government from arguing that the prisoner did not use
the prison mail system or that the mailing was not
properly addressed due to the petitioner’s negligence);
Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999); Jones
v. Bertrand, 171 F.3d 499 (7th Cir. 1999); Sonnier v.
Johnson, 161 F.3d 941 (5th Cir. 1998); Hoggro v. Boone,
150 F.3d 1223 (10th Cir. 1998); Spotville v. Cain, 149
F.3d 374 (5th Cir. 1998); Peterson v. Demskie, 107 F.3d
92 (2d Cir. 1997)(implying that the mailbox rule applies
to the filing of habeas petitions).
C. “Grace period”
Burns v. Morton, 134 F.3d 109. Petitioners whose
convictions were final before April 24, 1996, the effective
date of the AEDPA, have until April 23, 1997, to file
their habeas petitions. According to the Burns court, and
the courts of other circuits, applying 28 U.S.C. §
2244(d)(1) to these petitioners would “be impermissibly
retroactive.”
D. Statutory Tolling
28 U.S.C. § 2244(d)(2) provides that 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.”
In Artuz v. Bennett, _ U.S. , 121 S.Ct. 361, 148
L.Ed. 2d 213 (2000), the Supreme Court held that an
application for post-conviction relief is “properly filed”
“when its delivery and acceptance are in compliance with
the applicable laws and rules governing filings. These
usually prescribe, for example, the form of the document,
the time limits upon its delivery, the court and office in
which it must be lodged, and the requisite filing fee.”
According to the Court, the question of whether an
application is “properly filed” is separate from the issue of
whether the claims are meritorious and not subject to a
state procedural bar. In this case, the Court noted, the
procedural bars did not involve conditions for filing, but,
rather, they pertained to obtaining relief. Accord, Lovasz
v. Vaughn, 134 F.3d 146 (3d Cir. 1998) (Rejecting the
“notion” that a meritless application for post-conviction
relief cannot be “a properly filed application” under §
2244(d)(2), the court held that “a properly filed
application” “is one submitted according to the state’s
procedural requirements, such as the rules governing the
time and place of filing.”).
Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999), cert.
denied, __ U.S. __, 120 S.Ct. 1834, 146 L.Ed.2d 777
(2000); Rhine v. Boone, 182 F.3d 1153 (10th Cir.), cert.
denied, 528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681
(2000); Isham v. Randle, 226 F.3d 691 (6th Cir. 2000).
The term “pending” in 28 U.S.C. § 2244(d)(2) does not
include the time for filing a petition for certiorari in the
United States Supreme Court.Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000).
Where petitioner’s state post-conviction relief proceed-
ing was pending on April 24, 1996, the time for the filing
of a habeas corpus petition was tolled until November 18,
1996, the date the petitioner’s time for seeking an appeal
in the Pennsylvania Supreme Court expired. The court
of appeals rejected the Commonwealth’s contention that
the time was tolled only until October 18, 1996, when
the lower court denied the petition, and the petitioner’s
assertion that the time should have been tolled until May
2, 1997, when the state supreme court denied his nunc
pro tunc request for an appeal. The court of appeals held
that the period of limitation of 28 U.S.C. § 2244(d)(2)
tolls during the time between a judicial ruling and the
timely filing of an appeal or request for an appeal; this
conclusion is “consistent with the plain meaning of the
statutory language as well as the firmly rooted principle
of state-remedy exhaustion.” Accord, Taylor v. Lee, 186
F.3d 557 (4th Cir. 1999), cert. denied, ___ U.S. ___,
120 S.Ct. 1262, 146 L.Ed.2d 117 (2000) (under 28
U.S.C. § 2244(d)(2), entire period of state post-
conviction relief proceedings “from initial filing to final
disposition by the highest state court (whether decision
on the merits, denial of certiorari, or expiration of the
period of time to seek further appellate review), is tolled
from the limitations period” for those petitioners whose
state post-conviction relief proceedings were pending as
of April 24, 1996).In Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999),
cert. denied, ___ U.S. ___, 120 S.Ct. 1846, 146 L.Ed.2d
787 (2000), the statute of limitations of 28 U.S.C. §
2244(d)(2) was tolled during the entire time petitioner
was properly pursuing his state post-conviction relief
remedy. In Nino, the statute began to run on April 24,
1996, and 314 days later, on March 4, 1997, petitioner
filed his first collateral state petition, which was
eventually resolved by the state supreme court’s denial on
August 27, 1997; after this latter denial, the petitioner
had fifty-one days (365 less 314) to file his federal habeas
petition.In Bratcher v. Snyder, 2000 WL 718347 (D. Del.
2000), the court said that a petitioner whose state