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D ock e t 99-1493

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. e du/thir dc ir c uit_2001/81Filed April 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1493

WILLIE STOKES,

Appellant

v.

THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 98-cv-05182) District Judge: Honorable Marvin Katz

Submitted Under Third Circuit LAR 34.1(a) March 13, 2001

Before: MANSMANN, BARRY and COWEN, Circuit Judges.

(Filed April 17, 2001)

Mary Gibbons, Esquire 600 Mule Road, Suite 16 Holiday City Plaza III Toms River, NJ 08758

COUNSEL FOR APPELLANTDonna G. Zucker, Esquire

Michele S. Davidson, Esquire Marilyn F. Murray, Esquire Thomas W. Dolgenos, Esquire Ronald Eisenberg, Esquire Arnold H. Gordon, Esquire Lynne Abraham, Esquire Office of the District Attorney

1421 Arch Street Philadelphia, PA 19102-1582

COUNSEL FOR APPELLEES

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Willie Stokes appeals from an or der of the Distric t Court dismissing his petition for habeas corpus, filed pu rsuant to 28 U.S.C. 2254, as time-barred. We addr ess an issu e of first impression for our court: Whether Stokes' tim e to file a federal habeas corpus petition under 28 U.S.C. S 2244(d)(1) was tolled under 28 U.S.C. S 2244(d)(2 ) for the ninety day period during which Stokes could havefil ed a petition for certiorari in the United States Supr e me Court. We join all of the other Courts of Appeals to have decided this issue, holding that the ninety day period duri ng which a certiorari petition may be filed does not toll th e applicable statute of limitations. Accordingly, we will affirm the order
of the District Court.

I.

On August 21, 1984 Stokes was convicted, following a jury trial in a Pennsylvania state court, of first degree murder and possession of an instrument of crime. He was sentenced to life imprisonment for the murder and t o a concurrent term of years on the weapons count.

Stokes' conviction was affirmed on dir ect appeal i n 1986 and the Pennsylvania Supreme Court denied his petit ion for allocatur in 1987. Shortly thereafter, Stokes filed a petition

2for relief under Pennsylvania's Post Conviction Hea ring Act,

42 Pa. Const. Stat. S 9541 et seq. (r epealed). Rel ief was denied in February 1991, and that decision was affi rmed by the Pennsylvania Superior Court. Stokes did notfile a petition for allocatur in the Pennsylvania Supr eme Court.

On October 30, 1995, Stokes filed a second postconviction request for relief pursuant to the Post Conviction Relief Act, 42 Pa. Cons. Stat S 9541 et seq. (1988) . Relief was denied on January 3, 1996 and the denial was af firmed on December 26, 1996 by the Pennsylvania Superior C ourt. Allocator was sought and was denied by the Pennsylv ania Supreme Court on July 2, 1997.

Stokes filed the petition for writ of habeas corpus underlying this appeal on September 30, 1998. The U nited States Magistrate Judge concluded that Stokes' peti tion was time-barred under the provisions of 28 U.S.C. S 2244(d)(1) and that Stokes had failed to establis h any circumstance warranting application of equitable to lling. The District Court adopted the report and r ecommen dation of the Magistrate Judge, dismissed the petition as timebarred, and denied a certificate of appealability.

Stokes filed a timely appeal. On September 14, 2000 we granted a certificate of appealability as to the li mitations issue posed by Stokes' petition. This issue is one of statutory construction subject to plenary review.

II.

In the Anti-Terrorism and Effective Death Penalty A ct of 1996 ("AEDPA"), Congress amended the federal habeas statute by adding a one year statute of limitations for the filing of habeas corpus petitions. Section 2244(d)( 1) provides in relevant part:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- (A) the date on which the judgment became final by t he conclusion of direct review or the expiratio n of the time for seeking such review.

3* * * *

(2) The time during which a properly filed a pplication for state post-conviction or other collatera l r eview with respect to the pertinent judgment or claim i s pending shall not be counted toward any period of li mitation
under this section.

Although the statute itself did not provide for one , most courts of appeals, including ours, implied a one ye ar grace period for petitioners whose convictions becamefina l before
the effective date of the AEDPA. See Burns v. Morto n, 134 F.3d 109, 111 (3d Cir. 1998). Because Stokes' convi ction became final in 1987, he was entitled to the grace period and, on the basis of that grace period alone, would have been required to file his section 2254 petition on or before April 23, 1997.

This April 23, 1997 date is not controlling her e, however,
because when the AEDPA amendments became ef fective
, Stokes was actively pursuing a state collateral act ion. As a result, his time for filing the federal habeas peti tion at issue here was tolled under 28 U.S.C. 2244(d)(2), so long as the state petition was pending. As the defendants note, "[T]he question here is when the [state collateral proceed ing] ceased to be `pending.' "

According to the defendants, that state pr oceeding ceased to be pending on July 2, 1997, the date on which th e Pennsylvania Supreme Court denied Stokes' petition for allocator. Under this view, Stokes then had one yea r -- until July 1, 1998 -- to file the federal habeas pe tition. Stokes' petition was not filed until September 30, 1998.

Stokes takes a different view, contending that the state proceeding should be deemed to have been pending fo r an additional ninety days after the Supreme Court of Pennsylvania declined to grant discretionary r evie w -- these ninety days being the period during which he could have sought further review by the United States Supr eme Court.

III.

Although we have yet to address the precise questio n

4posed here,1 we do not find ourselves in uncharted legal

territory. Arguments similar to the one raised here by Stokes have been considered by a number of our sist er courts of appeals. These courts have concluded, wit hout exception, that the time during which a state priso ner may file a petition for a writ of certiorari in the Uni ted States Supreme Court from the denial of his state post-con viction petition does not toll the one year statute of limi tations under 28 U.S.C. S 2244(d)(2). See Snow v. Ault, 238 F.3d 1033 (8th Cir. 2001); Gutierrez v. Schomig, 233 F.3 d 490 (7th Cir. 2000), petition for cert. filed, (U.S. Ja n. 19, 2001) (No. 00-1384); Isham v. Randle, 226 F .3d 691, 695 (6th Cir. 2000), cert. denied, ___ S. Ct. ___, 2001 WL 76698 (U.S. Feb. 26, 2001) (No. 00-8222); Coates v. Byr d, 211 F.3d 1225, 1227 (11th Cir. 2000), cert. denied , ___ S. Ct. ___, 2001 WL 138154 (U.S. Feb. 20, 2001) (No. 99-12642); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir . 1999), cer t. denied, 529 U.S. 1099 (2000); Rhine v. Boone, 182 F .3d 115 3, 1155 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000 ). We now join these courts of appeals and conclude that Stokes' petition was properly dismissed as time-barr ed.

We reach this conclusion for several r easons. Firs t, we note that the language used in section 2244(d)(1)(A ) differs from that found in section 2244(d)(2). "[U]nlike S 2244(d)(1)(A), which uses the phrase `became fina l by . . . expiration of the time for seeking [direct] . . . r eview,' a phrase that . . . takes into account certiorari pr oceedings, S 2244(d)(2) contains no such language." Snow v. Au lt, 238

___________________________________________________ ______________

1. In our decision in Swartz v. Meyers, 204 F.3d 41 7 (3d Cir. 2000), we concluded that "pending" as that word is used in se ction 2244(d)(2) includes the time during which a petitioner seeks d iscretionary state court review, whether or not review is sought. Our holding in that case was tied to finality for purposes of habeas r eview : "If [the petitioner]

had attempted to seek federal habeas relief while there was still time to seek allowance of appeal, the petition would be dismisse d for failure to exhaust state remedies." Id. at 422. In Schwartz, w e specifically reserved for another day the issue which we confront in this appeal: "We need not delve into the issue whether `pending' includes the time to file a petition for writ of certiorari in the United States Supr em e Court because that question is not presented by this appeal. Other cou rts have addressed
this issue and find that the time does not toll." I d. at n.5.

5F.3d at ___ (citation omitted). W e agree with the Court of

Appeals for the Sixth Circuit:

[I]t seems clear that Congress intended to e xclude potential Supreme Court review as a basis fo r tolling the one year limitations period. See Hohn v. United States, 524 U.S. 236, 249-50 (1998) (observi ng that by including particular language in one section of an act but omitting it in another section of the sa me act, it is presumed that Congress intended to exclude t he language).

Isham v. Randle, 226 F.3d at 695. This reading of s ection 2244(d)(2) is consistent with the requir ement that a petitioner exhaust state remedies prior to institut ing a federal habeas petition. "Such exhaustion does not include seeking certiorari from the state court's denial of postconviction relief." Snow v. Ault, 238 F.3d at ___.

The result is also consistent with our pr ecedent construing section 2244(d)(2). In Jones v. Morton, 195 F.3d 153 (3d Cir. 1999), we considered whether a pending properly filed habeas petition tolls the statute of limitations under section 2244(d)(2) for purposes of filing a s ubsequent federal habeas petition.2 W e concluded that it doe s not:

Congress clearly intended that the word"Stat e" would be read to modify both "post conviction" and "other collateral review" so that tolling would be afforded under S 2244(d)(2) for various forms of stat e review only. We find nothing in S 2244(d)(2)'s lang uage or legislative history, and nothing in the poli cy concerns behind AEDPA's enactment to suggest a contra ry result.

Id. at 159. Our conclusion in Jones supports the
conclusion here that the statute of limitations was not

___________________________________________________ ______________

2. There is a split in the circuits with regard to the issue decided in Jones. This split is highlighted in Walker v. Artuz , 208 F.3d 357 (2d Cir. 2000), cert. granted in part by Duncan v. W alker, 121 S. Ct. 480 (2000). The Supreme Court has agreed to deter mine whether a prior federal habeas corpus petition is an "application for State -post-conviction or other collateral review" within the meaning of 28 U .S.C. S 2244(d)(2).

6tolled during the period when Stokes could have sou ght

review in the Supreme Court.

Finally, we note the reasoning undertaken by the Co urt of Appeals for the Seventh Circuit in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir. 2000). Ther e, the Court of Appeals held, as we do here, that the ninety days during wh ich a petitioner could have filed a petition for certiora ri in the United States Supreme Court did not toll the limita tions period set forth in section 2244(d)(2). The Seventh Circuit's holding was narrower than the holdings of other cou rts to
have considered this issue. The court in Gutierrez wrote:

Section 2244(d)(2) . . . provides that the l imitations period is tolled during the time that "a pr operly filed application for State post-conviction or oth er collateral review with respect to the pertinent judgmen t or claim is pending."

* * * *

Because Gutierrez never filed a petition for certiorari review in the Supreme Court, his potential c ertiorari petition was never "properly filed." . . . [ I]nstead of excluding time a pleading could have been fi led, Congress explicitly required a "pr operly fi led" pleading
to toll the statute of limitations. Gutierre z did not properly file a petition for certiorari and, thus, the one- year limitations period was not tolled durin g the time [in] which he could have filed such a petiti on. Likewise, a petition for certiorari that is not actual ly filed cannot reasonably be considered "pending."

233 F.3d at 491-92.

Stokes, like Gutierrez, never filed a petition for certiorari. Consequently, the reasoning underlying the decision in Gutierrez applies here as well, pr oviding an alter nate ground for our conclusion that Stokes' petition for a writ of habeas corpus was properly dismissed as untimely.

IV.

For the foregoing reasons, we hold that the ninety day period during which a state prisoner may file a pet ition for

7a writ of certiorari in the United States Supr eme Court from

the denial of his state post-conviction petition do es not toll the one year limitations period set forth at 28 U.S .C. S 2244(d)(2). Accordingly, we will affirm the order of the
District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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