Kevin Mark Abela v. William Martin, Director, Michigan Department of Corrections

SILER, Circuit Judge,

dissenting.

‘‘ The position espoused by the majority sounds good and provides an easy way to determine whether the one-year limitations period under 28 U.S.C. § 2244 (d)(1) is tolled. However, it is a position which has been repudiated by all other Circuits which have interpreted this statute and is a stretch of the law. After all, “Our task is to construe what Congress has enacted. We begin, as always, with the language of the statute.” Duncan v. Walker, 533 U.S. 167, 172 , 121 S.Ct. 2120 , 150 L.Ed.2d 251 (2001).

As the majority correctly analyzes the issue, it is whether the time under 28 U.S.C. § 2244 (d)(2) for tolling purposes also includes the time between the denial of petitioner’s state post-conviction claim and the denial of his petition for a writ of certiorari on that claim before the Supreme Court. The majority holds that this time is also included. We previously held in Isham v. Randle, 226 F.3d 691, 692 (6th Cir.2000), cert. denied, 531 U.S. 1201 , 121 S.Ct. 1211 , 149 L.Ed.2d 124 (2001), that the time was not included for tolling purposes when the petitioner did not seek certiorari review of his collateral attack. I would extend that holding from Isham to the present situation, where the petitioner did file for certiorari to the Supreme Court. In addition to refusing to apply Isham’s reasoning to circumstances in which the petitioner has filed for certiorari review following exhaustion of post-conviction relief, the majority of this court, while conceding that the issue is not properly before us, nonetheless suggests in dicta that Isham itself is not good law. Rather than casting doubt upon Isham , I would extend its holding to the present situation, in which the petitioner did file for certiora-ri to the Supreme Court. Thus, I would find that the time between May 28, 1998, when the Michigan Supreme Court denied leave on Abela’s motion for relief from judgment until October 19, 1998, when the Supreme Court denied certiorari, is not excludable time for tolling under 28 U.S.C. § 2244 (d)(2). The reasons are explained herein.

As the majority explains, there is no Circuit authority in Abela’s favor. Morris v. Horn, 187 F.3d 333, 337 (3d Cir.1999), is the only case to hold that the statute of limitations is tolled under § 2244(d) during the pendency of a petition for certiorari, following the denial of post-conviction relief. However, that case has been repudiated in Miller v. Dragovich, 311 F.3d 574, 580 (3d Cir.2002). The majority has recognized the plethora of authority in agreement with Isham and Miller. See, e.g., Bunney v. Mitchell, 241 F.3d 1151, 1155-56 (9th Cir.), withdrawn on other grounds, 249 F.3d 1188 (9th Cir.2001); Crawley v. Catoe, 257 F.3d 395, 399-400 (4th Cir.2001); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.2001); Coates v. Byrd, 211 F.3d 1225 , 1227 (11th Cir.2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999); Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir.1999).

The authority the majority here uses to justify its decision is from a dissent by Judge Berzon in White v. Klitzkie, 281 F.3d 920, 926 (9th Cir.2002) (Berzon, J., dissenting). But the majority in that case very clearly held that “[a] petition for a writ of certiorari to the United States Su *174 preme Court is simply not an application for state review.” Id. at 924 .

All of these cases follow the same basic reasoning. That is, they hold that the time under which a petition for certiorari is or could be filed is not considered the “time dining which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244 (d)(2). I would adopt that reasoning also.

The plain text of the statute does not suggest otherwise. Obviously the pragmatic approach has its merits, because it promotes an efficient administration of ha-beas corpus cases, but if Congress sees a need to change the system, it may amend the statute just as it has in the past. The recent decisions in Clay v. United States, 537 U.S. 522 , 123 S.Ct. 1072 , 155 L.Ed.2d 88 (2003); and Duncan, 533 U.S. at 167 , 121 S.Ct. 2120 , do not affect our decision in Isham .

More specifically, Duncan construed § 2244(d)(2) in the same way that Isham did, that is, that “State” modified both “post-conviction” and “other collateral review.” Duncan, 533 U.S. at 172 , 121 S.Ct. 2120 . Likewise, Clay followed the majority rule from the Circuits that § 2255 is interpreted to mean that “[A] judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the conviction.” Clay, 123 S.Ct. at 1075 . However, that case involved the issue of when the limitations began to ran on a federal conviction, not a state collateral attack. And, although that decision states that “[t]he Courts of Appeals have uniformly interpreted ‘direct review in § 2244(d)(1)(A) to encompass review of a state conviction by this Court,” id. at 1077 n. 3, it never takes up the issue we are facing, the interpretation of § 2244(d)(2).

Therefore, I would continue to follow Isham in finding that “the denial of state post-conviction relief becomes final ... after a decision by the state’s highest court,” id. at 695 , and I would reverse the judgment of the district court finding Abela’s habeas corpus petition was timely filed.