Anthony Fielder v. Benjamin Varner

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 01-1463
ANTHONY FIELDER,
Appellant
v.
BENJAMIN VARNER;
THE DISTRICT ATTORNEY OF
COUNTY OF PHILADELPHIA;
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF
PENNSYLVANIA
(Dist. Court No. 00-cv-02599)
District Court Judge: Honorable Louis
Charles Bechtle
Argued: January 12, 2004
Before: ALITO, CHERTOFF, and
BECKER, Circuit Judges.
(Opinion Filed: August 9, 2004)
J. Scott O’Keefe (argued)
Suite 1100
1500 Walnut Street
Philadelphia, PA 19102
Attorney for Appellant
David C. Glebe (argued)
Thomas W. Dolgenos
Robert M. Falin
Office of the District Attorney
1421 Arch Street
Philadelphia, PA 19102
Attorney for Appellee
OPINION OF THE COURT
ALITO, Circuit Judge:
Anthony Fielder, a state prisoner
serving a life sentence, appeals the
dismissal of his application for a writ of
habeas corpus. The District Court
approved and adopted the report and
recommendation of a Magistrate Judge
who concluded that Fielder’s petition in its
entirety was untimely under 28 U.S.C. §
2244(d)(1). We hold that one of Fielder’s
claims (his claim of prosecutorial
misconduct) was untimely and that his
other claim (which sought a new trial
based on newly discovered evidence) is
not cognizable under the federal habeas
statute. We therefore affirm the order of
the District Court, albeit in part on
different grounds.

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I.
In 1990, Fielder was arrested and
charged with murdering Jack Fauntleroy
outside a bar at 52nd and Market Streets in
Philadelphia in September 1989. As
summarized by the trial judge, the
evidence showed the following. Shortly
before Fauntleroy was killed, he became
involved in an argument with a man
named Stefan. Stefan then went into the
bar and emerged with Fielder, who began
to argue with Fauntleroy. Several minutes
later, Antonio Goldsmith, a friend of
Fauntleroy, entered into the argument as
well. After the parties came to blows,
Fielder reentered the bar and returned to
the street with a .38 caliber handgun. As
Fauntleroy was fleeing, Fielder shot and
fatally wounded him.
Two witnesses gave testimony that
tended to show that Fielder was the one
who shot Fauntleroy. Latonia Shawyer,
who was waiting for a bus and did not
previously know either Fauntleroy or
Fielder, testified that she saw Fielder shoot
Fauntleroy. Goldsmith testified that he ran
from the scene when Fielder came out of
the bar with a gun. Goldsmith stated that,
while running, he heard two shots and that
when he turned around, he saw that Fielder
was chasing him with the gun in his hand.
The jury found Fielder guilty of
first-degree murder and possession of an
instrument of crime, and he was sentenced
to imprisonment for life on the murder
conviction and to a lesser concurrent term
for the weapons conviction. Fielder
appealed, claiming among other things that
the prosecutor had committed acts of
misconduct during the trial. However, the
Superior Court affirmed, and the state
supre m e c o u r t d e n ie d allocatur.
Commonwealth v. Fielder, 612 A.2d 1028
(Pa. Super. 1992), allocatur denied, 621
A.2d 577 (Pa. 1993) (table).
Fielder initiated a proceeding under
Pennsylvania’s Post Conviction Relief Act
(PCRA) in which claims of ineffective
assistance of counsel and after-discovered
evidence were raised. Fielder’s after-
discovered evidence claim was based on
the discovery of an alleged eyewitness to
the shooting, Daran Brown, who stated
that a man whom he knew by the name of
Nike was the one who actually shot
Fauntleroy. According to Brown, Fielder
and Fauntleroy were walking down Market
Street when “Nike came running down the
street” behind them and “started shooting
in their direction.” He continued:
T his is when Zark
[Fauntleroy] was shot and
fell down in the middle of
Market Street. After Zark
got shot another guy who I
didn’t know chased Nike up
the street with a gun. At
this point I left the scene.
App. 16.
Brown stated that he did not come
forward with this information at the time
of the shooting because he did want to get
involved and because on the street “the
general feeling is that it is best if you mind
your own business.” App. 16. According
to Brown, he did not learn that Fielder had

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been convicted for the shooting until
October 1997. Id.
The PCRA court denied the
petition, and Fielder appealed and
advanced two arguments. First, he
contended that the PCRA court should
have conducted an evidentiary hearing
regarding the after-discovered evidence.
Second, he argued that the attorney who
represented him in the trial court during
the PCRA proceeding was ineffective for
failing to contact Brown. The Superior
Court rejected both arguments. The Court
held that it was not likely that Brown’s
testimony would have compelled a
different result if it had been offered at
trial and that therefore the standard under
Pennsylvania law for granting a new trial
based on after-discovered evidence was
not met. The Court then concluded that
because the underlying after-discovered
evidence claim lacked merit, Fielder’s
lawyer could not be deemed ineffective
“for failing in his efforts to find Daran
Brown.”
The Superior Court’s decision was
issued on June 10, 1999, and Fielder failed
to file a timely allocatur petition with in
the Pennsylvania Supreme Court. Instead,
after the expiration of the time for filing an
allocatur petition, he submitted a request
for permission to seek allocatur on a nunc
pro tunc basis. The state supreme court
dismissed that request in an order dated
October 25, 1999.
On May 17, 2000, Fielder filed an
application for a writ of habeas corpus in
the United States District Court for the
Eastern District of Pennsylvania. Fielder
argued, first, that the Pennsylvania courts
erred when they rejected his claim of
newly-discovered evidence and, second,
that the prosecutor engaged in misconduct
at trial. The Magistrate Judge to whom the
petition was referred concluded that the
entire petition was untimely. The
Magistrate Judge began by noting that
Fielder’s conviction had become final
before April 24, 1996, the effective date of
the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), which
imposed the present statute of limitations
for federal habeas petitions, 28 U.S.C. §
2244(d)(1). As a consequence, the
Magistrate Judge stated, Fielder’s time to
file his petition began to run one year
thereafter, on April 24, 1997. See Burns v.
Morton, 134 F.3d 109, 110 (3d Cir. 1998).
The Magistrate Judge concluded that the
one-year period for filing the petition was
tolled under 28 U.S.C. §2244(d)(2) from
the date when Fielder filed his PCRA
petition (January 14, 1997) until the date
when the Superior Court affirmed the
dismissal of that petition (June 10, 1999).
When the time again began to run after
this period, the M agistrate Judge
calculated, approximately three and one-
half months of the one-year period
remained, and therefore Fielder had until
“the end of October 1999” to file the
federal petition. Because he did not file
until May 2000, the Magistrate held, the
petition was time-barred.
The District Court approved and
adopted the report and recommendation
without elaboration and therefore

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dismissed the application. The District
Court also denied a certificate of
appealability, but a motions panel of our
Court granted a certificate and set out
issues to be addressed in the briefs. The
order of the motions panel stated:
The parties shall address
whether appellant’s § 2254
petition was timely filed.
Specifically, the parties shall
address (1) whether the
cognizability of Fielder’s
claim of newly discovered
e v i d e n c e a f f e c t s t h e
a p p l i c a t i o n o f §
2244(d )(1)(D), and (2)
whether § 2244(d)(1)(D)
applies to the entire petition
if the time period under §
2244(d)(1)(A) for trial
claims had not expired at the
time of the discovery of the
factual predicate of the
claim of new evidence.
App. at 10.
II.
A.
The timeliness of Fielder’s federal
habeas petition turns on the meaning of 28
U.S.C.. § 2244(d)(1) and thus presents a
question of law subject to plenary review.
See Merritt v. Blaine, 326 F.3d 157, 161
(3d. Cir. 2003). Under 28 U.S.C. §
2244(d)(1), the one-year period for filing
a federal habeas application runs from the
latest of the four dates set out in
subsections (A) through (D). These are:
(A) the date on which
the judgment became final
by the conclusion of direct
review or the expiration of
the time for seeking such
review;
(B) the date on which
the impediment to filing an
application created by State
action in violation of the
Constitution or laws of the
United States is removed, if
the applicant was prevented
from filing by such State
action;
(C) the date on which
the constitutional right
a s s e r te d wa s initially
recognized by the Supreme
Court, if the right has been
newly recognized by the
Supreme Court and made
retroactively applicable to
cases on collateral review;
or
(D) the date on which
the factual predicate of the
claim or claims presented
could have been discovered
through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
Subsection (A) specifies the date
when the one-year period for filing a
federal habeas petition begins in most
cases (at the end of the direct appeals).
Subsection (B) provides a later starting

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date when a state has unlawfully prevented
the petitioner from filing, and subsections
(C) and (D) provide later filing dates in
two circumstances in which claims could
not have been litigated within one year
after the end of direct review, i.e., where
the claim is based on a new, retroactive
rule of constitutional law subsequently
recognized by the Supreme Court and
where the factual predicate of the claim
did not arise or was not discoverable until
after the conclusion of the direct review
period.
B.
Fielder argues that we should apply
these provisions to the present case in the
following manner. He begins by noting
that “an application for a writ of habeas
corpus” by a person in state custody must
be filed within one year after “the latest
of” the four dates set out in subsections
(A) through (D). 28 U.S.C. § 2244(d)(1)
(emphasis added). He then points to
subsection (D), which refers to “the date
on which the factual predicate of the claim
or claims presented could have been
discovered through the exercise of due
diligence.” Fielder then argues that his
entire application was timely because
(taking into account the tolling rule set out
in 28 U.S.C. § 2244(d)(2))1 his application
was filed within one year after the date on
which the factual predicate for the after-
discovered evidence claim could have
been discovered, i.e., the date of Daran
Brown’s affidavit, April 25, 1998. Thus,
on Fielder’s reading of 28 U.S.C.
§2244(d)(1), both his after-discovered
evidence claim and his prosecutorial
misconduct were timely even though the
latter claim, if asserted alone, would have
been time-barred.
An argument very similar to
Fielder’s was adopted by the Eleventh
Circuit in Walker v. Crosby, 341 F.3d
1240 (11th Cir. 2003).2 There, the Court
held that “[t]he statute of limitations in §
2244(d)(1) applies to the application as a
whole; individual claims within an
application cannot be reviewed separately
for timeliness.” Id. at 1245. In reaching
this conclusion, the Court relied primarily
on the language of 28 U.S.C. § 2244(d)(1).
The Court wrote:
The statute directs the court
to look at whether the
“application” is timely, not
whether the individual
“ c l a i m s ” w i t h i n t h e
1On the date of Brown’s affidavit,
and, indeed, on the date when Brown
claims he first became aware of Fielder’s
predicament, Fielder’s PCRA petition was
pending, and under 28 U.S.C. §
2244(d)(2), the pendency of that
proceeding tolled the statute until the
PCRA litigation ended on July 10, 1999.
Fielder argues that since the federal habeas
petition was filed within one year
thereafter, in May 2000, it was timely.
2See also Shuckra v. Armstrong,
No. 3:02cv583(JBA), 2003 U.S. Dist.
LEXIS 4408, 2003 WL 1562097 (D.
Conn. M arch 2003).

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application are timely. The
statute provides a single
statute of limitations, with a
single filing date, to be
applied to the application as
a whole.
Id. at 1243.
The Court added that its
interpretation of § 2244(d)(1) was “guided
by the distinction between an application
and claims within an application, and by
the presumption that Congress understood
the difference when drafting AEDPA.” Id.
at 1243-44. The Court continued:
Section 2244(d)(1) states the
limitation period shall apply
to “an application for a writ
of habeas corpus.” Contrast
the language in § 2244(d)
creating a statute of
l i m i t a t i o n s w i t h t h e
language in § 2244(b)
requiring dism issal o f
certain claims presented in a
s e c o n d o r s u ccess iv e
application. The former
speaks only to the timeliness
of the “application,” while
the latter allows for the
dismissal of “claims” within
a second or successive
application if they were or
could have been presented
in a prior application.
Id.
III.
We do not agree with the
interpretation advanced by Fielder and the
Walker Court. Although Fielder and the
Walker Court claim that this interpretation
is dictated by the language of 28 U.S.C. §
2244(d)(1), their interpretation (which, for
convenience, we will simply call the
Walker interpretation) actually disregards
the language used in the portion of §
2244(d)(1) that is most critical for present
purposes, i.e., subsection (D). Subsection
(D), as noted, refers to “the date on which
the factual predicate of the claim or claims
presented could have been discovered
through the exercise of due diligence.” 28
U.S.C. § 2244(d)(1)(D) (emphasis added).
Applying this language in a case in which
multiple claims are presented poses a
problem, as Fielder’s case illustrates.
Fielder’s application, as noted,
presented two claims, a prosecutorial
misconduct claim and an after-discovered
evidence claim. The factual predicate of
the prosecutorial misconduct claim was
presumably known to Fielder at the time of
trial, but the factual predicate of the after-
discovered evidence claim was not
reasonably discoverable until years later.
So which of these two dates should
control?
If § 2244(d)(1) is applied, as we
believe it must be, on a claim-by-claim
basis, there is no problem, but if, as the
Walker interpretation prescribes, the
claim-by-claim approach is rejected, there
is nothing in § 2244(d)(1) that provides a
ground for picking one date over the other.
The Walker interpretation implicitly reads
subsection (D) as if it refers to “the latest
date on which the factual predicate of any

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claim presented could have been
discovered through the exercise of due
diligence.” But that is not what subsection
(D) says.
Although neither Fielder nor the
Walker Court explains the ground for their
implicit conclusion that subsection (D)
requires a court to pick the latest date
when the factual predicate of a claim was
reasonably discoverable, it is possible that
their analysis is based on the statement in
§ 2244(d)(1) that the application runs from
“the latest of” the four dates specified in
subsections (A) through (D). However,
this reference to “the latest” date does not
appear in subsection (D) and it does not
pertain to the issue at hand. The reference
to “the latest” date in § 2244(d)(1) tells a
court how to choose from among the four
dates specified in subsections (A) through
(D) once those dates are identified. This
language does not tell a court how to
identify the date specified in subsection
(D) in a case in which the application
contains multiple claims. Accordingly,
there is nothing in § 2244(d) that suggests
that a court should follow the Walker
interpretation and select the latest date on
which the factual predicate of any claim
presented in a multi-claim application
could have reasonably been discovered. It
would be just as consistent with the
statutory language to pick the earliest date.
For these reasons, we believe that
the Walker interpretation fails on its own
terms. It purports to be based on the
language of § 2244(d)(1) but actually
neglects to pay close attention to the
statutory language.
IV.
If we look beyond the words of the
statute, as we believe we must in this case,
we see two strong reasons for concluding
that the statute of limitations set out in §
2244(d)(1) should be applied on a claim-
by-claim basis.
A.
First, this is the way that statutes of
limitations are generally applied, and there
is no reason to suppose that Congress
intended to make a radical departure from
this approach in § 2244(d)(1). In both
civil and criminal cases, statutes of
limitations are applied on a claim-by-claim
or count-by-count basis. When a statute of
limitations defense is raised in a case with
a multi-claim civil complaint or a multi-
count criminal indictment, the court
determines the date on which the statute
began to run for each of the claims or
counts at issue, not just the latest date on
which the statute began to run for any of
the claims or counts. See, e.g., King v.
Otasco, Inc., 861 F.2d 438, 441 (5th Cir.
1988) (“When a suit alleges several
distinct causes of action, even if they arise
from a single event, the applicable
limitations period must be determined by
analyzing each cause of ac tion
separately.”); Home Indem. Co. v. Ball-Co
Contractors, Inc., 819 F.2d 1053, 1054
(11th Cir. 1987) (holding that the District
Court had erred in dismissing the
appellant’s separate but related claim on
statute of limitations grounds because it
was in fact governed by a different statute
of limitations); Barnebey v. E.F. Hutton &

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Co., 715 F. Supp. 1512, 1525 (M.D. Fla.
1989) (establishing different statute of
limitations for the different civil claims
against the defendant); Weeks v.
Remington Arms Co., 733 F.2d 1485,
1486 (11th Cir. 1984) (affirming the
District Court’s dism issal of the
appellant’s strict liability claims but
reversing the District Court’s directed
verdict on the appellant’s negligence
claims); Contract Buyers League v. F & F
Inv., 300 F. Supp. 210, 221 (N.D. Ill.
1969) (applying antitrust statute of
limitations to the antitrust counts but
determining what limitation applied to the
other Civil Rights counts); United States v.
Spector, 1994 U.S. Dist. LEXIS 12500,
1994 WL 470554 (D.N.H. Aug. 31, 1994)
(dismissing several counts of a multiple-
count indictment as time-barred but
sustaining other counts of the indictment);
People v. Kelly, 299 Ill. App. 3d 222, 225
(Ill. App. Ct. 1998) (describing the seven-
count information under which the
defendant was charged and the fact that
the defendant’s motion to dismiss three
counts because they charged crimes whose
statutes of limitations had run was
granted); State v. Stansberry, 2001 Ohio
App. LEXIS 3014, 2001 WL 755898
(Ohio Ct. App. July 5, 2001) (denying
defendant’s argument that his felony
murder conviction should have been
barred by the statute of limitations because
the underlying felony, aggravated robbery,
was time-barred).
The Walker interpretation,
recounted above, holds that the wording of
§ 2244(d)(1) forecloses a claim-by-claim
approach because it refers to the period
within which “an application,” rather than
a “claim,” must be filed. But there is
nothing unusual about the wording of §
2244(d)(1). It is common for statute of
limitations provisions to be framed using
the model of a single-claim case. For
example, the general statute of limitations
for federal claims, 28 U.S.C. § 1658,
prescribes the date by which “a civil
action” must be commenced. State
statutes often use similar wording. The
New Jersey statutes speak of the time
within “an action of law” must be
commenced. N.J.S.A. § 2A:14-1 et seq.
The Pennsylvania statutes generally refer
to the time within which an “action” or
“proceeding” must be begun. See 42 Pa.
Cons. Stat. Ann. §§ 5501, 5522 et seq.
Although these provisions are
framed on the model of the one-claim
complaint, it is understood that they must
be applied separately to each claim when
more than one is asserted. To take 28
U.S.C. § 1658 as an example, one could
say of the wording of that provision
precisely what the Walker Court said of
the wording of 28 U.S.C. § 2244(d)(1):
The statute directs the court
to look at whether the [“civil
action”] is timely, not
wh ether the individual
“ c l a i m s ” w i t h i n t h e
[complaint] are timely. The
statute provides a single
statute of limitations, with a
single filing date, to be
applied to the [“civil

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action”] as a whole.
Walker, 341 F.3d at 1243 (bracketed
material added). Yet no one, we assume,
would argue that, in a civil case with
multiple federal claims, the statute of
limitations must begin on the same date for
every claim. Rather, each claim must be
analyzed separately. We believe that §
2244(d)(1) was not intended to be applied
in a similar fashion.
B.
Second, we believe that a claim-by-
claim approach is necessary in order to
avoid results that we are confident
Congress did not want to produce.
Specifically, the Walker interpretation has
the strange effect of permitting a late-
accruing federal habeas claim to open the
door for the assertion of other claims that
had become time-barred years earlier.
An example illustrates this point.
Suppose that on direct appeal a criminal
defendant in a state case (Doe) raises only
one federal constitutional claim, say, that
his Fifth Amendment right to be free from
compelled self-incrimination was violated
when the prosecutor made statements in
summation that Doe interprets as
commenting on his failure to take the
stand. Doe is unsuccessful on direct
appeal and chooses not to pursue state
collateral relief. Doe then has one year
from the conclusion of direct review to
file a federal habeas petition asserting this
claim, but he elects not to file a federal
habeas petition, and five years pass. At
the end of that five-year period, the
Supreme Court of the United States hands
down a decision that recognizes a new,
retroactively applicable constitutional
right regarding the conduct of police
interrogations, and it appears that this
right might have been violated in Doe’s
case. Doe unsuccessfully pursues
collateral review in state court, but he does
not file a federal habeas petition, and
another five years pass. At this point, ten
years after the conclusion of the direct
review process, both the self-incrimination
and unlawful interrogation claims are
time-barred by 28 U.S.C. § 2244(d)(1).
Suppose, however, that a short time later
Doe discovers the factual predicate for an
entirely different federal constitutional
issue, namely, that the prosecution may
have violated Brady v. Maryland, 373 U.S.
83 (1963), because it had in its possession
at the time of trial, but did not disclose,
certain arguably exculpatory evidence.
Doe promptly attempts to exhaust state
remedies with respect to this new claim,
and as soon as those efforts prove
unfruitful, he files a federal habeas
petition asserting both the Brady claim and
the previously barred self-incrimination
and unlawful interrogation claims. Under
the Walker interpretation of 28 U.S.C. §
2244(d)(1), the one-year statute begins to
run on the date of the discovery of the
factual predicate of the Brady claim, and
the fo rmerly barred claims are
miraculously revived.
We cannot think of any reason why
Congress would have wanted to produce
such a result. It makes sense to give Doe
time to petition for habeas review of the
new Brady claim, but why should he be
allowed to raise the self-incrimination
claim, which had been time-barred for the

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past nine years? Why should he be
permitted to raise the unlawful
interrogation claim, which had been time-
barred for the past four years? Why
should the late discovery of the Brady
claim revive these unrelated, previously
barred claims? Neither Fielder nor the
Walker Court has explained why Congress
might have wanted to produce such
results, and we cannot think of any
plausible explanation.3
3A treatise argues that the Walker
interpretation of 28 U.S.C. § 2244(d)(1)
avoids unwarranted “piecemeal” habeas
litigation, 1 RANDY HERTZ & JAMES S.
LIEBMAN, FEDERAL HABEAS CORPUS
PRACTICE AND PROCEDURE § 5.2b at 266-
67 & n.70 (4th ed. 2001), but we find this
argument unconvincing because the
circumstances in which the Walker
interpretation would lead to fewer
successive petitions are quite limited.
The category of cases that must be
considered are those in which a state
prisoner exhausts some federal claims on
direct review (“the direct review claims”)
and discovers another federal claim (“the
late accruing claim”) that cannot be raised
on direct review and that falls within §
2244(d)(1)(C) or (D). Within this category
of cases, there are three relevant
subcategories.
In the first, the prisoner does not
learn that he has any basis for asserting the
late accruing claim until more than one
year after the conclusion of direct review.
In this situation, no matter which
interpretation of 28 U.S.C. § 2244(d)(1) is
in effect, the prisoner certainly should not
wait before filing a petition raising the
direct review claims. Without knowing
that he should subsequently have a ground
for the late accruing claim, he will file a
petition raising the direct review claims
before the end of the one-year period and
should later file a second petition under 28
U.S.C. § 2244(b)(2) raising the late
accruing claim.
In the second situation, the prisoner
learns that he has a basis for the late
accruing claim during the one-year period
after the end of direct review, and he also
begins a state collateral proceeding raising
the late accruing claim during this period.
In this situation, the prisoner’s options will
be the same no matter whether our
interpretation or the Walker interpretation
of § 2244(d)(1) is in effect. In either
event, the prisoner will have two choices.
He will be able to file an initial federal
petition raising the direct review claims
and then seek to file a second petition
raising the late accruing claim under 28
U.S.C. § 2244(b)(2). He will also have the
option of waiting until the end of the state
collateral proceeding (which tolls the time
for filing a federal petition raising the
direct review claims) and then filing a
single petition raising both the direct
review claims and the late accruing claim.
In the third situation, the prisoner
learns that he has a basis for the late
accruing claim during the one-year period
after the end of direct review but he does
not begin a state collateral proceeding

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C.
In support of his interpretation of
28 U.S.C. § 2244(d )(1), Fielder
understandably relies on language in
Sweger v. Chesney, 294 F.3d 506 (3d Cir.
2002), but we are not persuaded by this
argument. We note, first, that Sweger did
not concern the issue presented here.
Sweger did not decide when the habeas
statute of limitations begins to run under
28 U.S.C. § 2244(d)(1). Instead, Sweger
concerned the interpretation of 28 U.S.C.
§ 2244(d)(2), which provides for the
tolling of the statute of limitations while a
state post-conviction proceeding is
pending. The question in Sweger was
whether under § 2244(d)(2) a state
proceeding tolls the statute with respect to
just the claims at issue in the state
proceeding or with respect to all the claims
included in a subsequently filed federal
petition. We held that the statute is tolled
for all of the claims in the federal petition.
That interpretation of § 2244(d)(2)
obviously does not require us in this case
to adopt the Walker interpretation of 28
U.S.C. § 2244(d)(1).
Nor is there any logical
inconsistency between the holding in
Sweger and our holding here. The heart of
our reasoning in Sweger was as follows:
Section 2244(d)(2) states,
“the 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
l i m i ta t i o n u n d e r t h i s
subsection.” 28 U.S.C. §
2 2 4 4 ( d ) ( 2 ) ( e m p h a s i s
added). Reading this
language to require that the
s t a t e p o s t - c o n v i c t i o n
proceeding raise the claims
contained in the habeas
petition ignores the use of
the word “judgment” in the
statute. See Carter [v.
Litscher, 275 F.3d 663, 665
(7th Cir. 2001)] (“Austin [v.
Mitchell, 200 F.3d 391 (6th
Cir. 1999)] reads the word
‘ju dgm ent’ out o f §
2244(d)(2) and tolls the time
only while a particular
‘claim’ . . . is before the
state court. That is just not
what the statute says. Any
properly filed collateral
during this period. In this situation, the
choice between the Walker interpretation
and ours would make a difference, but we
believe that very few cases will fall into
this category. As a result, we do not think
that our interpretation will lead to any
significant increase in the number of
successive federal habeas applications. In
addition, the mild impact on judicial
economy of a few successive federal
habeas applications would be far less than
the impact on state courts of a rule that
allows all claims of error to be resuscitated
through the happenstance of reviving a
single claim under Subsection (c) or (d).

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challenge to the judgment
tolls the time to seek federal
c o l l a t e r a l r e v i e w . ” )
(emphasis in original).
294 F.3d at 516-17 (bracketed material
added ). We thus relied on a
straightforward application o f the
particular language of 28 U.S.C. §
2244(d)(2), and there is no tension
b e tw e e n t h i s an a l ys i s a n d o ur
interpretation in this case of 28 U.S.C. §
2244(d)(1).
As Fielder stresses, however, our
opinion in Sweger does contain statements
concerning 28 U.S.C. § 2244(d)(1) that
support his position here. In particular,
Sweger stated that the 28 U.S.C. §
2244(d)(1) must be applied to a habeas
petition as a whole and not on a claim-by-
claim basis. 294 F.3d at 514-15, 517. The
Sweger Court used this interpretation of 28
U.S.C. § 2244(d)(1) as non-claim-specific
to bolster its interpretation of 28 U.S.C. §
2244(d)(2) as likewise non-claim-specific.
Because these statements were dicta,
however, they do not bind us, and for the
reasons explained above, we conclude that
28 U.S.C. § 2244(d)(1), like other statute
of limitations provisions, must be applied
on a claim-by-claim basis.
V.
Applying our interpretation of §
2244(d)(1) to the present case, it is clear
that Fielder’s prosecutorial misconduct
claim was not filed on time. Subsection
(D) does not save this claim because the
factual basis for the prosecutorial
misconduct claim was known many years
earlier. Thus, subsection (A) governs.
Even with tolling, there is no dispute that
Fielder filed his federal petition long after
the date specified under subsection (A).
Accordingly, Fielder’s claim of
prosecutorial conduct is time-barred, and
it was properly dismissed by the District
Court.
By contrast, Fielder’s after-
discovered evidence claim is timely under
§ 2244(d)(1)(D). Nevertheless, we can
affirm the decision of the District Court on
the alternative ground that this claim is not
cognizable under the federal habeas statute
because it rests on state, rather than
federal, law. It has long been recognized
that “[c]laims of actual innocence based on
newly discovered evidence” are never
grounds for “federal habeas relief absent
an independent constitutional violation.”
Herrera v. Collins, 506 U.S. 390, 400
(1993). Therefore, Fielder’s after-
discovered evidence claim was properly
dismissed by the District Court.
IV.
For the reasons set out above, we
affirm the District Court’s order.

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