NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0230n.06 No. 10-1454 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

TYKEE ROSS, Petitioner-Appellant,

v. KENNET H T. MCKEE, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED ST AT E S DI STRI CT COURT FO R THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : BO GGS and STRANCH, Circuit J udg es; and CARR, District J udg e *

BO GGS, Circuit J udg e. Ty kee Ross appea ls a district court’s decision to dismi ss his petition f or writ of habe as cor

pus as time-bar

red by the Antiterror ism a nd Effe ctive Dea th Pena lty Act of 1996 (“A EDPA”). Ross was convicted of first-deg ree felony murder and s entenc ed t o life imprisonment. After an unsucce ssful direc t a ppeal, he filed f

or state post-c onviction r elief, which

was denied by Michig an’s trial and ap p ea l s co u rts. Under Michig an law, Ross had fifty -six day s afte r the Michig an C ourt of Appeals reje cted his claim to file an a pplication for lea

ve to appe al in the Michig an Supreme Court. Ross, throug h counsel, at t em p t ed t o comply by sending such an application to the Michig an Supreme Court cler k ’s d es igna ted mailing addre ss via United States Postal Service express mail. The proper ly addre ssed application arr ived at the proper addre ss at 9:05

Hon. J ames G. Carr, Senior United States District J udg e for the Norther n District of Ohio, * sitti ng by desig nation.No. 10-1454

Ross v. Mc

Kee, W arden

a.m. on the last day of the filin g p er i o d , as s hown by a Postal Service rec eipt. The Michig an Supreme Court, howe ver, did not docke t the application unti l the nex t day —one day afte r t he end of the filing period—a

nd reje cted the application as time-barr ed. Nea rly one y ear

later, Ross filed his fede ral habea s petition. The district court dismiss ed the petition a s time-barr ed, even though it would have been timely , had the Michig an Supreme Court acc epted Ross’s application for leave to
appea l, thus tol ling the A EDPA statute of limitations. Evans v. Chavis , 546 U.S. 189, 197 (2006) (holding that proper ly filed application for state-c ourt discretionar y revie w tolls AEDPA limit ations period). The district court rea soned that AEDPA’s limit ations clock started when the M i ch i gan Court of Appea ls de nied Ross relief , since the Michig an Supreme Court de nied his a pplication for leave to appea l as improperly filed. I t also held that Ross was not entitled to equitable tolling, based

on the state-c ourt cler

k’s delay in formally filing h i s ap p l ication. For the rea sons that follow, we aff irm in part, reve rse in part, and rema nd for the district court to consider the merits of Ross’s petition.
I

Ross was convicted of first-deg ree felony murder in Dec ember 2001 and sentenc ed
to life imprisonment in J anuar y 2002. His direc t appea l failed in the Michig an appea ls and supreme courts, an d ca m e t o a conclusion when the time for filing a petition for writ of cer tiorari with the Supreme Court passed on Dec ember 27, 2004. On J anuar y 25, 2005, Ross filed a motion for relief from judg ment in state court. The court de nied his motion on J uly 29, 2005, and denied a mot ion for rec onsideration on Dec ember 1, 2005. On J uly 28, 2006, Ross fi l ed a delay ed application for

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Kee, W arden leave to a ppeal in the Michig an Court of Appea ls. That court denied Ross’s a pplication on Marc h 30, 2007, and denie d his moti on for r econside ration on May 9, 2007. Ross, throug h counsel, then attempted to file an application for leave to appea l in the
M ichig an Supreme Court. Under M.C.R. 7.302(C)(2) , he had to file such an applicatio n n o l at er than fifty -six day s afte r denial of his motion for rec onsideration, or by J uly 4, 2007. Since J uly 4 is

a national holiday , howeve r, Ross was require d to file his application by the end of the day on J uly 5, 2007. The Michig an Supreme Court Clerk maintains a post office box at the state seconda ry complex, wher e litigants may send filings. Ross’ s application arr ived at this post office box via
express mail at 9:05 a.m . o n J u l y 5, 2007. Although the trac king information Ross’s counsel provided does not contain an addre ss, the State does not dispute that the packa g e was prop erly addre ssed and arr ived at the post office box at the time the rec eipt in d icates. Neve rtheless, the cler k’s office failed to file the application until J uly 6, when it denied the application as time-barr ed.

Nea rly one y ear later, on J une 1, 2008, Ross filed a petition for writ of habea s corpus i n the Dis trict Court for the Easter n District of Mi chig an. The S tate filed a mot ion to dismiss o n 1 statute-of- limit ations g rounds. See 28 U.S.C. § 2244(d)( 1) (cr eating one-y ear statute of limit ations for fede ral habea s from end of state post-conviction revie w); Jimene z v. Quarterman , 555 U.S. 113, 119 (2009) (“[D]irect revie w cannot conclude for purposes of § 2244(d)( 1)(A) until the availability of direc t a ppeal to the state courts and to this C ourt has been exhausted.”) (interna l quotations a nd

As the district court noted, Ross g ave his petition to prison officia ls on J une 1, 2008, even 1 though the district cour t did not file it until J une 11, 2008. Under the prisoner mailbox rule, the petition is considere d filed when place d in the prison mail sy stem. Houston v. Lack , 487 U.S. 266, 276 (1988). - 3 -No. 10-1454

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Kee, W arden citations excluded). I nitially , t h e d i s trict court denied the State’s motion. I t held that AEDPA’s
statute of limit ations ran for twenty -eig ht day s betwee n the date Ross’s conviction beca me final and the date he filed hi s state collateral-r eview pleading , and for another 331 day s after the pre scribed period for seeking leave to appea l in the Michig an Supreme Court expired on J uly 5, 2007 until Ross filed his f eder al habea s petition on J une 1, 2008. Thus, the AEDPA limit ations period had run for only 359 day s, and the pe tition was tim ely

.

The district c ourt subsequently rec onsidered its dec ision, and corr ectly held that an improperly filed p et ition for discretionar y revie w in state court did not toll the AEDPA statute of limit ations. Evans , 546 U.S

. at 1 9 7

. R o ss’s petition for leave to appea l was late—and there fore i m p ro p er

—under Michig an law. As such, the court held that the limit ations period beg an t o ru n when the Michig an Court of Appea ls d en i ed R oss’s motion for rec onsideration on May 9, 2007. Ross’s J une 2008 habea s petition wa s, there fore , untimely : twe nty -eig ht da y s elapsed be tween the d ay R o ss’s conviction beca me final and the day he filed his state collater al-re view pleading , and another 388 day s elapse d betwee n the day the Michig an Court of Appea ls denied his motion for

rec onsideration, and the day he filed his petition for writ of habea s corpus. Ross a ppeals from this decision. He argues first that he timely filed his motion for leave to appea l in the Michig an Supreme Court; and second that equitable tolling is a ppropriate in this case bec ause the motion for leave to
appea l arrive d timely

at the Michig an Supreme Court’s mailing a ddress.
I I AEDPA provides:

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Kee, W arden A 1-y ear period of limitation shall apply to an applica tion for a writ of habea s corpus by a person in c ustody pursuant to the judgme nt of a State court. T h e l i m i t at ion period shall run from

. . . the date on which the judgme nt be came final by the conclusion of direc t r eview

. . . . 2 8 U.S .C. § 2244(d)( 1)(A)

. Direc t revie w, within the meaning of § 2244(d)( 1)(A) , does n o t conclude “until the availability of di rec t appea l to the s tate courts and t o [t he S upreme ] Court has been e x hausted.” Jimene z , 555 U.S. at 119 (interna l quotations and citations omitt ed). A E D PA , h oweve r, tolls this limit ations period for “[t] he time during wh ic h a p r o p e r ly filed application for State post-conviction or other collater al revie w with respe ct to the pertinent judgme nt or claim is pending .” 28 U.S.C. § 2244(d)( 2). A petition for discretionar y revie w in state
court counts as “state post-conviction or other collater al revie w,” i b i d

. , and thus tolls AEDPA’s statute of limitations, as long as it is timely filed. Carey v. Saffold , 536 U.S. 214, 219–20 (2002); Evans , 546 U.S. at 197 (“[O]nly a timely appea l tolls AEDPA’s 1-y ear imitations period for the time betwee n the lower court’s adver se decision and the filing of a notice of appea l in the highe r court.” ).
I f such a petition is untimely , howeve r, the date of the last final lower- court decision is the date the limit ations period beg ins to run, since a petition for writ of cer tiorari following state post-conviction revie w does not toll AEDPA’s statute of limitations. Lawrence v. Florida , 549 U.S. 327, 331–36 (2007). A

M ic h ig a n Co u r t Ru le 7

. 3 0 2 (C)(2) (b) require s that a n “ a p p li c a ti o n [f o r le a v e to a p p e a l]

. . . be filed

. . . within

. . . 56 day s in criminal case s . . . afte r the filing of the opinion appea led from.” M.C.R. 7.302(C)(2) (b). “ L ate a pplications [are] not . . . acce pted.” Id. at 7.302(C)(3)

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Kee, W arden The Michig an Court of Appea ls denied Ross’s application for leave to appea l on Marc h 30, 2007, and denied h i s motion for rec onsideration on May 9, 2007. As such, Ross was require d to file his application for leave to appea l with the Michig an Supreme Court by J uly 5, 2007. Ross’s application rea ched the Michig an Supreme Court’s mailing addre ss at the sta t e seconda ry complex at 9:05 a.m. on J uly 5. The cler k, howeve r, did not acknow ledg e rec eipt of the application until J uly 6, fifty -seve n day s afte r the Court of Appea ls’s decision, and one day afte r the end of the
presc ribed filing period. The cler k denied the application as untimely , citing Rule 7.302(C)(2) (b). When Ross questioned this decision, the cler k in s i sted: “late applications will not be acc epted.” Pet’r’s B r. at 17; M.C.R. 7.302(C)(3).

Ross claims that, b ec au s e h i s application for leave to appea l arr ived timely at the Michig an Supreme Court’s mailing addre ss, it was timely filed under Michig an law. This court does
not have the power to resolve such a claim. To do so would be to dictate Michig an proce dural law to the Michig an Supreme Court. “This c ourt . . . does not func tion as an additional state appellate
court revie wing state-c ourt decisions on state law or proce dure.” Vroman v. Brigano , 346 F.3d 598, 604 (6th Cir. 2003) (interna l citations omitted). Rather, as a fede ral court, we ar e “o b l i gat ed to

acc ept as va lid a state cour t’s interpre tation of state law and rules of practice of that state.” Ibid. We there fore defe r to the Michig an Supreme Court’s interpre tation of M.C.R. 7.302(C)(3) , and hold that Ross’s application for le ave to a ppeal wa s not tim ely

filed. Be cause an untimely

application for

leave to appea l does not toll AEDPA’s statute of limit ations, Evans , 546 U.S. at 197, the limit ations clock—whic h had alre ady run for twenty -eig ht day s betwee n Ross’s direc t and Michig an-c ollatera l proce eding s—beg an to ru n ag ain on May 9, - 6 -No. 10-1454

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Kee, W arden 2007, when t h e M i ch i g an Court of Appea ls denied Ross’s motion for rec onsideration. Three

hundred and eig hty -eig ht d ay s p as sed betwee n that date and J une 1, 2008, when Ross filed his petition for writ of habea s corpus. I n total, then, four- hundred and six teen statute-of- limit ations day s elapse d from the day Ross’s judgmen t b eca me final to the day he filed his habea s petition. This time-g ap exceeds AEDPA’s one-year habea s statute of limit ations. See 28 U.S.C. § 2244(d)( 1)(A)

. Ross’s petition i s, theref

ore, time-ba

rre d in terms of statutory

tolling.
B Ro s s n ex t argues that the district court should addre ss the merits of his petition b ec ause he is entitled to equitable tolling from May 9, 2007 to J uly 5, 2007. He rea son s t h at h i s application for leave to appea l arr ived at the mailing a d d r e s s th e Michig an Supreme Court desig nated for filings on the morning of J uly 5, the last day of the period cre ated by state law for a timely petition for leave to appea l. Had the cler k dockete d the application that day , it would have been
proper ly filed, the AEDPA statute of limit ations would have been tolled, and Ross’s fede ral habea scorpus pe tition would have been timely when he filed it on J une 1, 2008. The Supreme Court rec ently confirme d that “§ 2244(d) is subject to equitable tolling in appropria te case s.” Holland v

. Florida , 130 S. Ct. 2549, 2560 (2010). Equitable tolling allows
courts to enter

t ain otherwise time-barr ed proce eding s when “a litigant’s failure to meet a leg ally mandated deadline unavoidably arose from circ umstances beyond that litigant’s control.” GrahamHumphrey

s v. Mem phis Brook

s Museum of A rt , 209 F.3d 552, 560–61 (6th Cir. 2000). “Althoug h equitable tolling is used sparing ly by fede ral courts,” this court does g rant such relief in appropr iate circ umstances. Johnson v. H udson , 421 F. App’ x 568, 571 (6th Cir. 2011).

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Kee, W arden “[ A] p etitioner i s entitled to equitable toll ing only if he shows (1) that he has b ee n pursuing his rig hts dil i gen t l y , and (2) that some extraordinary circ umstance stood in his way and
preve nted t imely filing. ” Ho l l and , 130 S. Ct. at 2562 (interna l quotations omitted); see also Hall

v. W arden, Lebanon Corr. Inst. , 662 F.3d 745, 749–50 (6th Cir. 2011) (holding that Holland test did
not subsume, but repla ced, prior equitable- tolling test from Andrews v. Orr , 851 F.2d 146, 151 (6th Cir. 1988)). I n deter

mining whether a petitioner meets these two require ments, we “exerc ise

. . . [our] equity power s . . . on a case -by -c as e b asis,” g uided and g overne d by rules and prec edents. Holland , 130 S. Ct. at 2563 (interna l citations omitted). “Where the fac ts of the case are undisputed

or the district c ourt rules a s a matter of law that equitable tolling is unavailable , this c ourt revie ws the dec ision de novo .” Vroman , 346 F.3d at 601.

Ross urg es that equitable tolling should apply beca use his application arr ived at the Michig an Supreme Court’s mailing addre ss on the morning of J uly 5, 2007, the last day of the
appea ls period. He sug g ests that he is entitled to equitable tolling beca use he diligently pursued his ri gh ts by timely filing his documents, and the Michig an Supreme Court’s delay in acc epting h i s application wa s an extraordinar y circ umstance. We a g ree . This court considers doc uments filed when the United States Postal Service “[makes] delivery at the place direc ted by the addre ssee.” Central Paper Co. v. Comm’r of Internal Rev enue , 199 F.2d 902, 904 (6th Cir. 19 5 2 ), s u p er s eded by statute , 26 U.S.C. § 7502, as recognized in Thomas v. United States , 166 F.3d 825, 829–30 (6th Cir. 1999). I n Central Paper , a tax case , we held t h at delivery to a ledg e beside a lock-box the tax court desig nated for filings “constituted delivery to The Tax Court.” Ibid. We explained that “[t] here is no twilight zone betwee n delivery - 8 -No. 10-1454

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Kee, W arden by the Post Offic e to the addre ssee, and rec eipt, either actua l or constructive, by the addre ssee,” ibid. , and conc luded:

the proc essing and handling of the petition by Tax Court employ ees [after the filing arr ived] was no conce rn of the taxpay er. Fa ilure or unrea sonable delay on the part of Tax Court employ ees to tr ansfe r it from the lock box to the Clerk’s Offic e, or to s t am p it as filed afte r rec eipt in the Clerk’s Of

fice , is not charg eable to the taxpay er. Id. at 905. Our sister circ uits, and district courts nationwide, have adopted simil ar logic , holding that delay betwee n a document’s arr iving at a post office box or drop-box, desig n at ed fo r co urt documents, and the cler

k’s docketing the document is not attributable to the filing party

. See, e.g. , Steve ns v. Heard , 674 F.2d 320, 322 (5th Cir. 1982) (“[W] hen a party has no control over the delay betwee n the cler

k’s rec eipt of a notice of appea l and its filing, the fac t that a notice of appea l, timely

rece ived , was filed out of time [does] not defe at the appea l.”) (empha sis added) ; Aldabe v. Aldabe , 616 F.2d 1089, 1091 (9th Cir. 1980) (“B ecau se an appellant has no control over delay s betwee n

rec eipt and filing, a notice of appea l is timely if rec eived by the district c ourt within the applicable period specifie d in Rule 4.”); Turner v. City of Newport , 887 F. Supp. 149, 150–51 (E.D. Ky

. 1995) (citing Central Paper , 199 F.2d at 904) (holding that placing a complaint in cler k’s office ’s postoffice box at 11: 30 p.m. of the day the statute of limitations ex pired c ounted as timely filing) ; Hetman v. Fruit Growers Express Co. , 200 F. Supp. 234, 237 (D.N.J. 1961) (“I find that the orig inal complaint in this action was in the Post Offic e box assig ned to the Clerk of this Court in the United States Post Off

ice in the City of Newa

rk on Saturday , April 22, 1961, and that there fore the action

was commence d within the time r equire d.”); Johnson v. Esso Standard Oil Co. , 181 F. Supp. 431, 433–34 (D. Pa. 1960) (“I think that the delivery of this complaint to the Clerk in his post office box - 9 -No. 10-1454

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o n Monday , November 24, 1958, constituted a filing of the complaint and commence ment o f t h e plaintiffs’ action on that day , which was prior to the expiration of the two-y ear period presc ribed by the statute of limit ations.”); Johansson v. Towson , 177 F. Supp. 729, 731 (M.D. Ga. 1959) (holding that “the rec eipt by the Deputy Clerk of

. . . complaints in his Post Offic e Box in the ear ly morning hours of Saturday , Aug ust 23, constituted a suffi ci ent fil ing of these suit s prior to midnight of the fol lowing day , notwithstanding the fac t that the cler k did not open the box until 8: 3 0 a. m . o n Monday , Aug ust 25.”).

Under this rule, we would consider Ross’s application for leave to appea l timely

. The packa g e arr ived at 9:05 a.m. on J uly 5, 2007—the morning of the last day of the appea ls period—a t the addre ss the Michig an Supreme Court desig nated for such paper s. Fr om that point on, Ross had

n o co n t ro l o v er when the packa g e arr ived in the cler k’s office , or when the cler k opened it and stamped its contents as “filed.” To char g e Ross with the cler k’s delay in filing his application would be to hold him acc ountable for circ umstances bey ond his control. Fe dera l courts sitti ng in equity do
not condone such a result. See Deloney v. E s t el l e , 6 6 1 F. 2d 1061, 1062 (5th Cir. 1981) (“A rigid application of [Feder al Rule of Appellate Procedur e 4(a) ] would mandate that any appea l would be dismiss ed. Howe ver, a

rig id application under

the fa cts of this case would be unjust.”). But the issue here is not whether we would have resolved Ros s ’s ca s e differ ently ,

wer e we the Michig an Supreme Court. Rather, we must decide whether Ross is entitled to equitable tolling in fede ral court, based on the Michig an Supreme Court cler k’s ref usal to trea t his application for lea ve to appe al as timely

.

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Kee, W arden This court has not addre ssed the prec ise question prese nted—whethe r a prisoner,
repr esente d by counsel in state post-conviction proce eding s, may qualify for equitable tolling based

on a state cler

k’s fili n g delay

. We have, howeve r, dealt with an analog ous situation. I n W hite v. Curtis , 42 F. App’x 698 (6th Cir. 2002), a Michig an prisoner delivere d his a pplication for leave to
appea l in the Michig an Supreme Court to prison officia ls on Fe bruar y 6, 1996, two day s befor e his fifty -six -day appea l s p er i o d en ded on Fe bruar y 8. Id. at 700. The cler k did not rec eive the application until Fe bruar

y 9. Ibid. Be cause Michig an does not rec og nize the prisoner mailbox rule, the Michig an Supreme Court dismiss ed the application as time-barr ed. W hite , 42 F. App’x at 700. Had t he Mi chig an court acc epted the application in compliance with the federa l prisoner mailbox rule, the prisoner’ s fede ral pe tition for writ of habe as cor pus would have been tim ely

. Id. at 699. We held that equitable tolling should apply beca use of “t h e ap p ar ent justice in g ranting a state appellant th e eq u i table benef it of the fede rally -ac cepte d ‘mailbox rule’ for purposes of tolling a fede ral statute of limit ations.” Id. at 701; see also Burge r v. Scott , 317 F.3d 1133 (10th Cir. 2003) (holding that AEDP A s t atute of limit ations was tolled during four- month delay betwee n date petitioner delivered st ate ha beas pe tition t o prison officia ls and date petition was stamped as filed in state court, e ven thoug h Oklahoma did not apply prisoner ma ilbox rule). Simi larly , we believe it is app ro priate to apply equitable tolling and g ive Ross the benef it of our “fe dera lly -ac cepte d

. . . [rule] for purposes of tolling a fede ral statute of limit ations.” W hite , 42 F. App’x at 700. We there fore hold that, beca use Ross’s application arr ived timely at the addre ss the Michig an Supreme Court desig nated for court documents, the fede ral courts should trea t it as timely filed for the purposes of § 2244(d)’ s limit ations period. The statute of limit ations should - 11 -No. 10-1454

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Kee, W arden be tolled from May 9, 2007 to J uly 5, 2007, and the district co u rt s h o uld proce ed to the merits of Ross’s petition for writ of habe as cor pus. I n so holding, we by no means dictate Michig an law to the Michig an courts. Rather,

we apply our equitable power s to preve nt inequity

. We rec og nize, of course , that “[i] n the absenc e of a constitutional viol at i o n , t h e p etitioner bear s the risk in fede ral habea s for all attorney err ors made in the course of the repr esenta tion,” Coleman v. Thompson , 501 U.S. 722, 754 (1991), and that Ross waited for near ly a full y ear afte r the Michig an Supreme Court denied his petition for leave to
appea l, befor e filing his f eder al habea s petition. But neither of these points chang es the outcome. 2 The clerk’s delay , not attorney err or, i s the reason R oss’s petition was late, and but for the cler k’s late acc eptanc e of Ross’s filing, Ross’s fede ral habea s petition would have been timely , even though he did not file it until J une 2008.

Nor does the Supreme Court’s decision in Artuz v. Benne tt , 531 U.S. 4 (2 0 0 0 ), compel a contra

ry conclusion. I n Artuz , the Court explained: “An application is ‘filed,’ as that term is c ommonly understood, when it is delivere d to, and acc epted by , the appropr iate court office r for place ment into the officia l rec ord.” Id. at 8. The court below relied on this lang uag e, emphasizing that the cler

k did not acc ept R o s s ’s application until J uly 6, 2007, one day afte r the end of the limit ations period.

Artuz , howeve r, did not addre ss acc eptanc e direc tly

. Rather, it involved “ th e q u e s ti on whether an application for state postconviction relief containing claims that are proce durally barr ed

Although Ross attempted to explain this delay below, he prese nted no such explanation in 2 this court. - 12 -No. 10-1454

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Kee, W arden is ‘prope rly filed’ within the meaning of [§2244(d)(1)(A )].” Artuz , 531 U.S. at 5. The case did use the word “ac cepte d,” and noted that “time limit s upon . . . delivery , [and] the court an d office in which [an application] must be lodge d” wer e rele vant considerations in deter mining whether filing
was proper. Ar t u z , 531 U.S. at 8. I t was sil ent on the i ssue t his case prese nts: the m eaning of t he word “ acc eptanc e.”

But even to the extent that Artuz is rele vant here , it does not compel a differ ent result. Ross’s application for leave to appea l arr ived at the Michig an Supreme Court’s desig nated mailing addre ss. There , a state employ ee acc epted the package, b y s i gn i n g the cer tified mail rec eipt. Be cause the Michig an Supreme Court held out a location other than its cler k’s office as a valid place for filings, delivery to, and acc eptanc e at, that location constituted filing within the meaning of Artuz

. I V The Michig an Supreme Court’s delay in filing Ross’s application for leave to appea l, afte r Ross timely delivere d his pleading to the court’s desig nated mailing addre ss, should not preve nt him from prese nting his petition for writ of habea s corpus to the fede ral district court. Acc ording ly , we hold that equitable tolling of the AEDPA limit ations period from May 9, 2007 to J uly 5, 2007 is appropr iate. We AFF I RM the opinion of the district court, insofar as i t deter mines that Ross’s petition was untimely on statutory g rounds. We REVERSE its decision t o deny equitable tolling, howeve r, and REMAND for pr ocee dings c onsistent with thi s opinion.

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