                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-2004

Fielder v. Varner
Precedential or Non-Precedential: Precedential

Docket No. 01-1463




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"Fielder v. Varner" (2004). 2004 Decisions. Paper 376.
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PRECEDENTIAL                                J. Scott O’Keefe (argued)
                                            Suite 1100
   UNITED STATES COURT OF                   1500 Walnut Street
          APPEALS                           Philadelphia, PA 19102
    FOR THE THIRD CIRCUIT                   Attorney for Appellant

                                            David C. Glebe (argued)
            No. 01-1463                     Thomas W. Dolgenos
                                            Robert M. Falin
                                            Office of the District Attorney
       ANTHONY FIELDER,                     1421 Arch Street
                                            Philadelphia, PA 19102
             Appellant                      Attorney for Appellee

                 v.

      BENJAMIN VARNER;                            OPINION OF THE COURT
  THE DISTRICT ATTORNEY OF
  COUNTY OF PHILADELPHIA;
  ATTORNEY GENERAL OF THE
                                            ALITO, Circuit Judge:
   STATE OF PENNSYLVANIA
                                                    Anthony Fielder, a state prisoner
                                            serving a life sentence, appeals the
                                            dismissal of his application for a writ of
 ON APPEAL FROM THE UNITED                  habeas corpus.      The District Court
STATES DISTRICT COURT FOR THE               approved and adopted the report and
     EASTERN DISTRICT OF                    recommendation of a Magistrate Judge
        PENNSYLVANIA                        who concluded that Fielder’s petition in its
                                            entirety was untimely under 28 U.S.C. §
   (Dist. Court No. 00-cv-02599)            2244(d)(1). We hold that one of Fielder’s
District Court Judge: Honorable Louis       claims (his claim of prosecutorial
           Charles Bechtle                  misconduct) was untimely and that his
                                            other claim (which sought a new trial
                                            based on newly discovered evidence) is
      Argued: January 12, 2004              not cognizable under the federal habeas
                                            statute. We therefore affirm the order of
  Before: ALITO, CHERTOFF, and              the District Court, albeit in part on
     BECKER, Circuit Judges.                different grounds.

   (Opinion Filed: August 9, 2004)

                                        1
                     I.                             the prosecutor had committed acts of
                                                    misconduct during the trial. However, the
        In 1990, Fielder was arrested and
                                                    Superior Court affirmed, and the state
charged with murdering Jack Fauntleroy
                                                    supre m e c o u r t d e n ie d a lloca tu r.
outside a bar at 52nd and Market Streets in
                                                    Commonwealth v. Fielder, 612 A.2d 1028
Philadelphia in September 1989. As
                                                    (Pa. Super. 1992), allocatur denied, 621
summarized by the trial judge, the
                                                    A.2d 577 (Pa. 1993) (table).
evidence showed the following. Shortly
before Fauntleroy was killed, he became                     Fielder initiated a proceeding under
involved in an argument with a man                  Pennsylvania’s Post Conviction Relief Act
named Stefan. Stefan then went into the             (PCRA) in which claims of ineffective
bar and emerged with Fielder, who began             assistance of counsel and after-discovered
to argue with Fauntleroy. Several minutes           evidence were raised. Fielder’s after-
later, Antonio Goldsmith, a friend of               discovered evidence claim was based on
Fauntleroy, entered into the argument as            the discovery of an alleged eyewitness to
well. After the parties came to blows,              the shooting, Daran Brown, who stated
Fielder reentered the bar and returned to           that a man whom he knew by the name of
the street with a .38 caliber handgun. As           Nike was the one who actually shot
Fauntleroy was fleeing, Fielder shot and            Fauntleroy. According to Brown, Fielder
fatally wounded him.                                and Fauntleroy were walking down Market
                                                    Street when “Nike came running down the
       Two witnesses gave testimony that
                                                    street” behind them and “started shooting
tended to show that Fielder was the one
                                                    in their direction.” He continued:
who shot Fauntleroy. Latonia Shawyer,
who was waiting for a bus and did not                      T his is       whe n     Za rk
previously know either Fauntleroy or                       [Fauntleroy] was shot and
Fielder, testified that she saw Fielder shoot              fell down in the middle of
Fauntleroy. Goldsmith testified that he ran                Market Street. After Zark
from the scene when Fielder came out of                    got shot another guy who I
the bar with a gun. Goldsmith stated that,                 didn’t know chased Nike up
while running, he heard two shots and that                 the street with a gun. At
when he turned around, he saw that Fielder                 this point I left the scene.
was chasing him with the gun in his hand.
                                                    App. 16.
        The jury found Fielder guilty of
                                                            Brown stated that he did not come
first-degree murder and possession of an
                                                    forward with this information at the time
instrument of crime, and he was sentenced
                                                    of the shooting because he did want to get
to imprisonment for life on the murder
                                                    involved and because on the street “the
conviction and to a lesser concurrent term
                                                    general feeling is that it is best if you mind
for the weapons conviction. Fielder
                                                    your own business.” App. 16. According
appealed, claiming among other things that
                                                    to Brown, he did not learn that Fielder had

                                                2
been convicted for the shooting until                Eastern District of Pennsylvania. Fielder
October 1997. Id.                                    argued, first, that the Pennsylvania courts
                                                     erred when they rejected his claim of
        The PCRA court denied the
                                                     newly-discovered evidence and, second,
petition, and Fielder appealed and
                                                     that the prosecutor engaged in misconduct
advanced two arguments.           First, he
                                                     at trial. The Magistrate Judge to whom the
contended that the PCRA court should
                                                     petition was referred concluded that the
have conducted an evidentiary hearing
                                                     entire petition was untimely.           The
regarding the after-discovered evidence.
                                                     Magistrate Judge began by noting that
Second, he argued that the attorney who
                                                     Fielder’s conviction had become final
represented him in the trial court during
                                                     before April 24, 1996, the effective date of
the PCRA proceeding was ineffective for
                                                     the Antiterrorism and Effective Death
failing to contact Brown. The Superior
                                                     Penalty Act of 1996 (AEDPA), which
Court rejected both arguments. The Court
                                                     imposed the present statute of limitations
held that it was not likely that Brown’s
                                                     for federal habeas petitions, 28 U.S.C. §
testimony would have compelled a
                                                     2244(d)(1).      As a consequence, the
different result if it had been offered at
                                                     Magistrate Judge stated, Fielder’s time to
trial and that therefore the standard under
                                                     file his petition began to run one year
Pennsylvania law for granting a new trial
                                                     thereafter, on April 24, 1997. See Burns v.
based on after-discovered evidence was
                                                     Morton, 134 F.3d 109, 110 (3d Cir. 1998).
not met. The Court then concluded that
                                                     The Magistrate Judge concluded that the
because the underlying after-discovered
                                                     one-year period for filing the petition was
evidence claim lacked merit, Fielder’s
                                                     tolled under 28 U.S.C. §2244(d)(2) from
lawyer could not be deemed ineffective
                                                     the date when Fielder filed his PCRA
“for failing in his efforts to find Daran
                                                     petition (January 14, 1997) until the date
Brown.”
                                                     when the Superior Court affirmed the
        The Superior Court’s decision was            dismissal of that petition (June 10, 1999).
issued on June 10, 1999, and Fielder failed          When the time again began to run after
to file a timely allocatur petition with in          this period, the M agistrate Judge
the Pennsylvania Supreme Court. Instead,             calculated, approximately three and one-
after the expiration of the time for filing an       half months of the one-year period
allocatur petition, he submitted a request           remained, and therefore Fielder had until
for permission to seek allocatur on a nunc           “the end of October 1999” to file the
pro tunc basis. The state supreme court              federal petition. Because he did not file
dismissed that request in an order dated             until May 2000, the Magistrate held, the
October 25, 1999.                                    petition was time-barred.
       On May 17, 2000, Fielder filed an                   The District Court approved and
application for a writ of habeas corpus in           adopted the report and recommendation
the United States District Court for the             without elaboration and therefore


                                                 3
dismissed the application. The District                       (A) the date on which
Court also denied a certificate of                     the judgment became final
appealability, but a motions panel of our              by the conclusion of direct
Court granted a certificate and set out                review or the expiration of
issues to be addressed in the briefs. The              the time for seeking such
order of the motions panel stated:                     review;
      The parties shall address                                (B) the date on which
      whether appellant’s § 2254                       the impediment to filing an
      petition was timely filed.                       application created by State
      Specifically, the parties shall                  action in violation of the
      address (1) whether the                          Constitution or laws of the
      cognizability of Fielder’s                       United States is removed, if
      claim of newly discovered                        the applicant was prevented
      evidence affects the                             from filing by such State
      application           of     §                   action;
      2244(d )(1)(D), and (2)
                                                                  (C) the date on which
      whether § 2244(d)(1)(D)
                                                       the constitutional right
      applies to the entire petition
                                                       a s s e r te d wa s initially
      if the time period under §
                                                       recognized by the Supreme
      2244(d)(1)(A) for trial
                                                       Court, if the right has been
      claims had not expired at the
                                                       newly recognized by the
      time of the discovery of the
                                                       Supreme Court and made
      factual predicate of the
                                                       retroactively applicable to
      claim of new evidence.
                                                       cases on collateral review;
App. at 10.                                            or
                    II.                                       (D) the date on which
                                                       the factual predicate of the
                    A.
                                                       claim or claims presented
       The timeliness of Fielder’s federal             could have been discovered
habeas petition turns on the meaning of 28             through the exercise of due
U.S.C.. § 2244(d)(1) and thus presents a               diligence.
question of law subject to plenary review.
                                                 28 U.S.C. § 2244(d)(1).
See Merritt v. Blaine, 326 F.3d 157, 161
(3d. Cir. 2003). Under 28 U.S.C. §                      Subsection (A) specifies the date
2244(d)(1), the one-year period for filing       when the one-year period for filing a
a federal habeas application runs from the       federal habeas petition begins in most
latest of the four dates set out in              cases (at the end of the direct appeals).
subsections (A) through (D). These are:          Subsection (B) provides a later starting


                                             4
date when a state has unlawfully prevented          was filed within one year after the date on
the petitioner from filing, and subsections         which the factual predicate for the after-
(C) and (D) provide later filing dates in           discovered evidence claim could have
two circumstances in which claims could             been discovered, i.e., the date of Daran
not have been litigated within one year             Brown’s affidavit, April 25, 1998. Thus,
after the end of direct review, i.e., where         on Fielder’s reading of 28 U.S.C.
the claim is based on a new, retroactive            §2244(d)(1), both his after-discovered
rule of constitutional law subsequently             evidence claim and his prosecutorial
recognized by the Supreme Court and                 misconduct were timely even though the
where the factual predicate of the claim            latter claim, if asserted alone, would have
did not arise or was not discoverable until         been time-barred.
after the conclusion of the direct review
                                                            An argument very similar to
period.
                                                    Fielder’s was adopted by the Eleventh
                     B.                             Circuit in Walker v. Crosby, 341 F.3d
                                                    1240 (11th Cir. 2003). 2 There, the Court
       Fielder argues that we should apply
                                                    held that “[t]he statute of limitations in §
these provisions to the present case in the
                                                    2244(d)(1) applies to the application as a
following manner. He begins by noting
                                                    whole; individual claims within an
that “an application for a writ of habeas
                                                    application cannot be reviewed separately
corpus” by a person in state custody must
                                                    for timeliness.” Id. at 1245. In reaching
be filed within one year after “the latest
                                                    this conclusion, the Court relied primarily
of” the four dates set out in subsections
                                                    on the language of 28 U.S.C. § 2244(d)(1).
(A) through (D). 28 U.S.C. § 2244(d)(1)
                                                    The Court wrote:
(emphasis added).      He then points to
subsection (D), which refers to “the date                  The statute directs the court
on which the factual predicate of the claim                to look at whether the
or claims presented could have been                        “application” is timely, not
discovered through the exercise of due                     whether the individual
diligence.” Fielder then argues that his                   “claims” w ithin the
entire application was timely because
(taking into account the tolling rule set out
in 28 U.S.C. § 2244(d)(2)) 1 his application        proceeding tolled the statute until the
                                                    PCRA litigation ended on July 10, 1999.
                                                    Fielder argues that since the federal habeas
                                                    petition was filed within one year
       1
       On the date of Brown’s affidavit,            thereafter, in May 2000, it was timely.
and, indeed, on the date when Brown
                                                           2
claims he first became aware of Fielder’s                  See also Shuckra v. Armstrong,
predicament, Fielder’s PCRA petition was            No. 3:02cv583(JBA), 2003 U.S. Dist.
pending, and under 28 U.S.C. §                      LEXIS 4408, 2003 WL 1562097 (D.
2244(d)(2), the pendency of that                    Conn. M arch 2003).

                                                5
       application are timely. The                   interpretation advanced by Fielder and the
       statute provides a single                     Walker Court. Although Fielder and the
       statute of limitations, with a                Walker Court claim that this interpretation
       single filing date, to be                     is dictated by the language of 28 U.S.C. §
       applied to the application as                 2244(d)(1), their interpretation (which, for
       a whole.                                      convenience, we will simply call the
                                                     Walker interpretation) actually disregards
Id. at 1243.
                                                     the language used in the portion of §
        The Court added that its                     2244(d)(1) that is most critical for present
interpretation of § 2244(d)(1) was “guided           purposes, i.e., subsection (D). Subsection
by the distinction between an application            (D), as noted, refers to “the date on which
and claims within an application, and by             the factual predicate of the claim or claims
the presumption that Congress understood             presented could have been discovered
the difference when drafting AEDPA.” Id.             through the exercise of due diligence.” 28
at 1243-44. The Court continued:                     U.S.C. § 2244(d)(1)(D) (emphasis added).
                                                     Applying this language in a case in which
       Section 2244(d)(1) states the                 multiple claims are presented poses a
       limitation period shall apply                 problem, as Fielder’s case illustrates.
       to “an application for a writ
       of habeas corpus.” Contrast                           Fielder’s application, as noted,
       the language in § 2244(d)                     presented two claims, a prosecutorial
       creating a statute of                         misconduct claim and an after-discovered
       limitations with the                          evidence claim. The factual predicate of
       language in § 2244(b)                         the prosecutorial misconduct claim was
       requiring dism issal o f                      presumably known to Fielder at the time of
       certain claims presented in a                 trial, but the factual predicate of the after-
       s e c o n d o r s u ccess iv e                discovered evidence claim was not
       application. The former                       reasonably discoverable until years later.
       speaks only to the timeliness                 So which of these two dates should
       of the “application,” while                   control?
       the latter allows for the                             If § 2244(d)(1) is applied, as we
       dismissal of “claims” within                  believe it must be, on a claim-by-claim
       a second or successive                        basis, there is no problem, but if, as the
       application if they were or                   Walker interpretation prescribes, the
       could have been presented                     claim-by-claim approach is rejected, there
       in a prior application.                       is nothing in § 2244(d)(1) that provides a
Id.                                                  ground for picking one date over the other.
                                                     The Walker interpretation implicitly reads
                     III.                            subsection (D) as if it refers to “the latest
       We      do   not     agree   with   the       date on which the factual predicate of any

                                                 6
claim presented could have been                                            IV.
discovered through the exercise of due
                                                            If we look beyond the words of the
diligence.” But that is not what subsection
                                                    statute, as we believe we must in this case,
(D) says.
                                                    we see two strong reasons for concluding
        Although neither Fielder nor the            that the statute of limitations set out in §
Walker Court explains the ground for their          2244(d)(1) should be applied on a claim-
implicit conclusion that subsection (D)             by-claim basis.
requires a court to pick the latest date
                                                                           A.
when the factual predicate of a claim was
reasonably discoverable, it is possible that                First, this is the way that statutes of
their analysis is based on the statement in         limitations are generally applied, and there
§ 2244(d)(1) that the application runs from         is no reason to suppose that Congress
“the latest of” the four dates specified in         intended to make a radical departure from
subsections (A) through (D). However,               this approach in § 2244(d)(1). In both
this reference to “the latest” date does not        civil and criminal cases, statutes of
appear in subsection (D) and it does not            limitations are applied on a claim-by-claim
pertain to the issue at hand. The reference         or count-by-count basis. When a statute of
to “the latest” date in § 2244(d)(1) tells a        limitations defense is raised in a case with
court how to choose from among the four             a multi-claim civil complaint or a multi-
dates specified in subsections (A) through          count criminal indictment, the court
(D) once those dates are identified. This           determines the date on which the statute
language does not tell a court how to               began to run for each of the claims or
identify the date specified in subsection           counts at issue, not just the latest date on
(D) in a case in which the application              which the statute began to run for any of
contains multiple claims. Accordingly,              the claims or counts. See, e.g., King v.
there is nothing in § 2244(d) that suggests         Otasco, Inc., 861 F.2d 438, 441 (5th Cir.
that a court should follow the Walker               1988) (“When a suit alleges several
interpretation and select the latest date on        distinct causes of action, even if they arise
which the factual predicate of any claim            from a single event, the applicable
presented in a multi-claim application              limitations period must be determined by
could have reasonably been discovered. It           analyzing each cause of ac tion
would be just as consistent with the                separately.”); Home Indem. Co. v. Ball-Co
statutory language to pick the earliest date.       Contractors, Inc., 819 F.2d 1053, 1054
                                                    (11th Cir. 1987) (holding that the District
       For these reasons, we believe that
                                                    Court had erred in dismissing the
the Walker interpretation fails on its own
                                                    appellant’s separate but related claim on
terms. It purports to be based on the
                                                    statute of limitations grounds because it
language of § 2244(d)(1) but actually
                                                    was in fact governed by a different statute
neglects to pay close attention to the
                                                    of limitations); Barnebey v. E.F. Hutton &
statutory language.

                                                7
Co., 715 F. Supp. 1512, 1525 (M.D. Fla.            § 2244(d)(1) forecloses a claim-by-claim
1989) (establishing different statute of           approach because it refers to the period
limitations for the different civil claims         within which “an application,” rather than
against the defendant); Weeks v.                   a “claim,” must be filed. But there is
Remington Arms Co., 733 F.2d 1485,                 nothing unusual about the wording of §
1486 (11th Cir. 1984) (affirming the               2244(d)(1). It is common for statute of
District Court’s dism issal of the                 limitations provisions to be framed using
appellant’s strict liability claims but            the model of a single-claim case. For
reversing the District Court’s directed            example, the general statute of limitations
verdict on the appellant’s negligence              for federal claims, 28 U.S.C. § 1658,
claims); Contract Buyers League v. F & F           prescribes the date by which “a civil
Inv., 300 F. Supp. 210, 221 (N.D. Ill.             action” must be commenced.            State
1969) (applying antitrust statute of               statutes often use similar wording. The
limitations to the antitrust counts but            New Jersey statutes speak of the time
determining what limitation applied to the         within “an action of law” must be
other Civil Rights counts); United States v.       commenced. N.J.S.A. § 2A:14-1 et seq.
Spector, 1994 U.S. Dist. LEXIS 12500,              The Pennsylvania statutes generally refer
1994 WL 470554 (D.N.H. Aug. 31, 1994)              to the time within which an “action” or
(dismissing several counts of a multiple-          “proceeding” must be begun. See 42 Pa.
count indictment as time-barred but                Cons. Stat. Ann. §§ 5501, 5522 et seq.
sustaining other counts of the indictment);               Although these provisions are
People v. Kelly, 299 Ill. App. 3d 222, 225         framed on the model of the one-claim
(Ill. App. Ct. 1998) (describing the seven-        complaint, it is understood that they must
count information under which the                  be applied separately to each claim when
defendant was charged and the fact that            more than one is asserted. To take 28
the defendant’s motion to dismiss three            U.S.C. § 1658 as an example, one could
counts because they charged crimes whose           say of the wording of that provision
statutes of limitations had run was                precisely what the Walker Court said of
granted); State v. Stansberry, 2001 Ohio           the wording of 28 U.S.C. § 2244(d)(1):
App. LEXIS 3014, 2001 WL 755898
(Ohio Ct. App. July 5, 2001) (denying                     The statute directs the court
defendant’s argument that his felony                      to look at whether the [“civil
murder conviction should have been                        action”] is timely, not
barred by the statute of limitations because              wh ether the individual
the underlying felony, aggravated robbery,                “claims” within the
was time-barred).                                         [complaint] are timely. The
                                                          statute provides a single
                                                          statute of limitations, with a
      The Walker interpreta tion,                         single filing date, to be
recounted above, holds that the wording of                applied to the [“civil


                                               8
       action”] as a whole.                         retroactively applicable constitutional
Walker, 341 F.3d at 1243 (bracketed                 right regarding the conduct of police
material added). Yet no one, we assume,             interrogations, and it appears that this
would argue that, in a civil case with              right might have been violated in Doe’s
multiple federal claims, the statute of             case.      Doe unsuccessfully pursues
limitations must begin on the same date for         collateral review in state court, but he does
every claim. Rather, each claim must be             not file a federal habeas petition, and
analyzed separately. We believe that §              another five years pass. At this point, ten
2244(d)(1) was not intended to be applied           years after the conclusion of the direct
in a similar fashion.                               review process, both the self-incrimination
                                                    and unlawful interrogation claims are
                      B.                            time-barred by 28 U.S.C. § 2244(d)(1).
       Second, we believe that a claim-by-          Suppose, however, that a short time later
claim approach is necessary in order to             Doe discovers the factual predicate for an
avoid results that we are confident                 entirely different federal constitutional
Congress did not want to produce.                   issue, namely, that the prosecution may
Specifically, the Walker interpretation has         have violated Brady v. Maryland, 373 U.S.
the strange effect of permitting a late-            83 (1963), because it had in its possession
accruing federal habeas claim to open the           at the time of trial, but did not disclose,
door for the assertion of other claims that         certain arguably exculpatory evidence.
had become time-barred years earlier.               Doe promptly attempts to exhaust state
        An example illustrates this point.          remedies with respect to this new claim,
Suppose that on direct appeal a criminal            and as soon as those efforts prove
defendant in a state case (Doe) raises only         unfruitful, he files a federal habeas
one federal constitutional claim, say, that         petition asserting both the Brady claim and
his Fifth Amendment right to be free from           the previously barred self-incrimination
compelled self-incrimination was violated           and unlawful interrogation claims. Under
when the prosecutor made statements in              the Walker interpretation of 28 U.S.C. §
summation that Doe interprets as                    2244(d)(1), the one-year statute begins to
commenting on his failure to take the               run on the date of the discovery of the
stand. Doe is unsuccessful on direct                factual predicate of the Brady claim, and
appeal and chooses not to pursue state              the fo rmerly barred claims are
collateral relief. Doe then has one year            miraculously revived.
from the conclusion of direct review to                    We cannot think of any reason why
file a federal habeas petition asserting this       Congress would have wanted to produce
claim, but he elects not to file a federal          such a result. It makes sense to give Doe
habeas petition, and five years pass. At            time to petition for habeas review of the
the end of that five-year period, the               new Brady claim, but why should he be
Supreme Court of the United States hands            allowed to raise the self-incrimination
down a decision that recognizes a new,              claim, which had been time-barred for the

                                                9
past nine years? Why should he be
permitted to raise the unlawful
interrogation claim, which had been time-            in effect, the prisoner certainly should not
barred for the past four years? Why                  wait before filing a petition raising the
should the late discovery of the Brady               direct review claims. Without knowing
claim revive these unrelated, previously             that he should subsequently have a ground
barred claims? Neither Fielder nor the               for the late accruing claim, he will file a
Walker Court has explained why Congress              petition raising the direct review claims
might have wanted to produce such                    before the end of the one-year period and
results, and we cannot think of any                  should later file a second petition under 28
plausible explanation.3                              U.S.C. § 2244(b)(2) raising the late
                                                     accruing claim.
                                                             In the second situation, the prisoner
       3
        A treatise argues that the Walker            learns that he has a basis for the late
interpretation of 28 U.S.C. § 2244(d)(1)             accruing claim during the one-year period
avoids unwarranted “piecemeal” habeas                after the end of direct review, and he also
litigation, 1 RANDY HERTZ & JAMES S.                 begins a state collateral proceeding raising
LIEBMAN, FEDERAL HABEAS CORPUS                       the late accruing claim during this period.
PRACTICE AND PROCEDURE § 5.2b at 266-                In this situation, the prisoner’s options will
67 & n.70 (4th ed. 2001), but we find this           be the same no matter whether our
argument unconvincing because the                    interpretation or the Walker interpretation
circumstances in which the Walker                    of § 2244(d)(1) is in effect. In either
interpretation would lead to fewer                   event, the prisoner will have two choices.
successive petitions are quite limited.              He will be able to file an initial federal
        The category of cases that must be           petition raising the direct review claims
considered are those in which a state                and then seek to file a second petition
prisoner exhausts some federal claims on             raising the late accruing claim under 28
direct review (“the direct review claims”)           U.S.C. § 2244(b)(2). He will also have the
and discovers another federal claim (“the            option of waiting until the end of the state
late accruing claim”) that cannot be raised          collateral proceeding (which tolls the time
on direct review and that falls within §             for filing a federal petition raising the
2244(d)(1)(C) or (D). Within this category           direct review claims) and then filing a
of cases, there are three           relevant         single petition raising both the direct
subcategories.                                       review claims and the late accruing claim.
        In the first, the prisoner does not
learn that he has any basis for asserting the                In the third situation, the prisoner
late accruing claim until more than one              learns that he has a basis for the late
year after the conclusion of direct review.          accruing claim during the one-year period
In this situation, no matter which                   after the end of direct review but he does
interpretation of 28 U.S.C. § 2244(d)(1) is          not begin a state collateral proceeding

                                                10
                      C.                              That interpretation of § 2244(d)(2)
        In support of his interpretation of           obviously does not require us in this case
28 U.S.C. § 2244(d )(1), Fielder                      to adopt the Walker interpretation of 28
understandably relies on language in                  U.S.C. § 2244(d)(1).
Sweger v. Chesney, 294 F.3d 506 (3d Cir.                     Nor is there any logical
2002), but we are not persuaded by this               inconsistency between the holding in
argument. We note, first, that Sweger did             Sweger and our holding here. The heart of
not concern the issue presented here.                 our reasoning in Sweger was as follows:
Sweger did not decide when the habeas                        Section 2244(d)(2) states,
statute of limitations begins to run under                   “the time during which a
28 U.S.C. § 2244(d)(1). Instead, Sweger                      properly filed application
concerned the interpretation of 28 U.S.C.                    for State post-conviction or
§ 2244(d)(2), which provides for the                         other collateral review with
tolling of the statute of limitations while a                respect to the pertinent
state post-conviction proceeding is                          judgment or claim is
pending. The question in Sweger was                          pending shall not be counted
whether under § 2244(d)(2) a state                           toward any period of
proceeding tolls the statute with respect to                 l i m i ta t i o n u n d e r t h i s
just the claims at issue in the state                        subsection.” 28 U.S.C. §
proceeding or with respect to all the claims                 2244(d)(2) (emphasis
included in a subsequently filed federal                     added).            Reading this
petition. We held that the statute is tolled                 language to require that the
for all of the claims in the federal petition.               state post-conv iction
                                                             proceeding raise the claims
                                                             contained in the habeas
during this period. In this situation, the                   petition ignores the use of
choice between the Walker interpretation                     the word “judgment” in the
and ours would make a difference, but we                     statute.          See Carter [v.
believe that very few cases will fall into                   Litscher, 275 F.3d 663, 665
this category. As a result, we do not think                  (7th Cir. 2001)] (“Austin [v.
that our interpretation will lead to any                     Mitchell, 200 F.3d 391 (6th
significant increase in the number of                        Cir. 1999)] reads the word
successive federal habeas applications. In                   ‘ju dgm ent’ out o f §
addition, the mild impact on judicial                        2244(d)(2) and tolls the time
economy of a few successive federal                          only while a particular
habeas applications would be far less than                   ‘claim’ . . . is before the
the impact on state courts of a rule that                    state court. That is just not
allows all claims of error to be resuscitated                what the statute says. Any
through the happenstance of reviving a                       properly filed collateral
single claim under Subsection (c) or (d).

                                                 11
       challenge to the judgment                Fielder filed his federal petition long after
       tolls the time to seek federal           the date specified under subsection (A).
       c o l l at e r a l rev iew .”)           Accordingly, Fielder’s claim of
       (emphasis in original).                  prosecutorial conduct is time-barred, and
294 F.3d at 516-17 (bracketed material          it was properly dismissed by the District
added ).       We thus relied on a              Court.
straightforward applic ation o f the                  By contrast, Fielder’s after-
particular language of 28 U.S.C. §              discovered evidence claim is timely under
2244(d)(2), and there is no tension             § 2244(d)(1)(D). Nevertheless, we can
b e tw e e n t h i s an a l ys i s a n d o ur   affirm the decision of the District Court on
interpretation in this case of 28 U.S.C. §      the alternative ground that this claim is not
2244(d)(1).                                     cognizable under the federal habeas statute
       As Fielder stresses, however, our        because it rests on state, rather than
opinion in Sweger does contain statements       federal, law. It has long been recognized
 concerning 28 U.S.C. § 2244(d)(1) that         that “[c]laims of actual innocence based on
support his position here. In particular,       newly discovered evidence” are never
Sweger stated that the 28 U.S.C. §              grounds for “federal habeas relief absent
2244(d)(1) must be applied to a habeas          an independent constitutional violation.”
petition as a whole and not on a claim-by-      Herrera v. Collins, 506 U.S. 390, 400
claim basis. 294 F.3d at 514-15, 517. The       (1993).      Therefore, Fielder’s after-
Sweger Court used this interpretation of 28     discovered evidence claim was properly
U.S.C. § 2244(d)(1) as non-claim-specific       dismissed by the District Court.
to bolster its interpretation of 28 U.S.C. §                        IV.
2244(d)(2) as likewise non-claim-specific.             For the reasons set out above, we
Because these statements were dicta,            affirm the District Court’s order.
however, they do not bind us, and for the
reasons explained above, we conclude that
28 U.S.C. § 2244(d)(1), like other statute
of limitations provisions, must be applied
on a claim-by-claim basis.
                     V.
      Applying our interpretation of §
2244(d)(1) to the present case, it is clear
that Fielder’s prosecutorial misconduct
claim was not filed on time. Subsection
(D) does not save this claim because the
factual basis for the prosecutorial
misconduct claim was known many years
earlier. Thus, subsection (A) governs.
Even with tolling, there is no dispute that
