timeliness of a federal habeas application is
plenary. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

III. Discussion

      With the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Congress established a one-year limitations
period within which a person in custody pursuant to the
judgment of a state court may file an application in federal court




                                6
for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1).4 Absent a
state-created impediment to filing or the development of new
constitutional rights or discoverable facts, none of which is
present in this case, the limitations period runs from the date on
which the state conviction “became final by the conclusion of
direct review or the expiration of the time for seeking such
review.” § 2244(d)(1)(A). Because Hartmann did not seek

   4
    28 U.S.C. § 2244(d)(1) provides, in full:
       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 limitations 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.

                                7
direct review of his sentence or his conviction, his conviction
became final on the date on which his time for seeking direct
review expired. In Delaware, a direct appeal of a criminal
conviction must be filed within thirty days after the date of
conviction. DEL. SUPR. CT. R. 6(a)(iii). Hartmann was
convicted on March 29, 2001, and his conviction became final
on April 30, 2001.5 Therefore, absent any tolling, Hartmann had
until April 30, 2002, to file a federal habeas application that was
timely under 28 U.S.C. § 2244(d)(1). Hartmann did not file his
§ 2254 petition until August 4, 2003.

        In AEDPA, Congress also provided a statutory
mechanism by which petitioners may toll the one-year
limitations period prescribed in § 2244(d)(1). Under 28 U.S.C.
§ 2244(d)(2), “[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 toward any period of limitation under this
subsection.” Hartmann claims that his limitations period was
tolled under § 2244(d)(2) during two periods of time: first,
during the pendency of his Rule 35(b) motion, from June 29,
2001, through June 25, 2002; and second, during the pendency
of his “Motion to Dismiss,” from November 12, 2002, through
March 20, 2003. For Hartmann’s § 2254 petition to be timely
under § 2244(d)(1), both motions must have had the effect of
tolling the limitations period; the time gained from either one,


   5
   The date thirty days after his conviction fell on a Saturday,
and so the conviction became final on the following Monday
pursuant to DEL. SUPR. CT. R. 11(a).

                                8
without the other, is insufficient.6

        We look first to the Rule 35(b) motion. The question we
address is whether Hartmann, by filing a motion under Delaware
Superior Court Criminal Rule 35(b), filed an “application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim” capable of tolling the one-year
limitations period for filing a federal habeas application. To
answer this question, we first must understand what Hartmann
was requesting when he filed for relief under Rule 35(b).
Unlike Delaware Superior Court Criminal Rule 35(a), which
allows a court to “correct an illegal sentence,” and Rule 61,
which governs the procedures by which a person can challenge
a judgment on the ground that “the court lacked jurisdiction or
on any other ground that is a sufficient factual and legal basis
for a collateral attack,” Rule 35(b) “allows for a reduction of
sentence without regard to the existence of a legal defect.” State
v. Lewis, 797 A.2d 1198, 1201 (Del. 2002) (emphasis added).
A Rule 35(b) motion is a plea for leniency, directed toward the
sentencing court, which seeks discretionary relief based on
mercy and grace, rather than on the law. A prisoner may make
such a motion only once and, except in extraordinary
circumstances, must file the motion within 90 days of the date
on which the sentence was imposed or forfeit the right to do so.
If the 90-day deadline is read together with the 30-day deadline
for filing a direct appeal, most prisoners who file a Rule 35(b)

   6
     This appeal is limited to the issue of statutory tolling, and
consequently, we do not address the question of equitable
tolling, which the District Court considered and resolved in
favor of Appellees.

                                 9
motion will do so during the pendency of the direct appeal.7
Importantly, a prisoner is not obligated to seek relief under Rule
35(b); Delaware’s direct and collateral appellate review
mechanisms operate independently of the Rule 35(b) procedures
by which a prisoner may seek discretionary leniency.8



   7
    Indeed, Rule 35(b) expressly provides that the sentencing
court has discretion either to decide the motion or to defer
decision while the appeal is pending.
   8
    It is possible that a prisoner might file what is ostensibly a
motion under Rule 35(b) and yet intend to seek relief other than
discretionary leniency. We note this possibility because we bear
in mind that pro se filings are to be construed liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Holley v. Dep’t of
Veteran Affairs, 165 F.3d 244, 247 (3d Cir. 1999). Nonetheless,
construing Hartmann’s motion liberally, we find that it is a pure
plea for leniency in which Hartmann does not challenge the
legality of his conviction or sentence. It is true that in seeking
mercy, Hartmann referred to several bumps in the road toward
his conviction and sentencing, including his confusion during
the proceedings and his miscommunications with his attorney.
He recited these facts, however, not to challenge the lawfulness
of the proceedings, but to better establish his sympathetic
character. Hartmann’s motion was written to persuade the
Superior Court of his remorse, his history as a family man and
productive member of the community, and the unlikeliness that
he would repeat his offense. The Delaware courts interpreted
Hartmann’s Rule 35(b) motion as a pure plea for leniency, and
so shall we.

                               10
       Thus, we are presented with the question: Does a
properly filed plea for leniency, by which the prisoner seeks
discretionary mercy and does not challenge the lawfulness of the
sentence, toll the one-year limitations period for filing federal
habeas application? In approaching this question, we are
reminded that our Court has taken a “flexible approach” toward
interpreting § 2244(d)(2). See Nara, 264 F.3d at 315.
Flexibility, however, is not without limits; the application of a
flexible approach requires recognition of the limits past which
the rule in question will not bend.

        Nara involved a state court prisoner who had collaterally
challenged his mental competence to enter a guilty plea but who
had withdrawn his challenge after being informed that he had
already litigated the issue in an earlier collateral proceeding. He
then filed a motion to withdraw his guilty plea nunc pro tunc.
Id. at 313. In a habeas proceeding before us, we held that, under
our “flexible approach,” Nara’s motion was “certainly akin to an
application for state post-conviction or other collateral review.”
Id. at 316. Our decision was informed by the full consideration
given to the motion by the state court. Id. Even though Nara’s
motion to withdraw the guilty plea was substantially similar to
the earlier petition, we concluded that we would toll the §
2244(d)(1) limitations period during the pendency of the motion
because the motion attacked the lawfulness of the prisoner’s
conviction in a procedure designed to allow post-conviction
review of a previously litigated issue; thus, we deemed the
motion to be properly filed under state law.

        Here, however, we have a state court proceeding that is
not attacking the lawfulness of the conviction or of the sentence.

                                11
The motion here is for a discretionary exercise of leniency by
the sentencing judge – leniency despite a conviction and a
sentence which are not claimed to be invalid.

       We are aware of three other federal courts of appeals that
have considered this question. Their opinions are discordant.
The Fourth Circuit has held that a motion for reduction of
sentence under West Virginia Rule of Criminal Procedure 35(b)
is not an “application for State post-conviction or other
collateral review” capable of tolling the limitations period under
28 U.S.C. § 2244(d)(2). Walkowiak v. Haines, 272 F.3d 234,
239 (4th Cir. 2001). The Fourth Circuit reasoned that a motion
for reduction of sentence on grounds of leniency cannot qualify
as seeking review collateral to the original proceeding because
(1) the review procedures are not “separate and distinct” from
the original and (2) the prisoner does not allege that any legally
cognizable error was committed. See Walkowiak, 272 F.3d at
237-38. We agree with the Fourth Circuit that for an application
to be for “post-conviction or other collateral review,” the
applicant must seek review that is collateral to the original
judgment.

       Similarly, the Eleventh Circuit has held that a prisoner
does not toll the limitations period pursuant to § 2244(d)(2) by
requesting review of his or her sentence pursuant to section 17-
10-6 of the Georgia Code, which provides for review by a three-
judge panel to determine whether the sentence imposed was
“excessively harsh.” Bridges v. Johnson, 284 F.3d 1201, 1203-
04 (11th Cir. 2002). The court concluded that a judicial review
procedure for determining whether a sentence is excessively
harsh does not toll the limitations period of § 2244(d)(1)

                               12
“because it does not promote exhaustion by giving state courts
the opportunity to consider federal-law challenges to state court
judgments, and it does not promote finality of state court
judgments by reducing the time in which federal review is
sought.” Bridges, 284 F.3d at 1203.

        The Tenth Circuit, however, has determined that the
limitations period is tolled pursuant to § 2244(d)(2) by a motion
for reduction of sentence under Colorado Rule of Criminal
Procedure 35(b), Robinson v. Golder, 443 F.3d 718, 720-21
(10th Cir. 2006), and by a motion for modification of sentence
under New Mexico Rule of Criminal Procedure 5–801(B).
Howard v. Ulibarri, 457 F.3d 1146, 1149-50 (10th Cir. 2006).
The Tenth Circuit based its decisions on comity because the
state court had retained jurisdiction of the leniency proceeding
during its pendency. We note, however, that the language of §
2244(d)(2) specifies that the section is tolled only by “state post-
conviction or other collateral review” – not by just any pending
state court proceeding. For that reason, we are not persuaded by
the reasoning of the Tenth Circuit.

       Moreover, Congress, in enacting AEDPA, intended to
further principles of comity, finality, and federalism, which are
promoted in large part through the requirement, set forth in 28
U.S.C. § 2244(b), that state remedies be exhausted before
seeking federal review. Duncan v. Walker, 533 U.S. 167, 178
(2001); Williams v. Taylor, 529 U.S. 420, 436 (2000). As such,
the Supreme Court repeatedly has explained that courts are to
evaluate the tolling rules of 28 U.S.C. § 2244(d) together with
the exhaustion requirement. Specifically, we are instructed to
seek a construction of § 2244(d)(2) which “promotes the

                                13
exhaustion of state remedies while respecting the interest in the
finality of state court judgments.” Duncan, 533 U.S. at 178.
The exhaustion requirement, in turn, “ensures that the state
courts have the opportunity fully to consider federal-law
challenges to a state custodial judgment before the lower federal
courts may entertain a collateral attack upon that judgment.” Id.
at 178-79. Obviously, when a prisoner in state custody opts to
file a motion for discretionary leniency, the state is not being
asked to correct errors of legal moment. Whatever interest the
state has in deciding the motion, its interest is not one in
correcting errors before the federal courts assume jurisdiction.

        This understanding is confirmed by the Supreme Court’s
recent pronouncement that “AEDPA’s exhaustion provision and
tolling provision work together.” Lawrence v. Florida, 127 S.
Ct. 1079, 1083 (2007). Where the goals of exhaustion end, the
need for tolling recedes. Moreover, were we to hold that the
optional Delaware Rule 35(b) motion has the effect of tolling
the limitations period of § 2244(d)(1), we might create an
incentive for prisoners to file frivolous requests for leniency
merely as a delay tactic. Cf. id. at 1085. Finally, even though
AEDPA’s tolling provisions may embrace goals other than
exhaustion, such as comity and the desire to avoid simultaneous
litigation, tolling for a leniency petition does not advance those
goals. Accordingly, we conclude that a motion for sentence
reduction properly filed pursuant to Delaware Superior Court
Criminal Rule 35(b) does not have the effect of tolling the
limitations period set forth in 28 U.S.C. § 2244(d)(1). During
the pendency of Hartmann’s Rule 35(b) motion, the statutory
limitations clock of § 2244(d)(1) continued to run, rendering his



                               14
federal habeas application untimely.9

IV. Conclusion

       For the foregoing reasons, we will affirm the judgment
of the District Court, dismissing as untimely Hartmann’s
application for a writ of habeas corpus under 28 U.S.C. § 2254.




    9
     Because Hartmann’s Rule 35(b) motion did not toll the
limitations period pursuant to 28 U.S.C. § 2244(d)(2), his
federal habeas application was untimely regardless of whether
his “Motion to Dismiss” had the effect of tolling the limitations
period. We therefore decline to consider whether Hartmann’s
“Motion to Dismiss” was improperly filed or to decide what
effect to give to the language of the Delaware Supreme Court
when it stated that the Superior Court did not abuse its discretion
“to the extent that” Hartman’s “Motion to Dismiss” did not
comply with Rule 61.

                                15
