FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUSTY ROGERS,

Petitioner-Appellant,

v.

MIKE FERRITER; MARTIN FRINK,

Respondents-Appellees.

No. 13-35790

D.C. No.

2:12-cv-00013-DLC

OPINION

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted

May 7, 2015—Portland, Oregon

Filed August 5, 2015

Before: William A. Fletcher and Andrew D. Hurwitz,

Circuit Judges, and Michael M. Baylson,* Senior District

Judge.

Opinion by Judge W. Fletcher

* The Honorable Michael M. Baylson, Senior District Judge for the U.S.

District Court for the Eastern District of Pennsylvania, sitting by

designation.
2 ROGERS V. FERRITER

SUMMARY**

Habeas Corpus

The panel reversed the district court’s judgment

dismissing a Montana state prisoner’s habeas corpus petition

as untimely and remanded for further proceedings.

The panel held that the prisoner’s application for review

of his sentence was “pending” for purposes of 28 U.S.C.

§ 2244(d)(2) during the time that the Sentence Review

Division (SRD) of the Montana Supreme Court held it in

abeyance so he could seek other state collateral review, and

AEDPA’s statute of limitations was therefore tolled after the

SRD held the prisoner’s application in abeyance but before he

filed for other state collateral relief.

COUNSEL

David F. Ness (argued), Assistant Federal Defender, Anthony

R. Gallagher, Federal Defender, Federal Defenders of

Montana, Great Falls, Montana, for Petitioner-Appellant.

Jonathan M. Krauss (argued), Assistant Attorney General,

Timothy C. Fox, Attorney General, Office of the Montana

Attorney General, Helena, Montana, for RespondentsAppellees.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ROGERS V. FERRITER 3

OPINION

W. FLETCHER, Circuit Judge:

Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), state prisoners must file federal petitions for

habeas corpus within one year of the date on which the

challenged conviction becomes final. 28 U.S.C.

§ 2244(d)(1). That limitations period is tolled while a

petitioner’s “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). 

The dispositive issue in this case is whether a Montana

prisoner’s application for review of his sentence was

“pending” during the time that the Sentence Review Division

of the Montana Supreme Court held it in abeyance so he

could seek other state collateral review. We hold that it was.

I. Background

A. Collateral Review in Montana

This case arises out of Montana’s dual-track system for

collateral review of criminal sentences. On one track,

Montana permits prisoners to seek post-conviction collateral

relief — typically referred to as “post-conviction relief” —

from both the conviction and sentence. Mont. Code Ann.

§ 46-21-101. The state district court that imposed a criminal

sentence has the power “to vacate, set aside, or correct the

sentence.” Id. § 46-21-101(1). A petition for post-conviction

relief “may be filed at any time within 1 year of the date that

the conviction becomes final.” Id. § 46-21-102(1).
4 ROGERS V. FERRITER

On the other track, Montana permits prisoners to seek

modification of their sentences from the Sentence Review

Division (“SRD”). The SRD is a subdivision of the Montana

Supreme Court consisting of three district court judges

appointed by the chief justice. See Mont. Code Ann. § 46-18-

901; Charles S. Jordan, Montana’s Sentence Review Division:

A Twenty Year Overview, 49 Mont. L. Rev. 369, 371 (1988). 

The SRD “has the authority . . . to affirm, decrease, increase

or otherwise alter any sentence, subject to those limitations

applicable to the original sentencing judge.” Jordan, supra,

at 372; see also Mont. Code Ann. § 46-18-904. The SRD is

authorized to “adopt any rules that will expedite its review of

sentences.” Mont. Code Ann. § 46-18-901(4).

The SRD’s “primary objective . . . is to provide for

uniformity in sentencing when appropriate and to ensure that

the interest of the public and the defendant are adequately

addressed by the sentence.” Mont. Sentence Rev. Div. R. 16. 

The SRD must ensure that a sentence is based on (1) “[t]he

crime committed”; (2) “[t]he prospects of rehabilitation of the

offenders”; (3) “[t]he circumstances under which the crime

was committed”; (4) and “[t]he criminal history of the

offender.” Id. A sentence is “presumed correct” and “will

not be reduced or increased unless it is deemed clearly

inadequate or excessive.” Id. R. 17.

The rules governing the timing for filing an application

for SRD review are somewhat complicated. The one relevant

statute provides that a petitioner may file an application for

SRD review within sixty days of the date the sentence was

imposed. Mont. Code Ann. § 46-18-903(1). An SRD rule

provides that if an application is filed more than sixty days

after sentence is imposed, the SRD “shall thereafter promptly

notify the defendant that the application is untimely and
ROGERS V. FERRITER 5

request the defendant file within thirty (30) days a statement

of reasons why the Sentence Review Division should hear the

matter.” Mont. Sentence Rev. Div. R. 7. The rule specifies

that a direct appeal of the sentence is a sufficient “reason” for

a late filing: “The Sentence Review Division will hear late

applications which have been caused by the taking of an

appeal to the Montana Supreme Court.” Id. Rule 8 further

provides:

When there is a pending appeal or request for

post-conviction relief, the application for

Sentence Review should not be filed until

such time as the petition for post-conviction

relief or the appeal has been determined, at

which time the defendant shall be given sixty

(60) days in which to file for review of the

sentence.

Id. In other words, filing an application within sixty days of

the imposition of sentence is not a prisoner’s only route to

SRD review. A prisoner may also seek SRD review within

sixty days of the determination of a direct appeal, or within

sixty days of the determination of a petition for postconviction review.

B. State Proceedings

Petitioner Rusty Rogers was convicted in a state jury trial

in Montana of two counts of felony sexual assault. State v.

Rogers, 168 P.3d 669, 671 (Mont. 2007). On February 2,

2006, the state district court sentenced Rogers to

“twenty-year concurrent prison terms on both counts, with ten

years suspended.” Id. at 674. Rogers filed an application for

SRD review five days later.
6 ROGERS V. FERRITER

On September 11, 2007, the Montana Supreme Court

affirmed Rogers’s convictions and sentences on direct

appellate review. Id. at 678. Rogers did not seek certiorari,

and his convictions became final ninety days later. Bowen v.

Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). On January 3,

2008, after Rogers’s convictions had become final, the SRD

notified Rogers that it would hold a hearing to review his

sentence on February 7.

On January 18, the SRD sent Rogers another letter,

explaining that it had learned from Rogers’s father that

Rogers was in the process of filing a petition for state postconviction relief. The SRD explained its standard practice:

Pursuant to Rule 7 of the Rules of the

Sentence Review Division of the Supreme

Court of Montana, please be advised that all

appeals must be completed prior to a sentence

review hearing.

If you are in fact filing a post conviction

relief, your application for sentence review

will be held in abeyance pending the outcome

of your post conviction and notification to the

Sentence Review Division within sixty (60)

days from the date in which your

postconviction is decided.

Please reply as soon as possible to the address

above as to whether you are proceeding with

a post conviction or other type of an appeal. 

If you are, I will continue your hearing

pending the outcome of your post conviction

or other type of an appeal . . . .
ROGERS V. FERRITER 7

Rogers replied in a handwritten letter on January 25,

stating that he had a new lawyer “looking over my case so

that he can file for the next level of the appeal process.” 

Rogers asked the SRD to cancel his February 7 hearing and

push back his sentence review process “as far as possible

until all of my appeal options have been exhausted.”

On January 29, the SRD issued an Order to Continue

Sentence Review Hearing. The SRD ordered “that the

sentence review hearing . . . is hereby vacated, and the

Application for Review of Sentence will be held in abeyance

pending notification to the Sentence Review Division within

60 days of the decision of the Defendant’s final appeal.” On

January 31, the SRD wrote to Rogers, informing him, “You

will need to notify the Sentence Review Division within sixty

(60) days from the date in which your post conviction is

decided if you are still interested in pursuing a review of your

sentence with the Sentence Review Division. If you fail to

notify this office within the time allowed, your file will not be

reactivated.”

Rogers filed a petition for state post-conviction relief on

November 28, 2008, 303 days after the SRD ordered his

application for sentence review held in abeyance. The state

district court denied post-conviction relief. The Montana

Supreme Court affirmed the denial on May 17, 2011. Rogers

v. State, 253 P.3d 889 (Mont. 2011). Rogers did not notify

the SRD within sixty days of the Supreme Court’s decision. 

Consequently, the SRD did not reactivate his sentence review

application.
8 ROGERS V. FERRITER

C. Federal Proceedings

On March 9, 2012, Rogers filed a federal habeas petition,

297 days after the Montana Supreme Court affirmed the

denial of post-conviction relief. The parties agree that

Rogers’s federal habeas petition is untimely absent statutory

tolling of the 303-day period while his application for SRD

review was held in abeyance.

The magistrate judge concluded that Rogers’s application

for SRD review was a “properly filed application for State . . .

collateral review” within the meaning of § 2244(d)(2), and

that AEDPA’s statute of limitations was tolled when Rogers

applied for sentence review by the SRD. However, he

concluded that Rogers’s application was no longer “pending”

as soon as the SRD held it in abeyance. He concluded that

the limitations period was therefore not tolled during the 303

days from January 29, 2008, when the SRD ordered that

Rogers’s application be held in abeyance, to November 28,

2008, when Rogers filed his petition for state post-conviction

relief.

The magistrate judge acknowledged the definition of

“pending” provided by the Supreme Court in Carey v.

Saffold, 536 U.S. 214 (2002). In Saffold, the Court held that

“an application is pending as long as the ordinary state

collateral review process is ‘in continuance’ — i.e., ‘until the

completion of’ that process.” Id. at 219–20. But the

magistrate judge viewed Saffold as inapposite because the

question there was whether a petition was pending during

“gaps” between successive filings in state court. The

magistrate judge pointed out that “gap tolling” is not at issue

in this case. Instead, the issue is whether a petition is pending

while it is held in abeyance so that a prisoner can file a
ROGERS V. FERRITER 9

separate petition for other collateral relief. The magistrate

judge explained that if the limitations period were tolled

whenever a prisoner applies for SRD review within 60 days

of sentencing, and the SRD then holds the application in

abeyance until all other proceedings are completed, the tolled

period could be extremely long. He wrote that if tolling were

allowed in this circumstance,

everyMontana prisoner qualified for sentence

review would be well-advised to apply for

[sentence review] within sixty days of

sentencing, whether review was really desired

or not. Doing so would, in effect, increase the

federal limitations period to at least two years

and two months: one year after the conclusion

of direct review to prepare a state

postconviction petition, sixty days thereafter

to decide whether to go ahead with sentence

review, and then one more year after that to

prepare a federal petition — all under the

time-shelter of a sentence review application

filed sixty days after sentencing, and all

without ever intending actually to face the

judges of the Sentence Review Division.

The magistrate judge concluded that the “time should be

tolled under § 2244(d)(2) while Rogers’ application for

sentence review was active, but not while it was inactive.” 

On this view of the matter, AEDPA’s limitations period was

not tolled during the 303-day period between January 29,

2008, when the SRD ordered that Rogers’s application be

held, and November 28, 2008, when Rogers filed his petition

for post-conviction relief. The district court agreed with, and
10 ROGERS V. FERRITER

adopted in full, the conclusions of the magistrate judge, and 

dismissed Rogers’s petition as untimely.

II. Standard of Review

We review de novo whether the district court erred in

dismissing a habeas petition as untimely. Banjo v. Ayers,

614 F.3d 964, 967 (9th Cir. 2010). The petitioner bears the

burden of proving the limitations period was tolled. Id.

III. Discussion

Although AEDPA’s one-year statute of limitations

“begins to run when the state prisoner’s conviction becomes

final,” the limitations period is tolled while a “prisoner’s

‘properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or

claim is pending.’” Id. at 968 (quoting 28 U.S.C.

§ 2244(d)(2)). The dispositive question on appeal is whether

AEDPA’s statute of limitations was tolled after the SRD held

Rogers’s application in abeyance but before Rogers filed for

other state collateral relief. The key to answering this

question is the Supreme Court’s interpretation of “pending.”

The Supreme Court construed “pending,” as used in

§ 2244(d)(2), in Carey v. Saffold. California had argued that

“an application for state collateral review is not ‘pending’ in

the state courts during the interval between a lower court’s

entry of judgment and the timely filing of a notice of appeal

(or petition for review) in the next court. Its rationale [was]

that, during this period of time, the petition is not under court

consideration.” 536 U.S. at 219 (citation omitted). The Court

rejected the argument that an application for state collateral
ROGERS V. FERRITER 11

relief is “pending” only when it is actively under

consideration by a state court.

The Court explained that interpreting “pending” to refer

only to applications actively under consideration was “not

consistent with that word’s ordinary meaning.” Id. The

Court relied on dictionary definitions:

The dictionary defines “pending” (when used

as an adjective) as “in continuance” or “not

yet decided.” Webster’s Third New

International Dictionary 1669 (1993). It

similarly defines the term (when used as a

preposition) as “through the period of

continuance . . . of,” “until the . . . completion

of.” Id. That definition, applied in the present

context, means that an application is pending

as long as the ordinary state collateral review

process is “in continuance” — i.e., “until the

completion of” that process. In other words,

until the application has achieved final

resolution through the State’s post-conviction

procedures, by definition it remains

“pending.”

Id. at 219–20.

Thus, under Saffold, an application for state collateral

relief is pending as long as it is “in continuance.” We believe

that Saffold answers the question before us. Rogers’s

sentence review application was “in continuance” so long as

the SRD held it in abeyance. His application for sentence

review was held in abeyance by the SRD on January 29,

2008, and did not “achieve[] final resolution” until sixty days
12 ROGERS V. FERRITER

after the Montana Supreme Court affirmed the denial of postconviction relief.

Our decision in Welch v. Carey, 350 F.3d 1079 (9th Cir.

2003) (en banc), is not to the contrary. In that case, the

habeas petitioner “filed a state habeas petition . . . raising one

ground, lost, and pursued it no further. Four and a half years

later, petitioner filed a second state habeas petition — this

time in the California Supreme Court — raising different

grounds.” Id. at 1080. We held that “as a matter of federal

law, that petitioner had no application for post-conviction

relief ‘pending’ during the four and a half year gap.” Id. 

“During that period of inaction, all [the petitioner] had under

state law was an opportunity to seek relief of which he did not

take advantage.” Id. at 1083.

The contrast between Welch and this case is obvious. 

Welch involved a petitioner who filed one petition for state

habeas relief, lost, did not appeal, and filed a separate state

habeas petition four years later. By contrast, Rogers filed two

overlapping petitions. His application to the SRD was not an

“opportunity to seek relief of which he did not take

advantage.” Rather, it was an ongoing application for

sentence review that the SRD, following its normal practice,

chose to hold in abeyance while he pursued other collateral

relief.

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme

Court discussed the relationship between AEDPA’s

limitations period and the bar on mixed petitions. The Court

was concerned that “petitioners who come to federal court

with ‘mixed’ petitions run the risk of forever losing their

opportunity for any federal review of their unexhausted

claims. If a petitioner files a timely but mixed petition in
ROGERS V. FERRITER 13

federal district court, and the district court dismisses it . . .

after the limitations period has expired, this will likely mean

the termination of any federal review.” Id. at 275. To avoid

this consequence, the Court approved a “‘stay-and-abeyance’

procedure,” authorizing district courts to “stay the petition

and hold it in abeyance while the petitioner returns to state

court to exhaust his previously unexhausted claims.” Id.

We have described the legal effect of a district court order

holding a petition in abeyance: “Rhines carved out an

exception to [the] total exhaustion rule, allowing a mixed

petition to remain pending in federal court under limited

circumstances.” King v. Ryan, 564 F.3d 1133, 1140 (9th Cir.

2009) (emphasis added). This “exception eliminates entirely

any limitations issue with regard to the originally

unexhausted claims, as the claims remain pending in federal

court throughout.” Id.; see also EPA v. EME Homer City

Generation, L.P., 134 S. Ct. 1584, 1597 n.11 (2014) (noting

that other challenges to a regulation “were not consolidated

with this proceeding, and they remain pending (held in

abeyance for these cases) in the Sixth and D.C. Circuits”);

Woodbury v. United States, 313 F.2d 291, 297 (9th Cir. 1963)

(noting that an appellant “also has a case pending in the Court

of Claims, the case being held in abeyance pending our

decision”).

The federal procedure, in which a federal court holds in

abeyance a federal habeas petition while a state court

addresses unexhausted state post-conviction claims, is

analogous to the SRD’s procedure, in which the SRD holds

in abeyance an application while a state court addresses

undecided state post-conviction claims. We see no reason

why, if a federal habeas petition is “pending,” a state
14 ROGERS V. FERRITER

application for sentencing review is not “pending” in

analogous circumstances.

The magistrate and district judges who carefully

considered this case were appropriately concerned about the

practical problem of applying Saffold’s construction of the

word “pending” to Montana’s dual-track system of collateral

review. We have two answers to their concern.

First, we are not free to ignore the established meaning of

a word based on policy concerns. The Court recently

emphasized this in Kellogg Brown & Root Services., Inc. v.

United States ex rel. Carter, 135 S. Ct. 1970 (2015), in which

it construed “pending” as used in the False Claims Act

(“FCA”). Under the FCA’s first-to-file bar, if a party brings

a qui tam action, “no person other than the Government may

intervene or bring a related action based on the facts

underlying the pending action.” 31 U.S.C. § 3730(b)(5). The

petitioners argued that pending was “used as a short-hand for

the first filed action.” Kellogg, 135 S. Ct. at 1979. In their

view, “the first-filed action remains ‘pending’ even after it

has been dismissed, and it forever bars any subsequent related

action.” Id.

The Court rejected the petitioners’ “peculiar”

interpretation. Id. at 1978. Relying on dictionary definitions,

as it had in Saffold, the Court held that pending “means

‘[r]emaining undecided; awaiting decision,’” id. (quoting

Black’s Law Dictionary 1314 (10th ed. 2014)), and “‘not yet

decided: in continuance: in suspense,’” id.(quoting Webster’s

Third New International Dictionary 1669 (1976)). After an

action was dismissed, it was no longer pending. Id.
ROGERS V. FERRITER 15

The Court recognized that its construction of “pending”

“would produce practical problems.” Id. at 1979. The Court

noted that “if the first-to-file bar is lifted once the first-filed

action ends, defendants may be reluctant to settle such actions

for the full amount that they would accept if there were no

prospect of subsequent suits asserting the same claims.” Id.

Nevertheless, the Court held that while FCA “provisions

present many interpretive challenges . . . it is beyond our

ability in this case to make them operate together smoothly

like a finely tuned machine.” Id. Despite the practical

problems that might follow, the Court said it had “no reason

not to interpret the term ‘pending’ in the FCA in accordance

with its ordinary meaning.” Id. at 1978.

Second, as the State conceded at oral argument, the

practical problem is “easily fixed.” If the SRD is faced with

an early-filed application like Rogers’s, it has a choice. It

may hold the application in abeyance, with the consequence

we see here. Or it may dismiss the application without

prejudice, leaving the prisoner to reapply, under its Rule 7,

within sixty days after the direct appeal has been determined

or within sixty days after a petition for post-conviction review

has been determined. No new state statute would be required. 

The SRD does not even need to issue new rules. All the SRD

must do, the State conceded at argument, is change “how they

issue their orders, or word their orders.”

Conclusion

We REVERSE the district court’s judgment and

REMAND for further proceedings consistent with this

opinion.