1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ATION: 2003 FED App . 0374P (6th C ir.) File Name: 03a03 74p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
K EVIN M ARK A BELA , Petitione r-Appell ant,

v.

W IL LI AM M ART IN , Director, Michigan Department of Correct ions, Respondent-Appellee. X

- - - -
> , - - - - - N No. 00-2430

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 99-72095—Robert H. Cleland, District Judge.

Argued: March 26, 2003
Decided and Filed: October 22, 2003

Befor e: BOGG S, Chief Cir

cuit Judge ; MARTI

N, SIL ER, BATCHELDER, DAUGHT REY, MOORE, COLE, CLAY , GIL

MAN, GI BBONS, and ROGER S, Circuit Judges. 2 Abela v. Martin No. 00-2430

_________________ COUNSEL

ARGUED: James Sterl ing L awrenc e, Detro it, Michigan, for Appellan t. William C. Campbell, O FFICE OF THE ATTORNEY GEN ER AL, Lansing, Michigan, for Appellee. ON BRIE F: James St erli ng Lawre nce, Detroit, Michigan, for Appellant. William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, L ansing, Michigan, for Appellee.

M ARTIN, J., delivered the opinion of the court, in w hic h DAUGHTREY, MOORE, COLE, CLA Y, and GIL MAN, JJ., joined. SIL

ER, J. (pp. 16-18), delivered a separate dissenting opinion, in which BO GGS, C. J., B ATCHEL DER, GIBBON S, and ROGERS, JJ., joined.

_________________ OPINION

_________________ BOYCE F. MARTIN, JR., Circuit Judge. This action arises from a Michigan manslaughter c onviction and subsequent

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The dist rict court found the habeas petition timely filed but d

enied it on the mer

its. Kevin

Mark Abe la appealed that deni al. A panel of this c ourt hea rd arg ument in this case, but

it declined to reach the merits. Thepanel he ld that unde r this court’s rule in Isham v. Randle , 226 F.3d 691 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001), Abela’s petition was not

timely because the

statue of limitations was nottolled by Abela’s pe

tition for writ of certiorari from the United States Supr

eme Court

following

post-con

vic t ion litigationin stat e court. The panel held that Abela’s habea s petition was barred

by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1). A majority of the active judg es of this court having agreed to re

hear the case en banc , we now hold that Abela’s petition was timely filed.No. 00-2430 Abela v. Martin 3

Abela w as con victed by a jury

of voluntary manslaug

hter and car ry in g a concealed wea

pon on July 24, 1991. He was
sen t enced to a term of seven to fifteen y ears for voluntary manslaughter

and a concurrent sentence of forty months to five yea rs for carry

ing a concealed weapon.

Abela appealed his conviction on F ebruary 17, 1992, by raising three issues in th e Michigan Court of Appeals. The Michigan Court of Appeals affirmed Abela’s conviction and sentence in an unpublished disposition. People v . Abela , No. 144005 (Mich. Ct. App. July 22, 1994). The Michigan Supreme Court denied Abela’s delay ed application for leave to appeal these issues. People v . Abela , No. 100783 (Mich

. Mar. 31, 1995).

OnAugust 20, 1996, Abe l a filed a motion for relief from judgment in the Oak l and County

Circuit Cou

rt, raisi ng six
c laims

. The motion was denied “for lack of merit on the groun ds presented.” People v . Abela , No. 90-101083 (Oakland County Cir. Ct. Oct. 22, 1996). Abe la raised the
same six issues on appeal to the Michiga n Court of A

ppeals, whichalso denied leave to appeal and a motion to remand. People v. Abela , No. 200930 (M ich. Ct. Ap p. July 22, 1997). OnAugust 9 , 1997, Ab ela ag ain raise d these six issues in his delayed applica tion for le ave to ap

peal to th e M ichigan Supreme Court, which likewise denied his petition. People

v. Abela , No. 1 10260 (Mich. May 28, 1998). On August 3, 1998, Abela filed a petition for certiorari with the United Sta tes Supreme Court, which was denied on October 19 , 1998. Abela v. Michigan , 525 U.S. 948 (1998).

OnApril 26, 1 999, bef

ore his pa role termhad ende d, Abela sought a writ of

habeas c orpus pursuant to se ctio n 2254, raising the same

claims as

in his moti on for re lief from judgment (except for his claim regard ing th e trial court’s decisionto reconsider its dismissal of the concealed weapon charge). The district court issued a memorandum opinion and denied the petition for habeas relief on October 31, 2000. On 4 Abela v. Martin No. 00-2430

December

28, 2000, the district court denied Abela’s motion fo r a ce rt if

ic at e o f a pp ea la bi li ty.
Abela a ppealed his denial of the

motio n to th

is cou rt. We granted his certificate of appealability onthe issues before us on April 20, 2001.

Between August 20, 1996, a

nd May 28, 1998, A

bela sought state colla teral relie f in th e Mich igan tr ial, a ppell ate, an d high courts. Th e limitations

period w as clea

rly tolled dur

ing this period because Abel a’ s state collateral relief motions were pending in the var

ious state courts. See Carey

v. Saffold , 536 U.S. 214, 220 (2002). In Carey , the Court held that “until the applicationha s achiev ed fin al res olut ion t hrough the S tate's post-convictionprocedures, by def ini tion it remains ‘pending.’” Id. T hu s, the key issue bef

ore us tod

ay is whether the o n e-y

ear sta tute of lim

itations a pplicabl e to federal habeas corpus petitions is also tolled during the period inwhic h a peti tioner may see k, and the Supreme Court considers whether to grant, cer tiorari review of the denial of the petitioner’s state collateral relief motion.

Title 28 U.S.C. § 2244(d)(1) provides a one-y ear period of limitations for peop le “in custody pursuant to the judgment of
a State court” t o file an application for a writ of habeas corpus. Title 28 U. S.C. § 2244( d)(2) pr ovides for tolli ng o f this one-yea

r period as follows: “The time duri ng which a properl y filed a pplication for State post-conviction or other
c ollateral review with respect to the pertinent judgment o r claim is pending shall not be counted toward any periodof limitation under this subsection.”

For prisoners whose co nv ictions be came fin al prior t o April 24 , 1996, the effective date of the Anti-Terr orism and Effective Death Penalty Ac t, the one-yea

r limitations period
runs against them as of that date. Austin v. Mitch ell , 200 F.3d 391, 393 (6th Cir . 199 9). Abela’s judgment of conviction becam e final prior to April 24, 1996, so his one-yea r limitations period began running on that date.No. 00-2430 Abela v. Martin 5

The Supreme Court recently concluded that a fed eral habeas corpus pe

tition does

not consti

tute “State postconvictionor other collateral review” in order to toll the oneyear limitations

period pu

rsuant to s ection 2244(d)(2). Duncan v. Walker , 533 U.S. 16 7, 18 2 ( 20 01 ). Si gn if ic an tl y, for our purpo ses, the Co

urt const rued the phrase “ State post

convictionor other

collater al revie w” to mea

n “State p ostconviction[review]”

and “othe

r Statecollateral review.” Id. at 175-76. Accordi ngl y, the section 2241(d)( 1) limitations period is nottolled

whil e feder al hab eas cor pus pr oceedi ngs are pending, because federa l habeas proceedi ngs are neither “State post-con viction” nor “othe

r State c ollate ral r eview.” Id. at 181-82. Thus, the more narrow question presented here is whether a petition for writ of certiorari to the Su preme Courtma y co ns ti tu te a “ pr op er ly f iled” and “p endin g” applic a tion for “State post-conviction [review]” or “other State collater

al revie w” so as t o toll the section 2244(d)(1) limitation period.

This Court’s pre-Duncan decision in Isham v. Randle
, 226 F.3d 691 (6th Cir. 2000), cert. denied
, 531 U.S. 1201 (2001), uponwhichthe pane l opinion r elied, de alt

with the situation where a petitioner

c ould have sought, but did not seek, certiorari review of his Ohio collateral review m otio n. We held that “the one y ear limita tions per iod is not tolled during the ninety day

s in which defendant

could have petitioned

the Supreme Court for a writ of certiorari . . . .” Id. at 692. First, we reasoned, ba se d on the statute’s plain language, the word “State” in s ection 2244(d)(2) modifie s “postco nvict ion or other collateral relief.” Id. at 695. This court concluded

that “[a] petition for certiorari to the United States Supreme Court is not ‘state post-con v iction relief.’ Neither is such a pe

tition ‘oth er state

collateral relief.’” Id. Thus, we decided , as had the Tenth Ci rcuit, tha t “a petit ion for wr it of certiorari to the United States Supreme Court is ‘simply not
anapplication for state review of any kind.’” Id. (citi ng Rhine

v. Boone , 182 F.3d

1153, 1156

(10th Cir. 1999)). We

also reasoned that our holding was bolstered by the fac t tha t 6 Abela v. Martin No. 00-2430

seekingcertiorar i in the United States Supreme Court is not
a mandatory par

t of state co urt r eview, a s it is not a prereq uisite to pursuing habeas corpus. Fay v. Noi a , 372 U.S. 391, 435 (1963). Finally, we concluded t hat differe

nces in section2244(d)(1)(A) and section 2244(d)(2) suggest that Congre ss did not inte

nd section 2244(d) (2) tollin g to app ly to potential Supreme Court rev i ew. Isham , 226 F.3d at 695. Sp ec if ic al ly, se cti on 2244(d)(1)(A) provides that the one-y ear limitations period

begi ns to run after “the date on which the judgment became final by

the conclusion of direct review or the expiration of the time for seeking such review,” whereas Congre ss n eglect ed to use similar language in section 2244(d)(2). Id.

The Supreme Court has decided cases since Isham that cas t that case in a differe nt light. As to Isham ’s first rationale, Duncan confirme d our inte rpreta tion that the word “ State” in section2244(d)(2) mod i fies “post-conviction or other collateral relief.” 533 U.S. at 175-76. As to Isham ’s second ratio nal e, that petitioning for certiorari on the underly ing convictionis not required i n order to seek habeas corpus review, the Supreme Court’s recent decision in Clay v. United States , 123 S. Ct. 1 072, 1075, __ U.S. __ (2003), offers an analo gy for the q uestion be fore us. In tha t case , t he Court determined

that a federal criminal conviction becomesfinal, for the pu rpo ses of ca

lculating the one- ye ar time pe

riod in whichto move to v acate

pursuant to 28 U.S.C. § 2255, when t he time expires for filing a petition

for cer tiorari t o contest the federal appellate court’s af firmance of conviction. Id. at 1075. The Court discussed the meaning of finality
, id. at 1076:
Here, the relevant context is postconviction relief, a context in which finality has a lon g- recognized, clear meani ng: Fin ality

attache s when this

Court aff

irms a convictiono n th e merits on direct review or denies

a petition for a writ of cert iorar i, or when the time for fili ng a certiorari petition expires. See , e.g. , Caspari v. Bo hlen
, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed .2 dNo. 00-2430 Abela v. Martin 7

236 (1994); Griffith v. Kentucky , 479 U.S. 314, 321, n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ; B arefoot v. Este lle
, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed .2 d 1090 (1983); United States v. Johnson , 457 U.S. 53 7 , 54 2, n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (19 82) ; Linkletter v. Walker , 381 U.S. 6 18, 622, n. 5, 85 S. Ct

. 1731, 14 L.Ed.2d 601 (1965). Further, the Court noted that “[t]he Courts of Appeals have uniformly interpre ted ‘dire ct revie

w’ in § 224 4(d)(1) (A) to encompa ss review of a state conviction by this Court.” Clay
, 123 S. Ct. at 10 77, n.3 ( citations omitted). The reasoning underly ing the Court’s decision in Clay is analogous to th e situation before us. The Supreme Court’s direct review of a federal criminal conviction is not identical to its review of a state habeas petition, but in each situation the decision of the federal appellate court and the highest court in the s tate, respectiv el y, is not final, if certiorari is sought, until the Supreme Court denies certiorari, and, if certiorar i is not sought, until the period for seeking certiora ri expires.

Fi na ll y, as t o Isha m ’s third rationale, highlighting the difference in language between se ctions 2244(d)(1)(A) a n d 2244(d)(2) as supportive of the narrow reading of the latter, the Supreme Court

recently sa

id, “‘The . . . presumption--that t he presenc e of a phr

ase in one

provision

and its ab sence in another reveals Congress’[s] design--gr ows weaker

with each difference in the formulation of the provisions under inspection.’” Clay , 123 S . Ct. at 107 9 (cit ing Columbus v. Ours Gar age &Wrecker Serv ., Inc. , 536 U.S. 424, 435-36 (2002)).

Isham
, nevertheless, is

in line with

the major ity of our sister circuits

. The Tent

h Circuit concluded, usingbroad language, that section 2244 (d) (2) did not toll the limitations period where the petitioner h ad a ctually sought c ertiorari in the Supreme Court. Rhine
, 182 F.3d at 1 156. The F ourth Circ uit agreed where, as her e , the petitioner had actually sought certior ari. Crawley v. Catoe , 257 F.3d 395, 399-400 (4th Cir. 8 Abela v. Martin No. 00-2430

2 001). Other circuits, rely ing on Rhine , have reac hed th e same conclusion with respect to petitioners who had n o t
ac tually sought certiorari review—the sce nario presented i n Isham

. See Snow v

. Ault , 238 F.3d 1033, 1035 (8th Cir. 2001); Bunney

v. Mitch ell , 262 F.3d

973, 974 ( 9thCir. 2001); Coates v. Byrd

, 211 F.3d 1 225, 1227( 11th Cir. 20 00); Ott v. Johnson , 192 F.3d 510, 513 (5th Cir. 1 999); see also Isham
, 226 F.3d 691.

U ntil recently the

Third Circuit distinguished situations where certiorari is actually sought from those

where it is not. Inparticu lar, in 19 99, the Th

ird Cir cuit con cluded that the limitations period was tolled during the period where a petitioner actually soug

ht certiorari. See Morris v. Horn , 187 F.3d 333, 336-37 (3d Cir. 1999). However, subsequent to the decisionin Morris , the Third Circu it concluded that the ninety-day

period fo r seek ing certiorari review in the Supreme Court should no t b e considered to toll the limitations period under section

2244(d)(2) wherethe petitioner has not actually sought certiorari. See Nara

v. Frank, 264 F.3d 310, 318 & n.4 (3d

Cir. 2001) ; St o kes v. Dist. Attorney of the Co u nty of Phila. , 247 F.3d

539 (3rd C ir. 2001) . This distinction relied on the use of the wo rd “pen ding” in section 2244(d)(2), concluding that where no petition for cer tiorari i s actually filed, no thi ng can be “pending” under section 2244(d)(2). Nara , 2 64 F.3d at 318. Recently , however, the Third Circuit abandoned this distinction altogether, j oining the majority of the circ

uits. See Miller v. Dragovich , 311 F.3d 574 (3d Cir. 2002). T he court said, “To avoid Duncan
we would have to ho ld that Cong

ress inte nded to dis tinguish between the exerc ise of Supr

eme Courtcertiorari jurisdiction and federal habeas corpus jurisdiction in enacting section 2244(d)(2).” Id. at 579.

The Second and

Seventh Ci

rcuits adopted a narrow version of the approach taken i n Ish am , Coates , Ott , Miller , and Rhine
, limiting their

holdings to a rule that the period during which certior

ari may be soug ht cannot toll the limi

tati on s period where c ertiora

ri is not ac

tually sought. See GutierrezNo. 00-2430 Abela v. Martin 9

v. Schomig

, 233 F.3d 490, 491-92 (7 th Cir. 2000 ); Smaldone

v. Senkowski , 273 F.3d 133, 137-38 (2d Cir. 2001). T h e Seventh Circuit focused on whether there wa s any

“proper ly filed” a pp lication where the petitioner had not sought certiorari to the United Sta tes Supre me Court, concluding that where nothing had been

filed, no thing co

uld be “pr

operly filed” under section 2244(d)(2). Gutierrez , 233 F.3d at 492. The Seventh

Circuit also concluded that where no petition for certiorari had been

filed , nothing could be “pending” under section2244(d)(2). Id. Ultimately, ho wever, the Seven th Circuit declined to address whether “State p os t-conviction” review or “other s tate collateral review” may include a “proper ly filed,” “pending” petition for certiora ri t o the United States Supreme Court. Id. The Second Circuit
, likewise faced with a situation where the petitione r ha d not sought certior ari, ado pted the r

easoning of the Sev enth Circuit, stating, “Our holding is limited t o the facts of this case, and we do not reach the questions that would have been raised if a ce rti orari petition had been properly filed.” Smaldone
, 273 F.3d at 138. The Second a nd Sevent h Circuits continue to disting

uish betwe en situati ons in whicha petition for certior ari review of the

denial of

state habe as relie f is actually soug

ht and those cases where it is not.

Alth ough we find th

is distinction no longer tenable, we take each situation i

nturn. First, as to the question presented here, wh ere a petition for certiorari was actually filed, we f

in d instructive the rea soni ng o f the d issent in White v. Klitzkie
, 281 F.3d 920 ( 9th Cir. 200 2). I n dissent in Whi te , Jud ge Berzon reasons that

“[t]he statu

te surely tolls only

where there is a ‘prope

rly filed ap plic a tion for State post-conviction or other colla teral review.’ But the question is not whether White’s application fits this description . . . butwhether that applicationc o uld still be ‘pending’ once the state courts are finished with it.” Id. at

926 (Berzon, J., dissenting). She goes on to say, id.
, [W]hile the application is one for State post- conviction relief, just as state criminal proceedings can raise federal 10 Abela v. Martin No. 00-2430

issues reviewa

ble in the United Sta

tes Supre me Court, s o can state ha beas pro ceeding s. A st ate criminal pr oceeding

. . . is still “pendi ng” even though the state courts are finished with it, until any petition

filed is finally decided. Si mi la rl y, if there

is a cer tiorari p etition pe

nding to review the valid

i ty of the state’s de

nial of such an applicationfor sta

te post-conviction review, the application is still “pending”--that is, not finally decided. The appli cation does not thereby stop being

a state habeas p roceed ing or turn into a federal rather tha n a state ap plication ; it is just not

finally decided ye t.

We agree. In a slightly

different context, the Supreme C ourt, in Carey v. Saffold

, discussed the word “pen di ng”: “The dictionary defines ‘ pendin g’ (when used as an adjective) as ‘in continuance’ or ‘not y

et decided.’ It similarly

defines the term(when u sed as a prepo siti on) as ‘thro ugh the peri od of continuance . . . of,’ ‘until the . . . comple tion of.’ ” 536 U.S. at 219 (citing Webster’s Third New Interna tional Dictionary 1669 (1993)). We believ e that a p etition for certiorari fr om a state court’s denial of an app licati on for habeas corpus necessitates that the application is still pending, be cause it is “‘i ncontinuance’ or ‘not y et decided.’” Id. The focus of section2244(d)(2) is not on the court in which the application is pending but on the application itse lf. As long as the petition for certiorari involves an application for state cour t relief, section 2 244(d)( 2) requi res t ha t the statute of limitations be tolled. The court where t h e applic ation is pending is irrelev an t. While Duncan clarified that “State” modifies “ rev iew,” it n owhere asserts t

hat “Stat e” also modifies “pending.” Judge Berzon’s dissent in Wh ite con tinues, 281 F.3d. at 926-27:

Duncan v. Walker , 533 U.S. 167, 121 S.Ct. 2120, 150 L.E d .2d 251 (2001), does not suggest a differ ent in terpretation

of § 2244( d)(2). T

hat case based it s holding that a fe deral habeas petition does not toll theNo. 00-2430 Abela v. Martin 11

limitations period on the ground “that an application for federal habeas c orpus re

view is n ot an ‘application for Sta te post-con

viction or other co llatera

l review ’ wit

hi n the meaning of 28 U.S.C. § 2244(d)(2).” Id. at 2129. But an application

for state habeas review, as opposed to an applicationfor federal habeas revie w, is “an application for State post-conviction review or other col lateral

r eview,” regardless of whether that a pplication is bei n g considered

on ap pe al by a state supreme court or by the Un ited State Supreme Court on certiorari. Thus, unlike the reading of § 2244( d )(2) rejected in Duncan, the interpretation

I sugg est gives full meaning to the word “State,” but recognizes that the Un ited States Supr eme Court

. . . can cons ider stat e . . . ca ses when

they raise federal issues. O t herwise, what is the United States Supreme Court hearing when it considers a state habea s petitio n on certiorari? Not an application for federal post-conviction or other collateral review. We agree with Judge Berzo n’s rea soni ng.
Furthermore
, to r equire a petitioner to file his petition seeki ng federal habeas corpus relief before he has soug

h t certiorari to the Supr

eme Court

does not pr

omote the fina

lity of state court determ inations and encourages the simultaneous filing of two actions seeking essentially the same re lief. Thi s disposition would also raise concerns abou t comity and exhaustion. If we chos e to follow the pane l decision

in this case, a prisoner could file his petition for writ of certiorari to the United States Supreme Court onthe day the highest state court denies him collatera l rel ief, but if the United States Supreme Court takes more than

a year to decide his case, the pri soner will be required to file a federal habea s petition befor e the Sup reme Cour t had an op

portunity to rule on

his motion for state

collater al relief. We doubt tha

t Congre ss intended, inthe Anti- Terror ism and Ef

fective Death Penalty Act, to force

prisoners to choose between federal habe as relief and seeking certior ari to the Supreme C ourt, or t

o do both si mu lt an eo us ly. While as a practical matter it is unlikely that 12 Abela v. Martin No. 00-2430

many petitioners will be put in this position, beca use the federal habeas c ourt coul d simply stay the habeas motion pending the Sup rem e Court’s resolution of the certiorari petition, see Miller
, 311 F.3d at 580-81, we do not belie ve it is appropr

iate or necessa

ry to read t

he fede ral statu tes to dictate such a rule.

We now turn to

the quest

ion directly a

t iss ue in Is ham
, altho ugh not presented here, whether or n ot the period for filing certiorari tolls the statute of limitations where no petition is actually filed. Once a state supreme court has ruled
ona petitioner ’s application for state post-conviction relief, the petitioner has ninety

day s to decid

e whethe r to petition for
a writ of certiorari. Sup. C t. R. 13. Section 2244(d)(2) provides that the one-y

ear sta tute of lim

itations is tolled whi le
a properl y filed ap plication for state post-con viction re lief is “pending,” 28 U.S.C. § 2244(d) (2), but i toffers no clue a s to whether anap plication is “pending” during the ninety -day period for seeking Supreme Court review. I f that determination

depends on whethe

r a petiti one r ultimate ly applies for a writ of certiorari, then c ourts and litigants can
never know whether the statute of limitations is running during the period following their state post-convi ction review ; that determination will depend on events tha t are t o happen down the road. Indeed, petitioners who are equally diligent may fa

ce drastica lly different fat es. Imag

ine, for example, two state inmates who file their petitions for state post-conviction relief after three hundred day s in their limitation period have run. Sixty-five days afte

r their applica

tions for s tate postconvictionrelie f are de nied, havin g pa ssed through the highest appellate court in the state, their limitations period under section 2 244(d)( 1) will

expire. On

the seve ntieth da y, each procee ds to another stag e in the pr ocess: one files a petition for habeas corpus relief in federa l district court, and because th at petition is untimely, the petition is denied; the other petitions for a

writ of certiorari from

the United States Supreme Court, and not only is the petition ac cepted f orNo. 00-2430 Abela v. Martin 13

fili ng, but also th e petitioner still ha s sixty -five day s left to file a habeas co rpu s petition after the petition for a writ of certiorari is denied. That

is, the petition for writ of certiorari would have retroact

ively tolled the sec ond petitioner’s limitations period, protecting his ability

to seek section 2254 relief. The f

irst petitioner, who was equally diligent — and who ch os e w ha t i s l ik el y a mor e efficient route to federal habeas review —

will be out

of luck. F

urth ermo re, a ru

le limiting the tolling to only those habea s cor pus p etitioners who actually file f

or certiorari would create a lock- in effect for the pr ison inmate who prepares a certiorari petition for sixty-nine days, but then changes tack on th e s ev en ti et h d ay, decidingthat it wou

ld be wise r strate gicall

y to file the habeas petition i n the d is tr ic t c ou rt . U nd er th e r ul e a pp li ed by a majority of our

sister circuits, the inmate has to file a protective certiorari petition in ord e r to preserve the opportuni ty to later file a habeas petition, gene ratin g an unnecessary

and quite often futile hoop through which the in mate must hop. Failure to file such a protective certior ar i peti tion because

of a tac tical cha

nge the n retroa ctively obliterates the sixty-five day s the inmate had

left, even t hough the clock was not

actually ticking

during the sixty-nine

da ys spent pre paring the cer tiorari p etition to t

he Supre me Court.

It makes litt

le sense to allow e

vents t hat hap pen after a limitations period a

ppears t o have expir

ed to retroa

ctively toll it, and the Supreme Cour t has explicitly rejected such a suggestion

for collateralattacks by fe deral prisoners. In Clay, th e Supreme Court held that the limitations period for a section2255 petition does not run during the n inet y-day p eriod for seeking certiorari, eve n when the petitioner ultimately

does not seek

Supreme Court

review. 123 S. Ct. at 1075. The only

possible basis for distinguishing the Court’s interpretation

in Clay is tha t wher eas there, the Court determined

that a ca se does not becom e “final” in the postconviction contex t unti l the conclusion of the time for seekingSupreme Court review, here, a court would be asked to determine wh en an application is no longer “pending.” Alth ough a case may

not be “f

inal” unt i l the ninety-day 14 Abela v. Martin No. 00-2430

period has ex pired , the a rgumen t go e s, it is no longer “pendi ng” once the state court has actually issued an orde r

. This argume

nt overlo oks the al

most tautol ogical

point that a
casebecomes “final” onceit is no longer “pending”; they are but two sides of the same coin. Moreover, in Car ey , th e Supreme Court rej ected th e notion that a cas e is only “pend ing” for the p urpose s of section 2244(d)(2) until the court issues its order. 536 U.S. at 219-20. The Court there concluded

that anapplica

tion for st ate post-conviction relief is pend ing even during the period betwe en one state court ’ s decisionand th e litigant ’s appea l to the next level. Ac co rd in gl y, “pending” should not be construe d to refe

r only to th e time a c ourt take s to evalu ate a ca se at some

sta ge o f the post-c on viction re

view pro cess; “p ending ” also re fers to th e time allowed an inmate to file a certiorari pet itio n regar dless of w

hether s uch filing actually occurs.
A statute of

limitations should be clear. At any given p oint, courts and litigants should be able to determine whether the lim itations period has begun, is running, is tolled, or ha s expired; whether

a limitations perio d i s running should not depend on events

th at happe n only at a later da te. Whether the limitations period is tolled durin g the ninety day s that a petitioner has to seek certiorari should not depend on whether the petiti oner actually

decides to seek c ertiora

ri.

Becau se Clay explicitly

holds that

federal petitione rs are to receive the benefit of the ninety-day ce rtiorari period even when they seek no such relief, because Careyadvanc es a b road definition of when

a petition

for state

relief i s “pend ing” under

section 2244(d)(2), and because the contrary vie w leads to an unstable limitations scheme pro ne t o s ubsequent

revision, we hold that under section 2244(d)(2)
, the statute of limitations is tolled from the filing of an applicationfor

state post-conviction or other collateral relief until the conclusion of the time for seeking Supreme Court review of th e state ’s final judgment on that application independent

o f whet her the petitioner actually petitions the Supreme Court to review the case.No. 00-2430 Abela v. Martin 15

For the foregoing

reasons, we AFFIRM the judg ment of the districtcourt wit

h respec t to the timeliness of Abela’s habeas petition, and the case is otherwise ret ur ned to the original panel for consideration on the merits. 16 Abela v. Martin No. 00-2430

_______________ DISSENT

_______________ SIL ER, Circuit Judge, dissenting. The posi tion espoused by the m a jority sounds g ood and pr

ovides an easy way to dete rmine whether the one-y ear limitations period under 28 U.S.C. § 2244(d)(1) is tolled. However, it is a position which has been re

pudiate d b y all other Circuits which have in terpre te d

this statut

e and is a stretch o f the law . After a ll, “Our task is to co n strue

what Cong resshas e

nact ed. We begin, as alway

s, with the

langu age of the statute.” Duncan v. Walker , 533 U.S. 167, 172 (2001).

As the ma

jority correc

tly analy zes the issue, it is whether the time under 28 U.S.C. § 2244( d )(2) for tolling purposes also includes the time between the denial of petitioner’s sta te post-convictionclaim and the denial of his petition for a w

rit of certiorari on that claim before the Suprem e Court. The majority holds that

this time is a

lso included. We previo

usly held in Isham v. Ra ndle, 226 F.3d 691, 692 (6th Cir. 2000),

ce rt. den ied , 531 U.S. 1201 (2001), that the time was not included for tollin g purpo ses when

the petiti oner did

notseek certiorari review o f his colla teral at tack. I would extend that holding fro m Isham to the present situation, where the petitioner did file f

or cert iorari to the Supre

me Co urt. In addition to re fu si ng to ap pl y Ish am ’s reas oning to circumstances in w hic h the petitioner has filed for certiorari review foll owing exhaustion of post-conviction relief, the majority of this court, while con cedin g t hat the issue is not properl y before u s, n onethele ss sugg ests in dicta that Isham itself is not good law. Rather than casting doubt upon Isham
, Iwould extend its holding to t he present situation, in which the petitioner did f

ile for cer

tiorari t o the Supre

me Court. Thus, I would find that

the time between May

28, 1998, when the Michigan Supreme Court denied leave on Abela’s motion for relief f rom judg ment until O cto ber 19, 1998, when the Supreme Court denied cert iorari, is not excludable time forNo. 00-2430 Abela v. Martin 17

tolling under 28 U.S.C. § 224 4 (d)(2). The reasons are explained herein.

A s the majority

explains, there is no

Circuit a uthority in Abela’s favor. Morris v. Horn, 187 F.3d 333
, 337 (3d Cir. 1999), is the only case to hold that the statute of

limitations

is tolled under § 2244(d ) during the pendency of a petition for certior ari, following the denial of post-conviction r elief. However, that case has be en rep udiated in Miller v. Dragovich
, 311 F.3d 574, 580 (3d Cir. 2002) . The majority has recog niz ed the plethora

of author

ity i n agre ement wit

h Isham and Miller

. See, e.g , Bunney v . Mi tchell , 241 F.3d 1151, 1155-56 (9th Cir.)
, w ithdrawn on other grounds , 249 F.3d 1188 (9th Cir. 2001) ; C rawle y v. Catoe , 257 F.3d 395, 399-400 (4th Cir. 2 001); Snow v. Au lt , 238 F.3d 1033, 1035 (8th Cir. 2001) ; Coates v. Byrd , 211 F.3d 1225, 1227 (11 th Cir. 2000); Ott v. Johnson , 192 F.3d 510, 513 (5th Cir. 1999); Rhine v. Boone , 182 F.3d 1153, 1156 (10th Cir. 1999).

The authority the majority here uses to justify its dec isi on is from a dissent by Judge B er zon in Whi te v. Klitzk ie , 281 F.3d 920, 926 (9t h Cir . 2002) (Berzon, J., dissenting). But the majority in that case ve ry clearly he ld that“[a] petition for
a writ of certiorari to the United Stat es Sup reme Cour t is simply not an application for state re view.” Id. at 924.

All of these cases follow the same basic reasoning. That is, they hold that the time under which a petition f or cert iorari is
or could be fil ed is n ot con sider ed the “tim e duri ng wh ich a properl y filed application fo r State post-conviction or other collateral review with res pec t to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). I would adopt that reasoning also.

The plain text of the statute does not suggest ot h erwise. Obviously

the pragmatic approach has its merits, bec ause it promotes anefficient

administr

ation of habeas c orpus ca ses, butif Congr

ess sees a need to

chang e th e sy ste m, it may amendth e statute just as it has in the past. The rec en t 18 Abela v. Martin No. 00-2430

decisions in Clay v. Un ited State s , 123 S. Ct. 1072 (2003); and Duncan , 533 U.S. a

t 167, do no t a ffect o

ur decis ion in Isham

. More specifical ly
, Duncan construed § 2244(d)(2) in the
same way that Isham did, that i s, tha t “State” modified b oth “post-conviction” and “other collateral revi ew.” Duncan , 533 U.S. at 172 . Lik

ewise, Cl ayfollowed

the major

ity r ule fromthe Circuits that § 2255 is interpreted to mean that “[A] judgment of conviction

becomes final whe n the time expires for filing a petition for c ertiora ri conte sting the

appella te court’s affirmation of the conviction.” Clay, 123 S. Ct. at 1075. However, that case involved the issue of when the limitations began to run

on a federal

convicti on, not a st

ate collateral attack. And, although tha t decisio n sta

tes that “[t]he Courts of Appeals have uniformly

interpreted ‘direct

review’ in§ 2244(d)(1)(A) to encomp ass revi ew of a s tate conviction by this Court,” id. at 1077 n.3, it never takes up the issue we are facing, the interpre

tation of § 2244(d)(2). Therefore, I wou

ld continue to follow Isham in finding that “the de nial of state post-conviction relief becomes final. . . after a decisi on by

the state ’s highe st

court,” id. at 695, and I would revers e the judg

ment of the

district cour t finding Abela’s habeas corpus petition was timely filed.