Harry Mitts’ Death Sentence Allowed 
To Be Heard In Federal Court

U.S. District Judge Dan Aaron Polster today ruled that the federal habeas petition in the case of Harry Mitts was filed within the applicable statute of limitations, allowing Mr. Mitts the opportunity to have his claims heard in federal court.

A Cuyahoga County jury sentenced Harry Mitts to death in 1994. After unsuccessfully challenging his conviction and sentence in state postconviction and on direct appeal, Mitts should have filed a habeas petition in federal court by April 21, 2003. When the Ohio Public Defender’s Office discovered that Mitts’ petition had not been filed and was overdue, it moved for an appointment of counsel and filed a Notice of Intent to File a Habeas Petition.

In his initial brief, Mitts argued that he should not be barred from federal court review because: comity and federalism require that the federal courts toll the time during which a state court litigant requests the appointment of counsel for the purposes of Rule 26(B) review; the limitations period commences again at the conclusion of the 26(B) process, leaving a petitioner an entire year after his Rule 26(B) application to file; and equitable tolling should apply to the time in which he sought the appointment of two qualified counsel to handle his Rule 26(B) litigation.

Mitts also argued for equitable tolling for an attorney’s egregious neglect of the legal duty entrusted to him—Mitts’ habeas corpus litigation.

Approximately a week after Mitts filed his tolling arguments, the Sixth Circuit held that a state prisoner is entitled to tolling for the 90 days available to him to file certiorari from his state postconviction petition. Mitts filed a Notice of Supplemental Authority, arguing that the logic in tolling the time for postconviction petitioners applied equally as well to the time for seeking review of a Rule 26(B) application, making Mitts’ petition timely. After asking for additional briefing on the topic, the district court agreed with Mitts.

Essentially, the decision allows a state prisoner to toll the one-year statute of limitations for federal habeas petitions during the 90-day period available for seeking certiorari review from his appellate Rule 26(B) application in state court, along with additional 90-day periods after both postconviction review and direct appeal.

The District Court found that Mitts’ petition was timely filed because he received the benefit of three 90-day periods: after the conclusion of his direct review; his postconviction litigation; and his Rule 26(B) application.

Mitts will now have his claims heard in federal court.

Click here for a copy of the January 21, 2004 Opinion