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Keller v. Pringle

United States Court of Appeals, Eighth Circuit

August 16, 2017

Brandon Keller, Petitioner - Appellant,
v.
Chad Pringle, Warden, Respondent - Appellee.

          Submitted: May 11, 2017

         Appeal from United States District Court for the District of North Dakota - Fargo

          Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          COLLOTON, Circuit Judge.

         Brandon Keller appeals the district court's [1] dismissal of his petition for writ of federal habeas corpus under 28 U.S.C. § 2254. We affirm.

          I.

         In 2003, a jury in North Dakota state court found Keller guilty of conspiracy to commit murder, attempted murder, and reckless endangerment. Keller appealed, arguing that the evidence was insufficient to support his convictions for conspiracy to commit murder and attempted murder. The North Dakota Supreme Court affirmed. State v. Keller, 695 N.W.2d 703 (N.D. 2005).

         Eight years later, the North Dakota Supreme Court decided three cases addressing the intent requirement for conspiracy to commit murder and for attempted murder. In State v. Borner, 836 N.W.2d 383 (N.D. 2013), the court determined that to be guilty of conspiracy to commit murder under state law, one must intend to cause death; extreme indifference to the value of human life is not sufficient. Id. at 386. The court in Dominguez v. State, 840 N.W.2d 596 (N.D. 2013), similarly held that a defendant cannot be convicted for attempted murder on a theory of extreme indifference. Id. at 598. Applying Dominguez, the court in Coppage v. State, 843 N.W.2d 291 (N.D. 2014), granted a prisoner post-conviction relief because he was convicted of attempted murder based on a finding that he manifested an extreme indifference to the value of human life. Id. at 303.

         After these decisions, Keller moved in state court to correct an illegal sentence. Keller urged the court to vacate his attempted murder conviction because the jury instructions allowed a guilty verdict for attempted murder on a theory of extreme indifference without a finding of intent to cause death. The state district court denied his motion, concluding that Keller was not seeking to correct an illegal sentence but rather to apply subsequent North Dakota Supreme Court decisions to his case retroactively.

         Keller then filed an application for state post-conviction relief. The state district court dismissed the application as untimely, and the North Dakota Supreme Court affirmed. Keller v. State, 869 N.W.2d 424 (N.D. 2015). The court rejected Keller's argument that he timely asserted a new interpretation of North Dakota statutory law that was retroactively applicable to his case. See N.D. Cent. Code § 29-32.1-01(3)(a)(3). The court deemed Borner, Dominguez, and Coppage inapplicable because it thought the jury instructions in Keller's case did not allow the jury to convict him based merely on a finding of extreme indifference to the value of human life. Keller, 869 N.W.2d at 431-34.

         Keller then filed a petition for federal habeas relief in the district court under 28 U.S.C. § 2254. The district court dismissed the petition as untimely under 28 U.S.C. § 2244 and concluded that Keller was not eligible for equitable tolling. Keller appeals, and we review the dismissal de novo. Streu v. Dormire, 557 F.3d 960, 961 (8th Cir. 2009).

         II.

         Under the federal Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner has one year from the latest of four dates to seek federal habeas corpus relief. 28 U.S.C. § 2244(d)(1). The first limitations period is one year from the date when the judgment of the state court became final. Id. § 2244(d)(1)(A). Keller's conviction became final in 2005, so his petition does not meet the first criterion. Keller contends, however, that his petition was timely under § 2244(d)(1)(D). That section provides that the one-year limitation period may begin to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Relying on Johnson v. United States, 544 U.S. 295 (2005), Keller contends that the state supreme court's decisions in Borner, Dominguez, and Coppage are the "factual predicates" of his claim and that he filed his petition within one year of those decisions.

         Johnson involved a motion to vacate sentence by a federal prisoner under 28 U.S.C. § 2255. Section 2255 sets time limits similar to those applicable to state prisoners under § 2244(d). One subsection provides that a § 2255 motion is timely if it is filed within one year of "the date on which the facts supporting the claim or claims presented ...


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