1 The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri, sitting by designation.

2 The Honorable Henry L. J ones, Jr., United States Magistrate Judge for the Eastern District of Arkansas, to whom th e case was referred pursuant to the consent of the parties. See 28 U.S.C. § 636(c)(1). 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-2755

___________ Stanley Isaac Nelson, *
* Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Larry Norris, Director of the Arkansas * Department of Correction, *
* Appellee. *

___________ Submitted: June 18, 2010 Filed: August 26, 2010

___________ Before SMITH and HANSEN, Circuit Judges, and WEBBER, 1 District Judge.

___________ SMITH, Circuit Judge. Stanley Nelson, an Arkansas inmate c onvicted of discharging a firearm from a vehicle and sentenced to 30 years' imprisonment, appeals the district court's 2order dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254 as untimely.-2- We granted Nelson's application for certif icate of appealability to determine the following questions:

1. Whether Nelson's application fo r a writ of habeas corpus under 28 U.S.C. Section 2254 was timely filed in the district court, because Nelson's petition for state post- conviction relief under Ark. R. Crim. P. 37 was "properly filed" in the Arkansas Circuit Court within the meaning of 28 U.S.C. Section 2244(d)(2), and the statue of limitations of 28 U.S.C. [Section] 2244(d)(1) was therefore tolled while the Rule 37 petition was pending in the state court.
2. Whether, even if Nelson's Rule 37 petition was not "properly filed" in the Arkansas Circuit Court, Nelson's application under 28 U.S.C. Section 2254 was timely filed in the district court, because the statute of limitations of 28 U.S.C. Section 2244(d)(1) should be equitably tolled.

We hold that (1) Nelson's unverified Rule 37 petition did not toll the running of the one-year statute of limitations for filing a federal habeas petition because the petition was not filed in accordance with Ru le 37's verification requirement and (2) Nelson is not entitled to equitable tolling. Acco rdingly, we affirm the district court's judgment.

I. Background Nelson was convicted of unlawful discharge of a firearm in state court and sentenced to 30 years' imprisonment. Th e Arkansas Court of Appeals affirmed Nelson's conviction and sentence. Nelson v. State , No. CACR 02-867, 2003 WL 21019602 (Ark. Ct. App. May 7, 2003) (unpublished) (" Nelson I "). On June 19, 2003, the Arkansas Supreme Court denied Ne lson's petition for discretionary review.

On August 15, 2003, Nelson filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37 w ith the state trial court. The petition was-3- signed and verified onlyby Nelson's postconvicti on counsel—not by Nelson personally. The state trial court, after a h earing on the merits, denied Nelson's request for relief under Rule 37.

Nelson then appealed to the Arkansas Supreme Court, whic h declined to reach the merits of his arguments on appeal

because appellant's petition was not pr operly verified. Arkansas Rule of Criminal Procedure 37.1(d) requires that the petition be verified. The verification requirement for a postconviction relief petition is of substantive importance to prevent perjury. Carey v. State , 268 Ark. 332, 596 S.W.2d 688 (1980). To serve this purpose, a petitioner must execute the verification, and if the petitione r is represented by counsel, counsel may not sign and verify the petition for him. Boyle v. State , 362 Ark. 248, 208 S.W.3d 134, [sic] (2005) ( per curiam ).

Nelson v. State , 213 S.W.3d 645, 646 (Ark. 2005) (" Nelson II "). Because Nelson's "petition was not verified as required by Ark. R. Crim. P. 37.1(d)," the Arkansas Supreme Court dismissed the petition. Id

. Nelson filed a petition for rehearing, contending that the Arkansas Supreme Court erred in dismissi ng his appeal because Boyle had not been decided at the time that he filed his Rule 37 petition. Nelson v. State , No. CR 04-732, 2005 WL 3074381, at *1 (Ark. Nov. 17, 2005) (unpublished per curiam) (" Nelson III "). According to Nelson, "application of Boyle retroactively would violate due process in that appellant's counsel should have been permitte d to verify the petiti on on behalf of the petitioner until that decision provided notice of the requirement." Id . The Arkansas Supreme Court disagreed, stating:

Appellant argues that there has been a practice to allow counsel to verify pleadings on behalf of the client, citing a civil case in support. He further cites Ark. R. Civ. P. 11 for the proposition that an attorney's signature is-4- a veritable verification. This court has recognized that postconviction relief proceedings are civil in natureand applied the Rules of Appellate Procedure-Civil when necessary. Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003). In Sanders , however, we declined to apply a rule of civil procedure, Ark. R. Civ. P. 56, to criminal cases. Id . at 25, 98 S.W.3d at 41. We do not apply Ark. R. Civ. P. 11 here, as Ark. R. Crim. P. 37.1(d) very clearly requires that the petition must be verified. The basis for permitting an attorney to simply sign pleadings in civil cases, and not cause the pleading to be verified, is not applicable to postconviction proceedings, and our case law has provided ample notice to that effect , well before Boyle. As the State points out in its brief, the concern with the potential for perjury is heightened in a postconviction proceeding where the attorney's client has already been convicted and is incarcerated. Moreover, the attorn ey representing the petitioner under Ark. R. Crim. P. 37.1 almost certain ly did not represent that petitioner at trial; the trial attorney's conduct mu st be throughly [sic] examined and questioned by counsel for a petitioner under Ark. R. Crim. P. 37.1. The attorney in a postconviction pr oceeding would have no personal knowledge of many of the facts in the petition to be verified. It is well settled that the verification requirement for a postconviction-relief petition is of substantive importance to prevent perjury. Shaw v. State , ___Ark.___,___ S.W.3d___(June 30, 2005) (per curiam ) (citing Bolye [sic] and Knappenberger v. State , 278 Ark. 382, 647 S.W.2d 417 (1983)); Worthem v. State , 347 Ark. 809, 66 S.W.3d 665 (2002) (per curiam ); Carey v. State , 268 Ark. 332, 596 S.W.2d 688 (1980). That purpose is not served where counsel verifies the petition on behalf of his client. A ppellant urges that this requirement that the petitioner personally verify his petiti on was a new and unforeseeable rule of law, but, prior to Boyle , this court stated that postconviction relief as sought through a petition under Rule 37. 1 "requires that the petitioner be in custody and that the petition be verifiedby the petitioner ." Westbrook v. State , 286 Ark. 192, 691 S.W.2d 123 (1985) (emphasis added). Boyle merely confirmed a position already announ ced by this court, one that should not have been unexpected . As there was no error of law or fact in the opinion, we must deny appe llant's petition for rehearing.-5- Id . at *1–2 (emphasis added in part).

On August 21, 2006, Nelson filed a petiti on for federal habeas relief pursuant to 28 U.S.C. § 2254, alleging that he was denieda fair and impartial trial, the evidence is insufficient to support the verdict, his sentence is cruel and unusual, his conviction was obtained by false testimony, and his trial counsel was ine ffective. In response, the State argued that Nelson's petition was time barred by the one-year statute of limitations in 28 U.S.C. § 2244(d)(1) and thathe was not entitled to statutory tolling for the time during which his petition for state collateral relief was pending because his petition did not meet the verification requirements of Rule 37 and thus was not "properly filed." The State additionally ar gued that Nelson had not asserted in his habeas petition that he was en titled to equitable tolling. The district court gave Nelson an opportunity to reply within 30 days to th e arguments raised in the State's response.

The court then ordered the State to submit a supplemental brief on whether Boyle was firmly established and regularly fo llowed at the time that Nelson filed his Rule 37 petition. In its supplemental response, the State explained:

The United States Court of Appeals for the Eighth Circuit addressed the issue of whether a state rule regarding post-conviction[ ] petitions must be firmly established and regularly followed before it has any effect on the statute of limitations found in 28 U.S.C. § 2244, in their decision in Walker v. Norris , 436 F.3d 1026 (8th Cir. 2006). It is clear, from that decision, that Petitioner is not entitled to statutory tolling, however, it appears that this Court is interested in whether he is entitled to equitable tolling.

According to the State, "[t]he Arkansas Rule requiring a post-conviction petition to be verified has been in effect for at least the last 26 years," and Nelson's post-conviction counsel's error in not rec ognizing that rule di d not entitle Nelson to equitable tolling. Nelson failed to repl y to the State's supplemental response.-6- The district court dismissed Nelson's habeas petition, finding that Nelson's case was precluded by Walker , where this court held thatan "unverified petition was not 'properly filed' for purposes of tolling the limitations period." Haliburton v. Norris , No. 5:05CV00306 WRW/JTR, 2007 WL 2343872, at *4 (E.D. Ark. Aug. 13, 2007) (unpublished order) (citing Walker , 436 F.3d at 1031).

Nelson then filed a motion for relief fro m judgment under Federal Rule of Civil Procedure 60. Nelson argued that the distri ct court overlooked and thus failed to address his equitable-tolling argument. In response, the State argued that the court should dismiss Nelson's equitable-tolling claim because his Rule 60 motion was a successive habeas petition; in the alternative, the State contended that Nelson failed to make the required showing of excepti onal circumstances to warrant relief under Rule 60. Nelson replied that his Rule60 motion was not a successive petition.

The district court concluded that Ne lson's Rule 60 motion was not a successive petition but nonetheless deni ed relief. The court noted that, although Nelson mentioned equitable tolling in his motion for extension of time to reply to the State's supplemental response to the petition and in his motion for reconsideration of the court's order denying counsel, "he offered no support for such a claim and the court simply did not consider it as having been properly raised." Alternatively, the court held that even if Nelson had properly raised his argument, he was not entitled to equitable tolling because Arkansas's verifi cation requirement had long been the rule of law even before Boyle and that the application of a state's procedural rule is not an extraordinary circumstance that warrants equitable tolling.

II. Discussion We first address whether Nelson's habeas petition was timely filed in the district court. The timeliness of Nelson's habeas petition depends upon whether Nelson's petition for state postconviction relief under Rule 37 was "properly filed" in the state trial court within the meaning of § 2244(d)(2 ). If Nelson "properly filed" his Rule 37-7- petition, then the statute of limitations of § 2244(d)(1) was tolled while his Rule 37 petition was pending in state c ourt. If we conclude that Nelson's Rule 37 petition was not "properly filed," then we must addr ess whether Nelson is entitled to equitable tolling of the statute of limitations of § 2244(d)(1).

A. Statutory Tolling Nelson argues that he is entitled to statutory tolling of the one-year statute of limitations because his state court petitio n for postconviction relief was "properly filed" under Artuz v. Bennett , 531 U.S. 4 (2000). According to Nelson, his petition filed under Rule 37 was "p roperly filed" because the rule announced in Boyle —that the petitioner must personally verify a Rule 37 motion and that a lawyer's verification is insufficient—was not firmly establishe d, regularly followed, and consistently applied to bar federal habeas review. Nelson contends th at if a rule does not meet these requirements, it should not bar federal habeas review in the statute-of-limitations
context.
In response, the State contends thatNelson's petition for postconviction relief pursuant to Rule 37 was not "properly file d" for purposes of statutory tolling because the personal-verification requirement app lied by the Arkansas Supreme Court is a "condition to filing" and, pursuant to Walker , this court does not look beyond the state court's application of the rule to dete rmine whether Nelson's petition was "properly filed." Additionally, the State argues thatthe Arkansas Supreme Court's willingness to reach the merits of other unverifiedpetitions does not make Nelson's petition "properly filed" for statutory tolling purposes.

This court has "jurisdiction to review a district court's ruling on 'preliminary procedural issues, such as [a] limitations question' [and] review[s] the district court's interpretation of the one-year AEDPA limitation provision de novo." Williams v. Bruton , 299 F.3d 981, 982 (8th Cir. 2002) (quoting Nichols [ v. Bowersox ], 172 F.3d [1068,] 1070 n.2 [(8th Cir. 1999) (en banc)]). The AEDPA establishes a one-year-8- statute of limitations for filing federal habeas corpus petitions which runs from "the date on which the judgmen t became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The statute of limitations is tolled, however, while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id . § 2244(d)(2).

Walker , 436 F.3d at 1029–30.

Here, Nelson's conviction became final on September 17, 2003—90 days after the Arkansas Supreme Court denied his petition for review. See Smith v. Bowersox , 159 F.3d 345, 347–48 (8th Cir. 1998) (stating that if petitioner does not seek certiorari from United States Supreme Court, the conviction becomes fi nal upon expiration of time for petitioning for certiorari). Nelson filed his federal habeas petition almost three years later, on August 21, 2006. But, Nelson's Rule 37 proceeding was pending from August 15, 2003, until November 17, 2005. If that time period is excluded from the limitations period, only 277 days accrued to ward the limitations period when Nelson filed his federal petition. See 28 U.S.C. § 2244(d)(2) (providing that "[t]he time during which a properly filed appli cation for State post-convicti on 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").

Unfortunately, Nelson's argument for statutory tolling is foreclosed by Walker

. In Walker , the petitioner's Rule 37 motion was di smissed because hedid not notarize his verification. The petitioner cited cases in which the state courts had denied unverified motions on the merits, arguing that the verification requirement was not firmly established, regularly followed, and consistently applie d. 436 F.3d at 1029. We disagreed, noting that courts might deny a motion on the merits notwithstanding its untimeliness. Id . at 1031 (citing Carey v. Saffold , 536 U.S. 214, 225–26 (2002)). Further, we explained that the Arkansas Supreme Court's determination that the-9- motion was invalid was the "'end of the matter.'" Id . at 1032 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 414 (2005)). Thus, under Walker , if a state court finds that a motion fails to comply with filing requirements, that motion is not "properly filed," regardless of whethe r those filing requirements ar e firmly established and regularly followed. See Brian R. Means, Federal Habeas Manual § 9A:48 (2008) ("Analysis of the independence or adequ acy of the state's procedural bar is not relevant to whether the state petition was properly filed. In other words, if the petitioner failed to meet a 'condition to filing,' whether that 'condition to filing' is adequate and independe nt under procedural default juri sprudence is not relevant.") (citing, inter alia , Walker , 436 F.3d at 1030–32).

Here, the Arkansas Supreme Court speci fically held that Nelson's Rule 37 petition was not properly verified because Nelson did not execute the verification. Nelson II, 213 S.W.3d at 646. "Because the Arkansas Supreme Court affirmed and found [Nelson's] petition invalid, 'that is the end of the matter.'" Walker , 436 F.3d at 1032 (quoting Pace , 544 U.S. at 414).

B. Equitable Tolling Because Nelson is not entitled to statutory tolling, we must address his argument that he is entitled to equitable tolling because his state court petition was prepared and filed in compliance with gene rally accepted "rules" that existed at the time. According to Nelson, his state c ourt petition was filed in 2003, and it was not until 2005 that the Arkansas Supreme Court decided Boyle and held that Rule 37's verification requirement means that the in mate himself must personally sign the Rule 37 petition, even if he is represente d by counsel. Nelson asserts that, since Boyle , the Arkansas Supreme Court ha s unconstitutionally applied Boyle retroactively to Rule 37 petitions; prior to Boyle , there was no indication thatthe inmate's own personal signature was a jurisdictional requirement . Nelson maintains that decades prior to Boyle , the routinely accepted practice was that the inmate's signatu re was not required.-10- The Supreme Court of the United States r ecently held that "§ 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida , 130 S. Ct. 2549, 2560 (2010). "[A] 'petitioner' is 'en titled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordin ary circumstance stood in his way' and prevented timely filing." Id . at 2562 (quoting Pace , 544 U.S. at 418).

We need not decide whether Nelson properly raised his equitable tolling argument before the district c ourt because, even if he did, he failed to pursue his rights diligently. The Arkansas Supreme Court denied his petition for rehearing on November 17, 2005. Nelson III, 2005 WL 3074381. But Nelson di d not file his federal habeas petition until August 21, 2006—277 days, or nine months—after the Arkansas Supreme Court denied rehearing. In Pace , the Supreme Court found that a petitioner was not diligent when he waited five months after the judgment of conviction became final to file his petition. 544 U.S. at 419. Similarly, in Earl v. Fabian , the petitioner alleged "that he did not receive notice that his judgment of conviction had become final until . . . approximately seven months after the decision was rendered," but this court noted that the petitioner "still had . . . a span of approximately eight months . . . to file his habeas petition." 556 F. 3d 717, 724 (8th Cir. 2009). This court concluded that "under such circumstances [the petitioner] would not be entitled to equitable tolling." Id . Further, Nelson has made no showing that some extraordinary circumstances stood in his way to prevent a timely filing.

We hold that, like the petitioners in Pace and Earl , Nelson failed to pursue his rights diligently by not filing his habeas petition until nine months after the Arkansas Supreme Court denied rehearing and therefor e is not entitled to equitable tolling of the statute of limitations.

III. Conclusion Accordingly, we affirm the district court's judgment.

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