1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0374P (6th Cir.)

File Name: 03a0374p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

KEVIN MARK ABELA,

Petitioner-Appellant,

v.

WILLIAM MARTIN, Director,

Michigan Department of

Corrections,

Respondent-Appellee.

X

-

-

-

-

>

,

-

-

-

-

-

N

No. 00-2430

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-72095—Robert H. Cleland, District Judge.

Argued: March 26, 2003

Decided and Filed: October 22, 2003 

Before: BOGGS, Chief Circuit Judge; MARTIN, SILER,

BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, GIBBONS, and ROGERS, Circuit

Judges.

2 Abela v. Martin No. 00-2430

_________________

COUNSEL

ARGUED: James Sterling Lawrence, Detroit, Michigan, for

Appellant. William C. Campbell, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON BRIEF: James Sterling Lawrence, Detroit, Michigan,

for Appellant. William C. Campbell, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

MARTIN, J., delivered the opinion of the court, in which

DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ.,

joined. SILER, J. (pp. 16-18), delivered a separate dissenting

opinion, in which BOGGS, C. J., BATCHELDER,

GIBBONS, and ROGERS, JJ., joined.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. This action

arises from a Michigan manslaughter conviction and

subsequent petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. The district court found the habeas petition

timely filed but denied it on the merits. Kevin Mark Abela

appealed that denial. A panel of this court heard argument in

this case, but it declined to reach the merits. The panel held

that under 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

not tolled by Abela’s petition for writ of certiorari from the

United States Supreme Court following post-conviction

litigation in state court. The panel held that Abela’s habeas

petition was barred by the statute of limitations set forth in 28

U.S.C. § 2244(d)(1). A majority of the active judges of this

court having agreed to rehear the case en banc, we now hold

that Abela’s petition was timely filed.
No. 00-2430 Abela v. Martin 3

Abela was convicted by a jury of voluntary manslaughter

and carrying a concealed weapon on July 24, 1991. He was

sentenced to a term of seven to fifteen years for voluntary

manslaughter and a concurrent sentence of forty months to

five years for carrying a concealed weapon. 

Abela appealed his conviction on February 17, 1992, by

raising three issues in the 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 delayed application for leave

to appeal these issues. People v. Abela, No. 100783 (Mich.

Mar. 31, 1995). 

On August 20, 1996, Abela filed a motion for relief from

judgment in the Oakland County Circuit Court, raising six

claims. The motion was denied “for lack of merit on the

grounds presented.” People v. Abela, No. 90-101083

(Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the

same six issues on appeal to the Michigan Court of Appeals,

which also denied leave to appeal and a motion to remand.

People v. Abela, No. 200930 (Mich. Ct. App. July 22, 1997).

On August 9, 1997, Abela again raised these six issues in his

delayed application for leave to appeal to the Michigan

Supreme Court, which likewise denied his petition. People

v. Abela, No. 110260 (Mich. May 28, 1998). On August 3,

1998, Abela filed a petition for certiorari with the United

States Supreme Court, which was denied on October 19,

1998. Abela v. Michigan, 525 U.S. 948 (1998).

On April 26, 1999, before his parole term had ended, Abela

sought a writ of habeas corpus pursuant to section 2254,

raising the same claims as in his motion for relief from

judgment (except for his claim regarding the trial court’s

decision to 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

for a certificate of appealability.

Abela appealed his denial of the motion to this court. We

granted his certificate of appealability on the issues before us

on April 20, 2001.

Between August 20, 1996, and May 28, 1998, Abela sought

state collateral relief in the Michigan trial, appellate, and high

courts. The limitations period was clearly tolled during this

period because Abela’s state collateral relief motions were

pending in the various state courts. See Carey v. Saffold, 536

U.S. 214, 220 (2002). In Carey, the Court held that “until the

application has achieved final resolution through the State's

post-conviction procedures, by definition it remains

‘pending.’” Id. Thus, the key issue before us today is

whether the one-year statute of limitations applicable to

federal habeas corpus petitions is also tolled during the period

in which a petitioner may seek, and the Supreme Court

considers whether to grant, certiorari review of the denial of

the petitioner’s state collateral relief motion. 

Title 28 U.S.C. § 2244(d)(1) provides a one-year period of

limitations for people “in custody pursuant to the judgment of

a State court” to file an application for a writ of habeas

corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of

this one-year period as follows: “The time during which a

properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or

claim is pending shall not be counted toward any period of

limitation under this subsection.”

For prisoners whose convictions became final prior to

April 24, 1996, the effective date of the Anti-Terrorism and

Effective Death Penalty Act, the one-year limitations period

runs against them as of that date. Austin v. Mitchell, 200 F.3d

391, 393 (6th Cir. 1999). Abela’s judgment of conviction

became final prior to April 24, 1996, so his one-year

limitations period began running on that date.
No. 00-2430 Abela v. Martin 5

The Supreme Court recently concluded that a federal

habeas corpus petition does not constitute “State postconviction or other collateral review” in order to toll the oneyear limitations period pursuant to section 2244(d)(2).

Duncan v. Walker, 533 U.S. 167, 182 (2001). Significantly,

for our purposes, the Court construed the phrase “State postconviction or other collateral review” to mean “State postconviction [review]” and “other State collateral review.” Id.

at 175-76. Accordingly, the section 2241(d)(1) limitations

period is not tolled while federal habeas corpus proceedings

are pending, because federal habeas proceedings are neither

“State post-conviction” nor “other State collateral review.”

Id. at 181-82. Thus, the more narrow question presented here

is whether a petition for writ of certiorari to the Supreme

Court may constitute a “properly filed” and “pending”

application for “State post-conviction [review]” or “other

State collateral review” so as to 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),

upon which the panel opinion relied, dealt with the situation

where a petitioner could have sought, but did not seek,

certiorari review of his Ohio collateral review motion. We

held that “the one year limitations period is not tolled during

the ninety days in which defendant could have petitioned the

Supreme Court for a writ of certiorari . . . .” Id. at 692.

First, we reasoned, based on the statute’s plain language,

the word “State” in section 2244(d)(2) modifies “postconviction 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-conviction relief.’ Neither

is such a petition ‘other state collateral relief.’” Id. Thus, we

decided, as had the Tenth Circuit, that “a petition for writ of

certiorari to the United States Supreme Court is ‘simply not

an application for state review of any kind.’” Id. (citing Rhine

v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999)). We also

reasoned that our holding was bolstered by the fact that

6 Abela v. Martin No. 00-2430

seeking certiorari in the United States Supreme Court is not

a mandatory part of state court review, as it is not a

prerequisite to pursuing habeas corpus. Fay v. Noia, 372 U.S.

391, 435 (1963). Finally, we concluded that differences in

section 2244(d)(1)(A) and section 2244(d)(2) suggest that

Congress did not intend section 2244(d)(2) tolling to apply to

potential Supreme Court review. Isham, 226 F.3d at 695.

Specifically, section 2244(d)(1)(A) provides that the one-year

limitations period begins 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

Congress neglected to use similar language in section

2244(d)(2). Id. 

The Supreme Court has decided cases since Isham that cast

that case in a different light. As to Isham’s first rationale,

Duncan confirmed our interpretation that the word “State” in

section 2244(d)(2) modifies “post-conviction or other

collateral relief.” 533 U.S. at 175-76. As to Isham’s second

rationale, that petitioning for certiorari on the underlying

conviction is not required in order to seek habeas corpus

review, the Supreme Court’s recent decision in Clay v. United

States, 123 S. Ct. 1072, 1075, __ U.S. __ (2003), offers an

analogy for the question before us. In that case, the Court

determined that a federal criminal conviction becomes final,

for the purposes of calculating the one-year time period in

which to move to vacate pursuant to 28 U.S.C. § 2255, when

the time expires for filing a petition for certiorari to contest

the federal appellate court’s affirmance 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 long-recognized, clear

meaning: Finality attaches when this Court affirms a

conviction on the merits on direct review or denies a

petition for a writ of certiorari, or when the time for

filing a certiorari petition expires. See, e.g., Caspari v.

Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d
No. 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); Barefoot v.

Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d

1090 (1983); United States v. Johnson, 457 U.S. 537,

542, n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982);

Linkletter v. Walker, 381 U.S. 618, 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 interpreted ‘direct review’ in § 2244(d)(1)(A) to

encompass review of a state conviction by this Court.” Clay,

123 S. Ct. at 1077, n.3 (citations omitted). The reasoning

underlying the Court’s decision in Clay is analogous to the

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 state,

respectively, is not final, if certiorari is sought, until the

Supreme Court denies certiorari, and, if certiorari is not

sought, until the period for seeking certiorari expires. 

Finally, as to Isham’s third rationale, highlighting the

difference in language between sections 2244(d)(1)(A) and

2244(d)(2) as supportive of the narrow reading of the latter,

the Supreme Court recently said, “‘The . . . presumption--that

the presence of a phrase in one provision and its absence in

another reveals Congress’[s] design--grows weaker with each

difference in the formulation of the provisions under

inspection.’” Clay, 123 S. Ct. at 1079 (citing Columbus v.

Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435-36

(2002)).

Isham, nevertheless, is in line with the majority of our sister

circuits. The Tenth Circuit concluded, using broad language,

that section 2244(d)(2) did not toll the limitations period

where the petitioner had actually sought certiorari in the

Supreme Court. Rhine, 182 F.3d at 1156. The Fourth Circuit

agreed where, as here, the petitioner had actually sought

certiorari. Crawley v. Catoe, 257 F.3d 395, 399-400 (4th Cir.

8 Abela v. Martin No. 00-2430

2001). Other circuits, relying on Rhine, have reached the

same conclusion with respect to petitioners who had not

actually sought certiorari review—the scenario presented in

Isham. See Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.

2001); Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001);

Coates v. Byrd, 211 F.3d 1225, 1227(11th Cir. 2000); Ott v.

Johnson, 192 F.3d 510, 513 (5th Cir. 1999); see also Isham,

226 F.3d 691. 

Until recently the Third Circuit distinguished situations

where certiorari is actually sought from those where it is not.

In particular, in 1999, the Third Circuit concluded that the

limitations period was tolled during the period where a

petitioner actually sought certiorari. See Morris v. Horn, 187

F.3d 333, 336-37 (3d Cir. 1999). However, subsequent to the

decision in Morris, the Third Circuit concluded that the

ninety-day period for seeking certiorari review in the

Supreme Court should not be considered to toll the limitations

period under section 2244(d)(2) where the petitioner has not

actually sought certiorari. See Nara v. Frank, 264 F.3d 310,

318 & n.4 (3d Cir. 2001); Stokes v. Dist. Attorney of the

County of Phila., 247 F.3d 539 (3rd Cir. 2001). This

distinction relied on the use of the word “pending” in section

2244(d)(2), concluding that where no petition for certiorari is

actually filed, nothing can be “pending” under section

2244(d)(2). Nara, 264 F.3d at 318. Recently, however, the

Third Circuit abandoned this distinction altogether, joining

the majority of the circuits. See Miller v. Dragovich, 311

F.3d 574 (3d Cir. 2002). The court said, “To avoid Duncan

we would have to hold that Congress intended to distinguish

between the exercise of Supreme Court certiorari jurisdiction

and federal habeas corpus jurisdiction in enacting section

2244(d)(2).” Id. at 579.

The Second and Seventh Circuits adopted a narrow version

of the approach taken in Isham, Coates, Ott, Miller, and

Rhine, limiting their holdings to a rule that the period during

which certiorari may be sought cannot toll the limitations

period where certiorari is not actually sought. See Gutierrez
No. 00-2430 Abela v. Martin 9

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

v. Senkowski, 273 F.3d 133, 137-38 (2d Cir. 2001). The

Seventh Circuit focused on whether there was any “properly

filed” application where the petitioner had not sought

certiorari to the United States Supreme Court, concluding that

where nothing had been filed, nothing could be “properly

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

section 2244(d)(2). Id. Ultimately, however, the Seventh

Circuit declined to address whether “State post-conviction”

review or “other state collateral review” may include a

“properly filed,” “pending” petition for certiorari to the

United States Supreme Court. Id. The Second Circuit,

likewise faced with a situation where the petitioner had not

sought certiorari, adopted the reasoning of the Seventh

Circuit, stating, “Our holding is limited to the facts of this

case, and we do not reach the questions that would have been

raised if a certiorari petition had been properly filed.”

Smaldone, 273 F.3d at 138. The Second and Seventh Circuits

continue to distinguish between situations in which a petition

for certiorari review of the denial of state habeas relief is

actually sought and those cases where it is not. 

Although we find this distinction no longer tenable, we take

each situation in turn. First, as to the question presented here,

where a petition for certiorari was actually filed, we find

instructive the reasoning of the dissent in White v. Klitzkie,

281 F.3d 920 (9th Cir. 2002). In dissent in White, Judge

Berzon reasons that “[t]he statute surely tolls only where there

is a ‘properly filed application for State post-conviction or

other collateral review.’ But the question is not whether

White’s application fits this description . . . but whether that

application could 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 reviewable in the United States Supreme Court, so

can state habeas proceedings. A state criminal proceeding

. . . is still “pending” even though the state courts are

finished with it, until any petition filed is finally decided.

Similarly, if there is a certiorari petition pending to

review the validity of the state’s denial of such an

application for state post-conviction review, the

application is still “pending”--that is, not finally decided.

The application does not thereby stop being a state

habeas proceeding or turn into a federal rather than a

state application; it is just not finally decided yet.

We agree. In a slightly different context, the Supreme Court,

in Carey v. Saffold, discussed the word “pending”: “The

dictionary defines ‘pending’ (when used as an adjective) as

‘in continuance’ or ‘not yet decided.’ It similarly defines the

term (when used as a preposition) as ‘through the period of

continuance . . . of,’ ‘until the . . . completion of.’” 536 U.S.

at 219 (citing Webster’s Third New International Dictionary

1669 (1993)). We believe that a petition for certiorari from a

state court’s denial of an application for habeas corpus

necessitates that the application is still pending, because it is

“‘in continuance’ or ‘not yet decided.’” Id. The focus of

section 2244(d)(2) is not on the court in which the application

is pending but on the application itself. As long as the

petition for certiorari involves an application for state court

relief, section 2244(d)(2) requires that the statute of

limitations be tolled. The court where the application is

pending is irrelevant. While Duncan clarified that “State”

modifies “review,” it nowhere asserts that “State” also

modifies “pending.”

Judge Berzon’s dissent in White continues, 281 F.3d. at

926-27:

Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150

L.Ed.2d 251 (2001), does not suggest a different

interpretation of § 2244(d)(2). That case based its

holding that a federal habeas petition does not toll the
No. 00-2430 Abela v. Martin 11

limitations period on the ground “that an application for

federal habeas corpus review is not an ‘application for

State post-conviction or other collateral review’ within

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

an application for state habeas review, as opposed to an

application for federal habeas review, is “an application

for State post-conviction review or other collateral

review,” regardless of whether that application is being

considered on appeal by a state supreme court or by the

United State Supreme Court on certiorari. Thus, unlike

the reading of § 2244(d)(2) rejected in Duncan, the

interpretation I suggest gives full meaning to the word

“State,” but recognizes that the United States Supreme

Court . . . can consider state . . . cases when they raise

federal issues. Otherwise, what is the United States

Supreme Court hearing when it considers a state habeas

petition on certiorari? Not an application for federal

post-conviction or other collateral review.

We agree with Judge Berzon’s reasoning.

Furthermore, to require a petitioner to file his petition

seeking federal habeas corpus relief before he has sought

certiorari to the Supreme Court does not promote the finality

of state court determinations and encourages the simultaneous

filing of two actions seeking essentially the same relief. This

disposition would also raise concerns about comity and

exhaustion. If we chose to follow the panel decision in this

case, a prisoner could file his petition for writ of certiorari to

the United States Supreme Court on the day the highest state

court denies him collateral relief, but if the United States

Supreme Court takes more than a year to decide his case, the

prisoner will be required to file a federal habeas petition

before the Supreme Court had an opportunity to rule on his

motion for state collateral relief. We doubt that Congress

intended, in the Anti-Terrorism and Effective Death Penalty

Act, to force prisoners to choose between federal habeas relief

and seeking certiorari to the Supreme Court, or to do both

simultaneously. While as a practical matter it is unlikely that

12 Abela v. Martin No. 00-2430

many petitioners will be put in this position, because the

federal habeas court could simply stay the habeas motion

pending the Supreme Court’s resolution of the certiorari

petition, see Miller, 311 F.3d at 580-81, we do not believe it

is appropriate or necessary to read the federal statutes to

dictate such a rule.

We now turn to the question directly at issue in Isham,

although not presented here, whether or not the period for

filing certiorari tolls the statute of limitations where no

petition is actually filed. Once a state supreme court has ruled

on a petitioner’s application for state post-conviction relief,

the petitioner has ninety days to decide whether to petition for

a writ of certiorari. Sup. Ct. R. 13. Section 2244(d)(2)

provides that the one-year statute of limitations is tolled while

a properly filed application for state post-conviction relief is

“pending,” 28 U.S.C. § 2244(d)(2), but it offers no clue as to

whether an application is “pending” during the ninety-day

period for seeking Supreme Court review. If that

determination depends on whether a petitioner ultimately

applies for a writ of certiorari, then courts and litigants can

never know whether the statute of limitations is running

during the period following their state post-conviction review;

that determination will depend on events that are to happen

down the road.

Indeed, petitioners who are equally diligent may face

drastically different fates. Imagine, for example, two state

inmates who file their petitions for state post-conviction relief

after three hundred days in their limitation period have run.

Sixty-five days after their applications for state postconviction relief are denied, having passed through the

highest appellate court in the state, their limitations period

under section 2244(d)(1) will expire. On the seventieth day,

each proceeds to another stage in the process: one files a

petition for habeas corpus relief in federal district court, and

because that 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 accepted for
No. 00-2430 Abela v. Martin 13

filing, but also the petitioner still has sixty-five days left to

file a habeas corpus petition after the petition for a writ of

certiorari is denied. That is, the petition for writ of certiorari

would have retroactively tolled the second petitioner’s

limitations period, protecting his ability to seek section 2254

relief. The first petitioner, who was equally diligent — and

who chose what is likely a more efficient route to federal

habeas review — will be out of luck. Furthermore, a rule

limiting the tolling to only those habeas corpus petitioners

who actually file for certiorari would create a lock-in effect

for the prison inmate who prepares a certiorari petition for

sixty-nine days, but then changes tack on the seventieth day,

deciding that it would be wiser strategically to file the habeas

petition in the district court. Under the rule applied by a

majority of our sister circuits, the inmate has to file a

protective certiorari petition in order to preserve the

opportunity to later file a habeas petition, generating an

unnecessary and quite often futile hoop through which the

inmate must hop. Failure to file such a protective certiorari

petition because of a tactical change then retroactively

obliterates the sixty-five days the inmate had left, even though

the clock was not actually ticking during the sixty-nine days

spent preparing the certiorari petition to the Supreme Court.

It makes little sense to allow events that happen after a

limitations period appears to have expired to retroactively toll

it, and the Supreme Court has explicitly rejected such a

suggestion for collateral attacks by federal prisoners. In Clay,

the Supreme Court held that the limitations period for a

section 2255 petition does not run during the ninety-day

period for seeking certiorari, even 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 that whereas there, the Court

determined that a case does not become “final” in the

postconviction context until the conclusion of the time for

seeking Supreme Court review, here, a court would be asked

to determine when an application is no longer “pending.”

Although a case may not be “final” until the ninety-day

14 Abela v. Martin No. 00-2430

period has expired, the argument goes, it is no longer

“pending” once the state court has actually issued an order.

This argument overlooks the almost tautological point that a

case becomes “final” once it is no longer “pending”; they are

but two sides of the same coin. Moreover, in Carey, the

Supreme Court rejected the notion that a case is only

“pending” for the purposes of section 2244(d)(2) until the

court issues its order. 536 U.S. at 219-20. The Court there

concluded that an application for state post-conviction relief

is pending even during the period between one state court’s

decision and the litigant’s appeal to the next level.

Accordingly, “pending” should not be construed to refer only

to the time a court takes to evaluate a case at some stage of

the post-conviction review process; “pending” also refers to

the time allowed an inmate to file a certiorari petition

regardless of whether such filing actually occurs.

A statute of limitations should be clear. At any given point,

courts and litigants should be able to determine whether the

limitations period has begun, is running, is tolled, or has

expired; whether a limitations period is running should not

depend on events that happen only at a later date. Whether

the limitations period is tolled during the ninety days that a

petitioner has to seek certiorari should not depend on whether

the petitioner actually decides to seek certiorari.

Because Clay explicitly holds that federal petitioners are to

receive the benefit of the ninety-day certiorari period even

when they seek no such relief, because Carey advances a

broad definition of when a petition for state relief is

“pending” under section 2244(d)(2), and because the contrary

view leads to an unstable limitations scheme prone to

subsequent revision, we hold that under section 2244(d)(2),

the statute of limitations is tolled from the filing of an

application for state post-conviction or other collateral relief

until the conclusion of the time for seeking Supreme Court

review of the state’s final judgment on that application

independent of whether 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 judgment of the

district court with respect to the timeliness of Abela’s habeas

petition, and the case is otherwise returned to the original

panel for consideration on the merits. 

16 Abela v. Martin No. 00-2430

_______________

DISSENT

_______________

SILER, Circuit Judge, dissenting. The position espoused

by the majority sounds good and provides an easy way to

determine whether the one-year limitations period under 28

U.S.C. § 2244(d)(1) is tolled. However, it is a position which

has been repudiated by all other Circuits which have

interpreted this statute and is a stretch of the law. After all,

“Our task is to construe what Congress has enacted. We

begin, as always, with the language of the statute.” Duncan

v. Walker, 533 U.S. 167, 172 (2001).

As the majority correctly analyzes 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 state

post-conviction claim and the denial of his petition for a writ

of certiorari on that claim before the Supreme Court. The

majority holds that this time is also included. We previously

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

cert. denied, 531 U.S. 1201 (2001), that the time was not

included for tolling purposes when the petitioner did not seek

certiorari review of his collateral attack. I would extend that

holding from Isham to the present situation, where the

petitioner did file for certiorari to the Supreme Court. In

addition to refusing to apply Isham’s reasoning to

circumstances in which the petitioner has filed for certiorari

review following exhaustion of post-conviction relief, the

majority of this court, while conceding that the issue is not

properly before us, nonetheless suggests in dicta that Isham

itself is not good law. Rather than casting doubt upon Isham,

I would extend its holding to the present situation, in which

the petitioner did file for certiorari to the Supreme 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 from judgment until October 19, 1998, when the

Supreme Court denied certiorari, is not excludable time for
No. 00-2430 Abela v. Martin 17

tolling under 28 U.S.C. § 2244(d)(2). The reasons are

explained herein.

As the majority explains, there is no Circuit authority 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

certiorari, following the denial of post-conviction relief.

However, that case has been repudiated in Miller v.

Dragovich, 311 F.3d 574, 580 (3d Cir. 2002). The majority

has recognized the plethora of authority in agreement with

Isham and Miller. See, e.g, Bunney v. Mitchell, 241 F.3d

1151, 1155-56 (9th Cir.), withdrawn on other grounds, 249

F.3d 1188 (9th Cir. 2001); Crawley v. Catoe, 257 F.3d 395,

399-400 (4th Cir. 2001); Snow v. Ault, 238 F.3d 1033, 1035

(8th Cir. 2001); Coates v. Byrd, 211 F.3d 1225, 1227 (11th

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 decision

is from a dissent by Judge Berzon in White v. Klitzkie, 281

F.3d 920, 926 (9th Cir. 2002) (Berzon, J., dissenting). But

the majority in that case very clearly held that “[a] petition for

a writ of certiorari to the United States Supreme Court is

simply not an application for state review.” Id. at 924.

All of these cases follow the same basic reasoning. That is,

they hold that the time under which a petition for certiorari is

or could be filed is not considered the “time during which a

properly filed application for State post-conviction or other

collateral review with respect 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 otherwise.

Obviously the pragmatic approach has its merits, because it

promotes an efficient administration of habeas corpus cases,

but if Congress sees a need to change the system, it may

amend the statute just as it has in the past. The recent

18 Abela v. Martin No. 00-2430

decisions in Clay v. United States, 123 S. Ct. 1072 (2003);

and Duncan, 533 U.S. at 167, do not affect our decision in

Isham. 

More specifically, Duncan construed § 2244(d)(2) in the

same way that Isham did, that is, that “State” modified both

“post-conviction” and “other collateral review.” Duncan,

533 U.S. at 172. Likewise, Clay followed the majority rule

from the Circuits that § 2255 is interpreted to mean that “[A]

judgment of conviction becomes final when the time expires

for filing a petition for certiorari contesting the appellate

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 conviction, not a state

collateral attack. And, although that decision states that “[t]he

Courts of Appeals have uniformly interpreted ‘direct review’

in § 2244(d)(1)(A) to encompass review of a state conviction

by this Court,” id. at 1077 n.3, it never takes up the issue we

are facing, the interpretation of § 2244(d)(2).

Therefore, I would continue to follow Isham in finding that

“the denial of state post-conviction relief becomes final. . .

after a decision by the state’s highest court,” id. at 695, and I

would reverse the judgment of the district court finding

Abela’s habeas corpus petition was timely filed.