1

The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri, sitting by designation.

2

The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the

Eastern District of Arkansas, to whom the 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 convicted of discharging a firearm from

a vehicle and sentenced to 30 years' imprisonment, appeals the district court's2

 order

dismissing his petition for habeas corpus relief under 28 U.S.C. § 2254 as untimely.
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We granted Nelson's application for certificate of appealability to determine the

following questions:

1. Whether Nelson's application for 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 Rule 37's verification requirement and (2)

Nelson is not entitled to equitable tolling. Accordingly, 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. The 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 Nelson's petition for discretionary review. 

On August 15, 2003, Nelson filed a petition for postconviction relief under

Arkansas Rule of Criminal Procedure 37 with the state trial court. The petition was
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signed and verified only by Nelson's postconviction counsel—not by Nelson

personally. The state trial court, after a hearing on the merits, denied Nelson's request

for relief under Rule 37. 

Nelson then appealed to the Arkansas Supreme Court, which declined to reach

the merits of his arguments on appeal 

because appellant's petition was not properly 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 petitioner 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 dismissing 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 permitted to verify the petition 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
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a veritable verification. This court has recognized that postconviction

relief proceedings are civil in nature and 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 attorney representing the petitioner under

Ark. R. Crim. P. 37.1 almost certainly did not represent that petitioner at

trial; the trial attorney's conduct must be throughly [sic] examined and

questioned by counsel for a petitioner under Ark. R. Crim. P. 37.1. The

attorney in a postconviction proceeding 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. Appellant urges that this requirement that the

petitioner personally verify his petition 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 verified by the petitioner." Westbrook

v. State, 286 Ark. 192, 691 S.W.2d 123 (1985) (emphasis added). Boyle

merely confirmed a position already announced 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 appellant's petition for rehearing.
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Id. at *1–2 (emphasis added in part). 

On August 21, 2006, Nelson filed a petition for federal habeas relief pursuant

to 28 U.S.C. § 2254, alleging that he was denied a 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 ineffective. 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 that he 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 argued that Nelson had not asserted in his

habeas petition that he was entitled to equitable tolling. The district court gave Nelson

an opportunity to reply within 30 days to the 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 followed 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 recognizing that rule did not entitle Nelson to

equitable tolling. Nelson failed to reply to the State's supplemental response.
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The district court dismissed Nelson's habeas petition, finding that Nelson's case

was precluded by Walker, where this court held that an "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 from judgment under Federal Rule of Civil

Procedure 60. Nelson argued that the district 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 exceptional circumstances to warrant relief under

Rule 60. Nelson replied that his Rule 60 motion was not a successive petition. 

The district court concluded that Nelson's Rule 60 motion was not a successive

petition but nonetheless denied 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 verification 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
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petition, then the statute of limitations of § 2244(d)(1) was tolled while his Rule 37

petition was pending in state court. If we conclude that Nelson's Rule 37 petition was

not "properly filed," then we must address 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 petition 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 "properly 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 established, regularly followed, and consistently

applied to bar federal habeas review. Nelson contends that 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 that Nelson's petition for postconviction relief

pursuant to Rule 37 was not "properly filed" for purposes of statutory tolling because

the personal-verification requirement applied 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 determine whether Nelson's petition was "properly

filed." Additionally, the State argues that the Arkansas Supreme Court's willingness

to reach the merits of other unverified petitions 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
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statute of limitations for filing federal habeas corpus petitions which runs

from "the date on which the judgment 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 final 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 toward 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 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").

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

In Walker, the petitioner's Rule 37 motion was dismissed because he did 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 applied. 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
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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 whether those filing requirements are firmly established and

regularly followed. See Brian R. Means, Federal Habeas Manual § 9A:48 (2008)

("Analysis of the independence or adequacy 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 independent under procedural default jurisprudence is not relevant.")

(citing, inter alia, Walker, 436 F.3d at 1030–32). 

Here, the Arkansas Supreme Court specifically 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 generally accepted "rules" that existed at the

time. According to Nelson, his state court 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 inmate himself must personally sign the Rule

37 petition, even if he is represented by counsel. Nelson asserts that, since Boyle, the

Arkansas Supreme Court has unconstitutionally applied Boyle retroactively to Rule

37 petitions; prior to Boyle, there was no indication that the 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 signature was not required.
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The Supreme Court of the United States recently held that "§ 2244(d) is subject

to equitable tolling in appropriate cases." Holland v. Florida, 130 S. Ct. 2549, 2560

(2010). "[A] 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary 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 court 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 did 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 therefore is not entitled to equitable tolling of the

statute of limitations. 

III. Conclusion 

Accordingly, we affirm the district court's judgment.

______________________________