Akil McIntosh v. Stuart Hudson

Filing

Per Curiam OPINION filed to dismiss case for lack of jurisdiction, decision not for publication. Danny J. Boggs and David W. McKeague, Circuit Judges; Gordon J. Quist, U.S. District Judge.

Case: 09-3979 Document: 006110914657 Filed: 04/01/2011 Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0206n.06

FILED

No. 09-3979
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

AKIL McINTOSH,
Petitioner-Appellee,
v.
STUART HUDSON,
Respondent-Appellant.

BEFORE:

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Apr 01, 2011
LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

OPINION

BOGGS and McKEAGUE, Circuit Judges; and QUIST, District Judge.*

PER CURIAM. This case poses the question whether the statute of limitations for habeas
corpus claims under 28 U.S.C. § 2244(d)(1)(D) requires that the defendant demonstrate due diligence
in order to receive the later start date for appeal-based, as well as conviction-based, claims. The
district court concluded that due diligence is not required in appeal-based claims and therefore
Petitioner McIntosh’s appeal-based claim was timely. It determined that McIntosh was entitled to
notice of his appellate rights, despite his guilty plea, and therefore that the state court’s denial of his
delayed appeal violated federal law. The district court therefore granted a conditional writ of habeas
corpus, requiring reinstatement of McIntosh’s direct appeal within sixty days or release of McIntosh
from prison.

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The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.

Case: 09-3979 Document: 006110914657 Filed: 04/01/2011 Page: 2

No. 09-3979
McIntosh v. Hudson
Ohio reinstated McIntosh’s appeal. The Ohio Court of Appeals has now heard, and rejected,
McIntosh’s claim, State v. McIntosh, 2010-Ohio-6471, 2010 WL 5550252 (Ohio App. Dec. 30,
2010); and the time for him to seek review with the Supreme Court of Ohio has passed, see Ohio S.
Ct. Prac. R. 2.2(A) (requiring appeal within 45 days of decision). Therefore, McIntosh’s state appeal
has been completed, and the appeal before this court has become moot. See Hill v. Sheets, No. 084654, 2010 WL 4627896, at *3 (6th Cir. 2010) (holding that when the state fulfilled one of the two
options ordered by the district court for habeas relief, the appeal to this court was moot).
The sole reason we dismiss this appeal is that it is now moot and thus immune from review;
Hall v. Beals, 396 U.S. 45, 48 (1969); whether a right to notice of appeal in these circumstances is
“clearly established,” however, remains an open question. Because we lack the authority to vacate
the district court’s now-moot judgment granting habeas relief, we DISMISS the appeal for want of
jurisdiction.

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