Rusty Rogers v. Mike Ferriter; Martin Frink

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.

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ROGERS V. FERRITER 2
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 Respondents-
Appellees.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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).

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ROGERS V. FERRITER 4
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

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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 post-
conviction 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.

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ROGERS V. FERRITER 6
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 post-
conviction 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 . . . .

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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.

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ROGERS V. FERRITER 8
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

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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,
every Montana 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

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ROGERS V. FERRITER 10
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

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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

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ROGERS V. FERRITER 12
after the Montana Supreme Court affirmed the denial of post-
conviction 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

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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

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ROGERS V. FERRITER 14
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.

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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.

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