Calvin O’neil Allen v.  DAVID MITCHELL; ROY ALLEN COOPER, Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CALVIN O’NEIL ALLEN,
Petitioner-Appellant,
v. No. 00-7439 
DAVID MITCHELL; ROY ALLEN
COOPER, Attorney General,
Respondents-Appellees. 
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Graham C. Mullen, Chief District Judge.
(CA-00-99)
Argued: September 26, 2001
Decided: December 27, 2001
Before WIDENER and WILKINS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Wilkins wrote the
opinion, in which Judge Widener and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Neal Lawrence Walters, Appellate Litigation Clinic,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant. Clarence Joe DelForge, III, Assistant Attor-
ney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees. ON BRIEF: Roy Cooper,

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Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees.
OPINION
WILKINS, Circuit Judge:
Calvin O’Neil Allen appeals the dismissal of his habeas corpus
petition as untimely, contending that the district court erred in holding
that the statute of limitations was not tolled during the period between
stages of state collateral review. We hold that the statute of limitations
was tolled for some but not necessarily all of the period in question,
and that the record does not contain sufficient information to deter-
mine whether Allen’s petition was timely. Accordingly, we vacate the
dismissal of Allen’s petition and remand for further proceedings.
I.
In 1994, a North Carolina jury found Allen guilty of attempted rob-
bery with a firearm. Allen did not appeal. In August 1995, he filed
a Motion for Appropriate Relief (MAR) in superior court. The motion
was denied the following month. Over four years later, on March 13,
2000, Allen filed a petition for certiorari in the North Carolina Court
of Appeals, seeking review of the denial of his MAR.1 The appellate
court denied Allen’s petition on March 23, 2000.
On May 11, 2000, Allen filed a federal habeas corpus petition. See
28 U.S.C.A. § 2254 (West 1994 & Supp. 2001). The Respondent
("the State") moved to dismiss the petition as untimely. The State
argued that the one-year statute of limitations established by 28
1Allen’s petition was dated March 9, 2000, and it should arguably be
treated as having been filed on that date. Cf. United States v. Torres, 211
F.3d 836, 837 n.3 (4th Cir. 2000) (declining to decide whether prison
mailbox rule applies to filing of federal collateral review applications in
district court). We take no position on that question here. For conve-
nience, this opinion will refer to all documents as having been filed on
the dates they were received by the courts to which they were submitted.
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U.S.C.A. § 2244(d) (West Supp. 2001) elapsed during the interval
between the denial of Allen’s MAR in 1995 and the filing of his peti-
tion for certiorari in 2000. The district court accepted this argument
and dismissed Allen’s petition.
II.
As noted above, § 2244(d) establishes a one-year statute of limita-
tions for § 2254 petitions. This section further provides for tolling of
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." 28 U.S.C.A. § 2244(d)(2). The issue
before us involves the application of this provision to the "gaps"
between stages of state collateral review. We review this issue de
novo. See Taylor v. Lee, 186 F.3d 557, 559 (4th Cir. 1999).
We have previously held that collateral review proceedings are
"pending," and that the statute of limitations is therefore tolled,
between the denial of post-conviction relief by a state court and the
filing of a timely petition for appellate review. See Hernandez v.
Caldwell, 225 F.3d 435, 438 (4th Cir. 2000); Taylor, 186 F.3d at 561.
The question now before us involves the operation of § 2244(d)(2)
when a prisoner files an untimely petition for appellate review during
state collateral review proceedings. We hold that the statute of limita-
tions is not tolled between the expiration of a state appeal deadline
and the subsequent filing of an untimely appellate petition. After
explaining this holding, we will examine the question of whether
Allen’s certiorari petition was timely under North Carolina law.
A.
When a prisoner files an untimely appellate petition during state
collateral review proceedings, three periods are relevant to the avail-
ability of tolling for the time span between the denial of relief by the
lower court and the conclusion of appellate proceedings: the interval
between the lower court decision and the deadline for seeking review
("Appeal Period"); the interval between this deadline and the filing of
an appellate petition ("Post-Deadline Period"); and the interval during
which the appellate petition is under review by the state court
("Review Period"). We have already held that the statute of limita-
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tions is tolled pursuant to § 2244(d)(2) during the Appeal Period. See
Taylor, 186 F.3d at 561. Furthermore, the plain language of
§ 2244(d)(2) requires tolling during the Review Period if the appellate
petition was "properly filed."2 Thus, the primary question we address
today is whether the statute of limitations should be tolled during the
Post-Deadline Period.
Our sister circuits have taken different approaches to this issue.
The Ninth Circuit holds that "the statute of limitations is tolled from
the time the first state habeas petition is filed until the [state supreme
court] rejects the petitioner’s final collateral challenge." Saffold v.
Newland, 250 F.3d 1262, 1266 (9th Cir.) (internal quotation marks
omitted), cert. granted, 122 S.Ct. 393 (2001). In the case of an
untimely appellate petition, this rule applies unless the state court
expressly dismissed the petition as untimely without any examination
of the merits. See id. at 1267-68. Otherwise, the statute of limitations
is tolled during all three of the periods mentioned above, including the
Post-Deadline Period.
By contrast, the Fifth, Seventh, and Tenth Circuits hold that the
statute of limitations is not tolled during the Post-Deadline Period.
See Melancon v. Kaylo, 259 F.3d 401, 406-07 (5th Cir. 2001); Gibson
v. Klinger, 232 F.3d 799, 807 (10th Cir. 2000); Fernandez v. Sternes,
227 F.3d 977, 979-81 (7th Cir. 2000). These courts reason that noth-
ing is "pending" for purposes of § 2244(d)(2) when the time for seek-
ing review has elapsed and there is no application under consideration
by the state court. See, e.g., Fernandez, 227 F.3d at 980.
We agree with the majority position. This approach is consistent
with our prior decisions interpreting § 2244(d)(2). In those cases, we
2Other courts disagree about the appropriate method for determining
whether an untimely appellate petition was properly filed. Compare Gib-
son v. Klinger, 232 F.3d 799, 805-06 (10th Cir. 2000) (holding that
whether application was properly filed is determined by reference to state
rules; rejecting reliance by Seventh and Ninth Circuits on statements by
state court), with Melancon v. Kaylo, 259 F.3d 401, 405 n.3 (5th Cir.
2001) (following Gibson in part but holding that federal court must
accept express determination by state court that application was properly
filed). It is not necessary for us to decide that issue here.
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have construed § 2244(d)(2) in the manner best calculated to promote
exhaustion of state remedies. For example, we have held that tolling
the statute of limitations during gaps between stages of review
upholds comity by affording state prisoners a full opportunity to
develop their claims in state court. See Taylor, 186 F.3d at 561. At
the same time, we have been mindful that Congress enacted § 2244(d)
"with the . . . purpose of curbing the abuse of the statutory writ of
habeas corpus." Crawley v. Catoe, 257 F.3d 395, 400 (4th Cir. 2001)
(internal quotation marks omitted), petition for cert. filed, 70
U.S.L.W. 3292 (U.S. Oct. 15, 2001) (No. 01-633).
Allowing tolling after the Appeal Period expires does not promote
exhaustion of state remedies, because a prisoner ordinarily has no
remedies available at that point. It is true that state courts frequently
suspend or create exceptions to their procedural rules, and that review
may therefore be available even after applicable deadlines have
expired. The Fifth, Seventh, and Tenth Circuits have accounted for
this possibility by allowing tolling during the Review Period, while
the untimely petition is actually under consideration by the state
court. See Melancon, 259 F.3d at 405; Gibson, 232 F.3d at 807; Fer-
nandez, 227 F.3d at 979-80. We believe this is sufficient and that a
contrary approach would undermine the statute of limitations by
allowing state courts to extend indefinitely the time for seeking fed-
eral review. See Melancon, 259 F.3d at 407. Accordingly, we join the
Fifth, Seventh, and Tenth Circuits in disallowing tolling during the
Post-Deadline Period.
B.
In light of the holding stated above, we must decide whether Allen
timely filed his certiorari petition. The challenge in this inquiry lies
in the absence of a fixed appellate deadline under North Carolina law.
Under North Carolina law, a non-capital prisoner whose MAR is
denied by the superior court may seek review by filing a petition for
certiorari in the North Carolina Court of Appeals. See N.C. Gen. Stat.
§ 15A-1422(c)(3) (1999); N.C. R. App. P. 21(e). The petition must be
filed "without unreasonable delay." N.C. R. App. P. 21(c). In general,
this requirement is met if the petition would not be subject to dis-
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missal under the equitable doctrine of laches. See White Oak Props.,
Inc. v. Town of Carrboro, 327 S.E.2d 882, 886 (N.C. 1985).
Allen’s petition was not dismissed as untimely. It does not follow,
however, that there was no "unreasonable delay" under Rule 21(c);
the court of appeals may simply have opted to "excuse[] the untimeli-
ness as a matter of state law and rule[] on the merits." Fernandez, 227
F.3d at 981. On the other hand, we cannot say that Allen’s petition
was necessarily untimely solely because it was filed more than four
years after the denial of his MAR. "The doctrine of laches . . . is not
based upon mere passage of time; it will not bar a claim unless the
delay is (i) unreasonable and (ii) injurious or prejudicial to the party
asserting the defense." Patterson ex rel. Jordan v. Patterson, 529
S.E.2d 484, 492 (N.C. Ct. App.) (internal quotation marks omitted),
review denied, 544 S.E.2d 783 (N.C. 2000).
Accordingly, Allen must be afforded an opportunity to explain the
lengthy delay between the denial of his MAR and the filing of his cer-
tiorari petition. We therefore vacate the decision of the district court
and remand for further proceedings (including an evidentiary hearing,
if necessary) to determine whether Allen’s certiorari petition was
timely. If it was not, then the district court must determine when the
Appeal Period ended and how much time subsequently accrued
against the statute of limitations.3
III.
For the foregoing reasons, we vacate the decision of the district
court and remand for further proceedings to determine how much
time accrued against the statute of limitations and to conduct such
additional proceedings as may be necessary.
VACATED AND REMANDED
3Of course, because the statute of limitations established by § 2244(d)
is not jurisdictional, see Harris v. Hutchinson, 209 F.3d 325, 328-29 (4th
Cir. 2000), the State is free to abandon this argument and consent to con-
sideration of the merits of Allen’s petition, see Green v. United States,
260 F.3d 78, 85 (2d Cir. 2001) (allowing filing of untimely federal post-
conviction petition based on Government’s waiver of statute of limita-
tions). We imagine that this approach will often be less burdensome for
the State than a hearing to determine when the Appeal Period elapsed.
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