conviction was final on February 24, 1997, “used” 136
days of his allotted 365 days by filing for state post-
conviction relief on July 10, 1997, and accordingly had
229 days remaining after his post-conviction relief
proceedings became final on November 10, 1998 (when
the state supreme court affirmed the denial of relief) to file
a timely habeas petition. Hence, the petition for habeas
corpus dated September 24, 1999 (318 days after
November 10, 1998) was barred by 28 U.S.C. §
2244(d)(2).
Dictado v. Ducharme, 189 F.3d 889 (9th Cir. 1999).
Petition is time-barred where petitioner did not file
within the one-year limitations period and petitioner’s
fourth state post-conviction relief application, filed in
February 1997, was ultimately determined to be
successive and time-barred; the court of appeals, finding
its reasoning consistent with Lovasz v. Vaughn, 134 F.3d
146, concluded that the fourth post-conviction relief
application was not “properly filed” as it did not comply
with the state’s rules regarding time of filing. “Had
Congress intended to toll the statute of limitations for the
period during which even improper applications were
pending in state court, it would not have included the
‘properly filed’ limitation.”
Habteselassie v. Novak, 209 F.3d 1208 (10th Cir.
2000). A “properly filed” application for state post-
conviction relief is one filed according to the
requirements of the state regarding such applications;
whether an application is not “properly filed” if the state
judge has to evaluate the merits in deciding a petition is
untimely is a “more difficult” question which the court
did not need to address.
Weekley v. Moore, 204 F.3d 1083 (11th Cir.), reh’g
and reh’g en banc denied, 220 F.3d 594, petition for cert.
filed, U.S.L.W. (U.S. Sept. 5, 2000) (No. 00-
6218), held that state post-conviction relief petitions,
dismissed as successive by the state courts, were not
“properly filed” and, thus, did not engender tolling of the
time limitation of 28 U.S.C. § 2244(d)(2).
Hoggro v. Boone, 150 F.3d 1223 (10th Cir. 1998).
For petitioners whose convictions were final before April
24, 1996, the one-year statute of limitations begins to
run on April 24, 1996. The petition in this case, filed on
May 9, 1997, was timely filed because the petitioner had
a state post-conviction relief petition pending from
September 26, 1996, until October 25, 1996; the 365-
day time limitation was hence tolled for twenty-nine
days. The court of appeals also noted, however, that the
time after the denial of post-conviction relief during
which petitioner appealed the denial could not be
counted as additional tolling time because the appeal was
untimely and the appellate court dismissed the appeal on
that basis in December 1996.Jones v. Morton, 195 F.3d 153 (3d Cir. 1999). The
one-year statutory time limitation is not tolled under 28
U.S.C. § 2244(d)(2) during the time a habeas corpus
petition is pending in federal court. Accord, Jiminez v.
Rice, 222 F.3d 1210 (9th Cir. 2000); Grooms v. Johnson,
208 F.3d 488 (5th Cir.1999). The Jones decision is in
conflict with Walker v. Artuz, 208 F.3d 357 (2d Cir.
2000), cert. granted sub nom., 121 S. Ct. 480, 148
L.Ed.2d 454 (2000). Duncan v. Walker, 69 U.S.L.W.
3110 (U.S. Nov. 13, 2000) (No. 00-121), which
affirmatively disagreed with Jones. According to Walker,
“State” in the statute modifies only “post-conviction”
and, therefore, “other collateral review” means federal
habeas corpus. Thus, the statutory limitations period
was tolled during the pendency of Walker’s federal
habeas corpus petition.E. Equitable TollingMiller v. New Jersey Department of Corrections, 145
F.3d 616 (3d Cir. 1998); Jones v. Morton, 195 F.3d 153.
The one-year filing requirement of 28 U.S.C. §
2244(d)(1) is a statute of limitations rather than a
jurisdictional rule; hence, a habeas petition should not be
dismissed if the petitioner establishes an equitable basis
for tolling the limitations period. Accord, Harris v.
Hutchinson, 209 F.3d 325 (4th Cir. 2000); Davis v.
Johnson, 158 F.3d 806 (5th Cir. 1998), cert. denied, 526
U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999);
Brown v. Angelone, 150 F.3d 370 (4th Cir. 1998); Miller
v. Marr, 141 F.3d 976 (10th Cir.), cert. denied, 525 U.S.
891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998); Calderon
v. United States District Court, 128 F.3d 1283 (9th Cir.
1997), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139
L.Ed.2d 884 (1998).Miller v. New Jersey Department of Corrections, 145
F.3d 616, explained that equitable tolling is appropriate
only when rigid adherence to the time limitation would
be unfair. “Generally, this will occur when the petitioner
has ‘in some extraordinary way ... been prevented from
asserting his or her rights.’” “The petitioner must show
that he or she ‘exercised reasonable diligence in
investigating and bringing [the] claims.’ Mere excusable
neglect is not sufficient.”In Jones v. Morton, 195 F.3d 153, the court of appeals
found no basis for equitable tolling where the petitioner