Kevin Mark Abela v. WILLIAM MART IN, Director, Michigan Department of Corrections

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0374P (6th Cir.)
File Name: 03a0374p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KEVIN MARK ABELA,
Petitioner-Appellant,
v.
WILLIAM MART IN, Director,
Michigan Department of
Corrections,
Respondent-Appellee.
X
-
-
-
->
,
-
-
-
-
-
N
No. 00-2430
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-72095—Robert H. Cleland, District Judge.
Argued: March 26, 2003
Decided and Filed: October 22, 2003
Before: BOGGS, Chief Circuit Judge; MARTIN, SILER,
BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, and ROGERS, Circuit
Judges.
2 Abela v. Martin No. 00-2430
_________________
COUNSEL
ARGUED: James Sterling Lawrence, Detroit, Michigan, for
Appellant. William C. Campbell, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: James Sterling Lawrence, Detroit, Michigan,
for Appellant. William C. Campbell, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
MARTIN, J., delivered the opinion of the court, in which
DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ.,
joined. SILER, J. (pp. 16-18), delivered a separate dissenting
opinion, in which BOGGS, C. J., BATCHELDER,
GIBBONS, and ROGERS, JJ., joined.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. This action
arises from a Michigan manslaughter conviction and
subsequent petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The district court found the habeas petition
timely filed but denied it on the merits. Kevin Mark Abela
appealed that denial. A panel of this court heard argument in
this case, but it declined to reach the merits. The panel held
that under this court’s rule in Isham v. Randle, 226 F.3d 691
(6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001), Abela’s
petition was not timely because the statue of limitations was
not tolled by Abela’s petition for writ of certiorari from the
United States Supreme Court following post-conviction
litigation in state court. The panel held that Abela’s habeas
petition was barred by the statute of limitations set forth in 28
U.S.C. § 2244(d)(1). A majority of the active judges of this
court having agreed to rehear the case en banc, we now hold
that Abela’s petition was timely filed.

-- 1 of 9 --

No. 00-2430 Abela v. Martin 3
Abela was convicted by a jury of voluntary manslaughter
and carrying a concealed weapon on July 24, 1991. He was
sentenced to a term of seven to fifteen years for voluntary
manslaughter and a concurrent sentence of forty months to
five years for carrying a concealed weapon.
Abela appealed his conviction on February 17, 1992, by
raising three issues in the Michigan Court of Appeals. The
Michigan Court of Appeals affirmed Abela’s conviction and
sentence in an unpublished disposition. People v. Abela, No.
144005 (Mich. Ct. App. July 22, 1994). The Michigan
Supreme Court denied Abela’s delayed application for leave
to appeal these issues. People v. Abela, No. 100783 (Mich.
Mar. 31, 1995).
On August 20, 1996, Abela filed a motion for relief from
judgment in the Oakland County Circuit Court, raising six
claims. The motion was denied “for lack of merit on the
grounds presented.” People v. Abela, No. 90-101083
(Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the
same six issues on appeal to the Michigan Court of Appeals,
which also denied leave to appeal and a motion to remand.
People v. Abela, No. 200930 (Mich. Ct. App. July 22, 1997).
On August 9, 1997, Abela again raised these six issues in his
delayed application for leave to appeal to the Michigan
Supreme Court, which likewise denied his petition. People
v. Abela, No. 110260 (Mich. May 28, 1998). On August 3,
1998, Abela filed a petition for certiorari with the United
States Supreme Court, which was denied on October 19,
1998. Abela v. Michigan, 525 U.S. 948 (1998).
On April 26, 1999, before his parole term had ended, Abela
sought a writ of habeas corpus pursuant to section 2254,
raising the same claims as in his motion for relief from
judgment (except for his claim regarding the trial court’s
decision to reconsider its dismissal of the concealed weapon
charge). The district court issued a memorandum opinion and
denied the petition for habeas relief on October 31, 2000. On
4 Abela v. Martin No. 00-2430
December 28, 2000, the district court denied Abela’s motion
for a certificate of appealability.
Abela appealed his denial of the motion to this court. We
granted his certificate of appealability on the issues before us
on April 20, 2001.
Between August 20, 1996, and May 28, 1998, Abela sought
state collateral relief in the Michigan trial, appellate, and high
courts. The limitations period was clearly tolled during this
period because Abela’s state collateral relief motions were
pending in the various state courts. See Carey v. Saffold, 536
U.S. 214, 220 (2002). In Carey, the Court held that “until the
application has achieved final resolution through the State's
post-conviction procedures, by definition it remains
‘pending.’” Id. Thus, the key issue before us today is
whether the one-year statute of limitations applicable to
federal habeas corpus petitions is also tolled during the period
in which a petitioner may seek, and the Supreme Court
considers whether to grant, certiorari review of the denial of
the petitioner’s state collateral relief motion.
Title 28 U.S.C. § 2244(d)(1) provides a one-year period of
limitations for people “in custody pursuant to the judgment of
a State court” to file an application for a writ of habeas
corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of
this one-year period as follows: “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
limitation under this subsection.”
For prisoners whose convictions became final prior to
April 24, 1996, the effective date of the Anti-Terrorism and
Effective Death Penalty Act, the one-year limitations period
runs against them as of that date. Austin v. Mitchell, 200 F.3d
391, 393 (6th Cir. 1999). Abela’s judgment of conviction
became final prior to April 24, 1996, so his one-year
limitations period began running on that date.

-- 2 of 9 --

No. 00-2430 Abela v. Martin 5
The Supreme Court recently concluded that a federal
habeas corpus petition does not constitute “State post-
conviction or other collateral review” in order to toll the one-
year limitations period pursuant to section 2244(d)(2).
Duncan v. Walker, 533 U.S. 167, 182 (2001). Significantly,
for our purposes, the Court construed the phrase “State post-
conviction or other collateral review” to mean “State post-
conviction [review]” and “other State collateral review.” Id.
at 175-76. Accordingly, the section 2241(d)(1) limitations
period is not tolled while federal habeas corpus proceedings
are pending, because federal habeas proceedings are neither
“State post-conviction” nor “other State collateral review.”
Id. at 181-82. Thus, the more narrow question presented here
is whether a petition for writ of certiorari to the Supreme
Court may constitute a “properly filed” and “pending”
application for “State post-conviction [review]” or “other
State collateral review” so as to toll the section 2244(d)(1)
limitation period.
This Court’s pre-Duncan decision in Isham v. Randle, 226
F.3d 691 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001),
upon which the panel opinion relied, dealt with the situation
where a petitioner could have sought, but did not seek,
certiorari review of his Ohio collateral review motion. We
held that “the one year limitations period is not tolled during
the ninety days in which defendant could have petitioned the
Supreme Court for a writ of certiorari . . . .” Id. at 692.
First, we reasoned, based on the statute’s plain language,
the word “State” in section 2244(d)(2) modifies “post-
conviction or other collateral relief.” Id. at 695. This court
concluded that “[a] petition for certiorari to the United States
Supreme Court is not ‘state post-conviction relief.’ Neither
is such a petition ‘other state collateral relief.’” Id. Thus, we
decided, as had the Tenth Circuit, that “a petition for writ of
certiorari to the United States Supreme Court is ‘simply not
an application for state review of any kind.’” Id. (citing Rhine
v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999)). We also
reasoned that our holding was bolstered by the fact that
6 Abela v. Martin No. 00-2430
seeking certiorari in the United States Supreme Court is not
a mandatory part of state court review, as it is not a
prerequisite to pursuing habeas corpus. Fay v. Noia, 372 U.S.
391, 435 (1963). Finally, we concluded that differences in
section 2244(d)(1)(A) and section 2244(d)(2) suggest that
Congress did not intend section 2244(d)(2) tolling to apply to
potential Supreme Court review. Isham, 226 F.3d at 695.
Specifically, section 2244(d)(1)(A) provides that the one-year
limitations period begins to run after “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review,” whereas
Congress neglected to use similar language in section
2244(d)(2). Id.
The Supreme Court has decided cases since Isham that cast
that case in a different light. As to Isham’s first rationale,
Duncan confirmed our interpretation that the word “State” in
section 2244(d)(2) modifies “post-conviction or other
collateral relief.” 533 U.S. at 175-76. As to Isham’s second
rationale, that petitioning for certiorari on the underlying
conviction is not required in order to seek habeas corpus
review, the Supreme Court’s recent decision in Clay v. United
States, 123 S. Ct. 1072, 1075, __ U.S. __ (2003), offers an
analogy for the question before us. In that case, the Court
determined that a federal criminal conviction becomes final,
for the purposes of calculating the one-year time period in
which to move to vacate pursuant to 28 U.S.C. § 2255, when
the time expires for filing a petition for certiorari to contest
the federal appellate court’s affirmance of conviction. Id. at
1075. The Court discussed the meaning of finality, id. at
1076:
Here, the relevant context is postconviction relief, a
context in which finality has a long-recognized, clear
meaning: Finality attaches when this Court affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for
filing a certiorari petition expires. See, e.g., Caspari v.
Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d

-- 3 of 9 --

No. 00-2430 Abela v. Martin 7
236 (1994); Griffith v. Kentucky, 479 U.S. 314, 321, n. 6,
107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Barefoot v.
Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d
1090 (1983); United States v. Johnson, 457 U.S. 537,
542, n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982);
Linkletter v. Walker, 381 U.S. 618, 622, n. 5, 85 S.Ct.
1731, 14 L.Ed.2d 601 (1965).
Further, the Court noted 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.” Clay,
123 S. Ct. at 1077, n.3 (citations omitted). The reasoning
underlying the Court’s decision in Clay is analogous to the
situation before us. The Supreme Court’s direct review of a
federal criminal conviction is not identical to its review of a
state habeas petition, but in each situation the decision of the
federal appellate court and the highest court in the state,
respectively, is not final, if certiorari is sought, until the
Supreme Court denies certiorari, and, if certiorari is not
sought, until the period for seeking certiorari expires.
Finally, as to Isham’s third rationale, highlighting the
difference in language between sections 2244(d)(1)(A) and
2244(d)(2) as supportive of the narrow reading of the latter,
the Supreme Court recently said, “‘The . . . presumption--that
the presence of a phrase in one provision and its absence in
another reveals Congress’[s] design--grows weaker with each
difference in the formulation of the provisions under
inspection.’” Clay, 123 S. Ct. at 1079 (citing Columbus v.
Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435-36
(2002)).
Isham, nevertheless, is in line with the majority of our sister
circuits. The Tenth Circuit concluded, using broad language,
that section 2244(d)(2) did not toll the limitations period
where the petitioner had actually sought certiorari in the
Supreme Court. Rhine, 182 F.3d at 1156. The Fourth Circuit
agreed where, as here, the petitioner had actually sought
certiorari. Crawley v. Catoe, 257 F.3d 395, 399-400 (4th Cir.
8 Abela v. Martin No. 00-2430
2001). Other circuits, relying on Rhine, have reached the
same conclusion with respect to petitioners who had not
actually sought certiorari review—the scenario presented in
Isham. See Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.
2001); Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001);
Coates v. Byrd, 211 F.3d 1225, 1227(11th Cir. 2000); Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999); see also Isham,
226 F.3d 691.
Until recently the Third Circuit distinguished situations
where certiorari is actually sought from those where it is not.
In particular, in 1999, the Third Circuit concluded that the
limitations period was tolled during the period where a
petitioner actually sought certiorari. See Morris v. Horn, 187
F.3d 333, 336-37 (3d Cir. 1999). However, subsequent to the
decision in Morris, the Third Circuit concluded that the
ninety-day period for seeking certiorari review in the
Supreme Court should not be considered to toll the limitations
period under section 2244(d)(2) where the petitioner has not
actually sought certiorari. See Nara v. Frank, 264 F.3d 310,
318 & n.4 (3d Cir. 2001); Stokes v. Dist. Attorney of the
County of Phila., 247 F.3d 539 (3rd Cir. 2001). This
distinction relied on the use of the word “pending” in section
2244(d)(2), concluding that where no petition for certiorari is
actually filed, nothing can be “pending” under section
2244(d)(2). Nara, 264 F.3d at 318. Recently, however, the
Third Circuit abandoned this distinction altogether, joining
the majority of the circuits. See Miller v. Dragovich, 311
F.3d 574 (3d Cir. 2002). The court said, “To avoid Duncan
we would have to hold that Congress intended to distinguish
between the exercise of Supreme Court certiorari jurisdiction
and federal habeas corpus jurisdiction in enacting section
2244(d)(2).” Id. at 579.
The Second and Seventh Circuits adopted a narrow version
of the approach taken in Isham, Coates, Ott, Miller, and
Rhine, limiting their holdings to a rule that the period during
which certiorari may be sought cannot toll the limitations
period where certiorari is not actually sought. See Gutierrez

-- 4 of 9 --

No. 00-2430 Abela v. Martin 9
v. Schomig, 233 F.3d 490, 491-92 (7th Cir. 2000); Smaldone
v. Senkowski, 273 F.3d 133, 137-38 (2d Cir. 2001). The
Seventh Circuit focused on whether there was any “properly
filed” application where the petitioner had not sought
certiorari to the United States Supreme Court, concluding that
where nothing had been filed, nothing could be “properly
filed” under section 2244(d)(2). Gutierrez, 233 F.3d at 492.
The Seventh Circuit also concluded that where no petition for
certiorari had been filed, nothing could be “pending” under
section 2244(d)(2). Id. Ultimately, however, the Seventh
Circuit declined to address whether “State post-conviction”
review or “other state collateral review” may include a
“properly filed,” “pending” petition for certiorari to the
United States Supreme Court. Id. The Second Circuit,
likewise faced with a situation where the petitioner had not
sought certiorari, adopted the reasoning of the Seventh
Circuit, stating, “Our holding is limited to the facts of this
case, and we do not reach the questions that would have been
raised if a certiorari petition had been properly filed.”
Smaldone, 273 F.3d at 138. The Second and Seventh Circuits
continue to distinguish between situations in which a petition
for certiorari review of the denial of state habeas relief is
actually sought and those cases where it is not.
Although we find this distinction no longer tenable, we take
each situation in turn. First, as to the question presented here,
where a petition for certiorari was actually filed, we find
instructive the reasoning of the dissent in White v. Klitzkie,
281 F.3d 920 (9th Cir. 2002). In dissent in White, Judge
Berzon reasons that “[t]he statute surely tolls only where there
is a ‘properly filed application for State post-conviction or
other collateral review.’ But the question is not whether
White’s application fits this description . . . but whether that
application could still be ‘pending’ once the state courts are
finished with it.” Id. at 926 (Berzon, J., dissenting). She goes
on to say, id.,
[W]hile the application is one for State post- conviction
relief, just as state criminal proceedings can raise federal
10 Abela v. Martin No. 00-2430
issues reviewable in the United States Supreme Court, so
can state habeas proceedings. A state criminal proceeding
. . . is still “pending” even though the state courts are
finished with it, until any petition filed is finally decided.
Similarly, if there is a certiorari petition pending to
review the validity of the state’s denial of such an
application for state post-conviction review, the
application is still “pending”--that is, not finally decided.
The application does not thereby stop being a state
habeas proceeding or turn into a federal rather than a
state application; it is just not finally decided yet.
We agree. In a slightly different context, the Supreme Court,
in Carey v. Saffold, discussed the word “pending”: “The
dictionary defines ‘pending’ (when used as an adjective) as
‘in continuance’ or ‘not yet decided.’ It similarly defines the
term (when used as a preposition) as ‘through the period of
continuance . . . of,’ ‘until the . . . completion of.’” 536 U.S.
at 219 (citing Webster’s Third New International Dictionary
1669 (1993)). We believe that a petition for certiorari from a
state court’s denial of an application for habeas corpus
necessitates that the application is still pending, because it is
“‘in continuance’ or ‘not yet decided.’” Id. The focus of
section 2244(d)(2) is not on the court in which the application
is pending but on the application itself. As long as the
petition for certiorari involves an application for state court
relief, section 2244(d)(2) requires that the statute of
limitations be tolled. The court where the application is
pending is irrelevant. While Duncan clarified that “State”
modifies “review,” it nowhere asserts that “State” also
modifies “pending.”
Judge Berzon’s dissent in White continues, 281 F.3d. at
926-27:
Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150
L.Ed.2d 251 (2001), does not suggest a different
interpretation of § 2244(d)(2). That case based its
holding that a federal habeas petition does not toll the

-- 5 of 9 --

No. 00-2430 Abela v. Martin 11
limitations period on the ground “that an application for
federal habeas corpus review is not an ‘application for
State post-conviction or other collateral review’ within
the meaning of 28 U.S.C. § 2244(d)(2).” Id. at 2129. But
an application for state habeas review, as opposed to an
application for federal habeas review, is “an application
for State post-conviction review or other collateral
review,” regardless of whether that application is being
considered on appeal by a state supreme court or by the
United State Supreme Court on certiorari. Thus, unlike
the reading of § 2244(d)(2) rejected in Duncan, the
interpretation I suggest gives full meaning to the word
“State,” but recognizes that the United States Supreme
Court . . . can consider state . . . cases when they raise
federal issues. Otherwise, what is the United States
Supreme Court hearing when it considers a state habeas
petition on certiorari? Not an application for federal
post-conviction or other collateral review.
We agree with Judge Berzon’s reasoning.
Furthermore, to require a petitioner to file his petition
seeking federal habeas corpus relief before he has sought
certiorari to the Supreme Court does not promote the finality
of state court determinations and encourages the simultaneous
filing of two actions seeking essentially the same relief. This
disposition would also raise concerns about comity and
exhaustion. If we chose to follow the panel decision in this
case, a prisoner could file his petition for writ of certiorari to
the United States Supreme Court on the day the highest state
court denies him collateral relief, but if the United States
Supreme Court takes more than a year to decide his case, the
prisoner will be required to file a federal habeas petition
before the Supreme Court had an opportunity to rule on his
motion for state collateral relief. We doubt that Congress
intended, in the Anti-Terrorism and Effective Death Penalty
Act, to force prisoners to choose between federal habeas relief
and seeking certiorari to the Supreme Court, or to do both
simultaneously. While as a practical matter it is unlikely that
12 Abela v. Martin No. 00-2430
many petitioners will be put in this position, because the
federal habeas court could simply stay the habeas motion
pending the Supreme Court’s resolution of the certiorari
petition, see Miller, 311 F.3d at 580-81, we do not believe it
is appropriate or necessary to read the federal statutes to
dictate such a rule.
We now turn to the question directly at issue in Isham,
although not presented here, whether or not the period for
filing certiorari tolls the statute of limitations where no
petition is actually filed. Once a state supreme court has ruled
on a petitioner’s application for state post-conviction relief,
the petitioner has ninety days to decide whether to petition for
a writ of certiorari. Sup. Ct. R. 13. Section 2244(d)(2)
provides that the one-year statute of limitations is tolled while
a properly filed application for state post-conviction relief is
“pending,” 28 U.S.C. § 2244(d)(2), but it offers no clue as to
whether an application is “pending” during the ninety-day
period for seeking Supreme Court review. If that
determination depends on whether a petitioner ultimately
applies for a writ of certiorari, then courts and litigants can
never know whether the statute of limitations is running
during the period following their state post-conviction review;
that determination will depend on events that are to happen
down the road.
Indeed, petitioners who are equally diligent may face
drastically different fates. Imagine, for example, two state
inmates who file their petitions for state post-conviction relief
after three hundred days in their limitation period have run.
Sixty-five days after their applications for state post-
conviction relief are denied, having passed through the
highest appellate court in the state, their limitations period
under section 2244(d)(1) will expire. On the seventieth day,
each proceeds to another stage in the process: one files a
petition for habeas corpus relief in federal district court, and
because that petition is untimely, the petition is denied; the
other petitions for a writ of certiorari from the United States
Supreme Court, and not only is the petition accepted for

-- 6 of 9 --

No. 00-2430 Abela v. Martin 13
filing, but also the petitioner still has sixty-five days left to
file a habeas corpus petition after the petition for a writ of
certiorari is denied. That is, the petition for writ of certiorari
would have retroactively tolled the second petitioner’s
limitations period, protecting his ability to seek section 2254
relief. The first petitioner, who was equally diligent — and
who chose what is likely a more efficient route to federal
habeas review — will be out of luck. Furthermore, a rule
limiting the tolling to only those habeas corpus petitioners
who actually file for certiorari would create a lock-in effect
for the prison inmate who prepares a certiorari petition for
sixty-nine days, but then changes tack on the seventieth day,
deciding that it would be wiser strategically to file the habeas
petition in the district court. Under the rule applied by a
majority of our sister circuits, the inmate has to file a
protective certiorari petition in order to preserve the
opportunity to later file a habeas petition, generating an
unnecessary and quite often futile hoop through which the
inmate must hop. Failure to file such a protective certiorari
petition because of a tactical change then retroactively
obliterates the sixty-five days the inmate had left, even though
the clock was not actually ticking during the sixty-nine days
spent preparing the certiorari petition to the Supreme Court.
It makes little sense to allow events that happen after a
limitations period appears to have expired to retroactively toll
it, and the Supreme Court has explicitly rejected such a
suggestion for collateral attacks by federal prisoners. In Clay,
the Supreme Court held that the limitations period for a
section 2255 petition does not run during the ninety-day
period for seeking certiorari, even when the petitioner
ultimately does not seek Supreme Court review. 123 S. Ct. at
1075. The only possible basis for distinguishing the Court’s
interpretation in Clay is that whereas there, the Court
determined that a case does not become “final” in the
postconviction context until the conclusion of the time for
seeking Supreme Court review, here, a court would be asked
to determine when an application is no longer “pending.”
Although a case may not be “final” until the ninety-day
14 Abela v. Martin No. 00-2430
period has expired, the argument goes, it is no longer
“pending” once the state court has actually issued an order.
This argument overlooks the almost tautological point that a
case becomes “final” once it is no longer “pending”; they are
but two sides of the same coin. Moreover, in Carey, the
Supreme Court rejected the notion that a case is only
“pending” for the purposes of section 2244(d)(2) until the
court issues its order. 536 U.S. at 219-20. The Court there
concluded that an application for state post-conviction relief
is pending even during the period between one state court’s
decision and the litigant’s appeal to the next level.
Accordingly, “pending” should not be construed to refer only
to the time a court takes to evaluate a case at some stage of
the post-conviction review process; “pending” also refers to
the time allowed an inmate to file a certiorari petition
regardless of whether such filing actually occurs.
A statute of limitations should be clear. At any given point,
courts and litigants should be able to determine whether the
limitations period has begun, is running, is tolled, or has
expired; whether a limitations period is running should not
depend on events that happen only at a later date. Whether
the limitations period is tolled during the ninety days that a
petitioner has to seek certiorari should not depend on whether
the petitioner actually decides to seek certiorari.
Because Clay explicitly holds that federal petitioners are to
receive the benefit of the ninety-day certiorari period even
when they seek no such relief, because Carey advances a
broad definition of when a petition for state relief is
“pending” under section 2244(d)(2), and because the contrary
view leads to an unstable limitations scheme prone to
subsequent revision, we hold that under section 2244(d)(2),
the statute of limitations is tolled from the filing of an
application for state post-conviction or other collateral relief
until the conclusion of the time for seeking Supreme Court
review of the state’s final judgment on that application
independent of whether the petitioner actually petitions the
Supreme Court to review the case.

-- 7 of 9 --

No. 00-2430 Abela v. Martin 15
For the foregoing reasons, we AFFIRM the judgment of the
district court with respect to the timeliness of Abela’s habeas
petition, and the case is otherwise returned to the original
panel for consideration on the merits.
16 Abela v. Martin No. 00-2430
_______________
DISSENT
_______________
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 (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 (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 certiorari 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

-- 8 of 9 --

No. 00-2430 Abela v. Martin 17
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 Supreme 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 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. § 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 habeas 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
18 Abela v. Martin No. 00-2430
decisions in Clay v. United States, 123 S. Ct. 1072 (2003);
and Duncan, 533 U.S. at 167, 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. 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 run 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.

-- 9 of 9 --