Summary
The Sixth Circuit held that Ricky Lee Welch’s Kentucky post-conviction appeal remained pending for purposes of tolling the federal habeas statute of limitations under 28 U.S.C. § 2244(d)(2). Although Welch filed his appeal after Kentucky’s ordinary 30-day deadline, the appeal qualified for Kentucky’s established deficient-counsel exception permitting a belated appeal. The court reversed the district court’s dismissal of Welch’s § 2254 petition as untimely.
Topics
Practice areas
Questions Presented
- Whether Welch's state post-conviction application remained pending under 28 U.S.C. § 2244(d)(2) while Kentucky courts considered his motion for and resulting belated appeal.
- Whether Welch's federal habeas petition was timely after accounting for statutory tolling during the Kentucky belated-appeal proceedings.
Holdings
- A state post-conviction application remains pending for purposes of 28 U.S.C. § 2244(d)(2) when the prisoner's otherwise late appeal falls within a recognized exception to the state's ordinary appellate deadline and the state court grants the belated appeal.
- Welch's federal habeas petition was timely because only 190 days of the one-year limitations period had elapsed when he filed it.
- A belated appeal may toll the federal habeas limitations period, but it cannot restart or resuscitate the period after the one-year clock has already expired.
Key quotations
“If a petitioner’s otherwise-tardy appeal “fit[s] within any exception[]” to a state time limit, the application remains “pending” and the federal habeas clock remains paused.” (4)
“Because the Ohio and Kentucky procedures function as clearly established exceptions to state timeliness rules, both of them stop the twelve-month federal habeas clock from running while the state court considers the motion and, if the motion is granted, the subsequent appeal.” (5)
“By the time Welch filed his federal petition, 190 days had run on the 365-day clock. That made Welch’s federal habeas petition timely.” (6)
“A belated appeal, to repeat, may toll a prisoner’s federal habeas clock; it may not resuscitate it.” (7)
Factual background
A Kentucky jury convicted Welch of robbery, kidnapping, burglary, and being a persistent felony offender in 2017, and he received a fifty-year sentence. Welch filed a state post-conviction motion alleging ineffective assistance of trial counsel, but his appointed counsel failed to file a timely appeal from the denial of that motion because of the COVID-19 pandemic. Kentucky courts granted Welch's motion for a belated appeal under a deficient-counsel exception, considered the appeal, and ultimately denied further review. Welch then filed a federal habeas petition, which the district court deemed untimely.
Procedural history
A Kentucky jury convicted Welch in 2017, and he later filed a state post-conviction motion alleging ineffective assistance of trial counsel. After the state trial court denied relief, Welch filed a motion for a belated appeal six weeks after the ordinary appeal deadline; Kentucky courts granted the motion, considered the appeal, affirmed, denied rehearing, and the Kentucky Supreme Court declined review in June 2023. Welch filed his federal habeas petition on July 28, 2023. The district court dismissed it as untimely, and Welch appealed.