                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

STEVEN W. COLLIER,                       No. 04-15017
            Petitioner-Appellant,           D.C. No.
              v.                       CV-99-00641-ECR/
BOB BAYER,                                    RAM
            Respondent-Appellee.
                                           OPINION

       Appeal from the United States District Court
                for the District of Nevada
        Edward C. Reed, District Judge, Presiding

                Argued and Submitted
      November 4, 2004—San Francisco, California

                   Filed June 3, 2005

     Before: Betty B. Fletcher, Sidney R. Thomas, and
              Carlos T. Bea, Circuit Judges.

              Opinion by Judge B. Fletcher
                 Dissent by Judge Bea




                          6215
                  COLLIER v. BAYER            6217


                    COUNSEL

Franny A. Forsman and John C. Lambrose, Las Vegas,
Nevada, for the petitioner-appellant.
6218                   COLLIER v. BAYER
Brian Sandoval and Robert E. Wieland, Reno, Nevada, for the
respondent-appellee.


                          OPINION

B. FLETCHER, Circuit Judge:

   Petitioner-Appellant Stephen Wayne Collier appeals from
the decision of the United States District Court for the District
of Nevada, which denied his petition for a writ of habeas cor-
pus under 28 U.S.C. § 2254. The district court denied Col-
lier’s habeas petition for failing to comply with the State of
Nevada’s time limits for pursuing habeas relief. Collier chal-
lenges the adequacy of Nevada’s time limit for filing habeas
corpus appeals and the tolling provisions provided therein.
Further, he argues cause and prejudice to excuse his purported
procedural default.

   We have jurisdiction pursuant to 28 U.S.C. § 2253. We
reverse the district court’s decision and hold that the particu-
lar application of Nevada’s time limits and tolling provisions
in Collier’s case was not adequately established prior to his
appeal. Because we reverse on this ground, we do not reach
the question of whether Collier had cause or suffered preju-
dice.

                     Standard of Review

   Federal district court decisions denying 28 U.S.C. § 2254
habeas petitions for procedural default are reviewed de novo.
Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997).
Factual findings underlying the decision are reviewed for
clear error. Luna v. Cambra, 306 F.3d 954, 959 (9th Cir.
2002). Mixed questions of law and fact involving constitu-
tional issues are reviewed de novo. Tomlin v. Myers, 30 F.3d
1235, 1241 (9th Cir. 1994).
                             COLLIER v. BAYER                            6219
                         Factual Background

   Collier pursues this habeas appeal from a judgment based
on a plea and sentence of forty-five years for trafficking in
controlled substances. Collier and co-defendant, Christopher
Glen Hammond, pled guilty to selling methamphetamine to a
government informant, Gary McConnell. Collier and Ham-
mond sold drugs to McConnell on March 12, 1994, while
McConnell was working with Nevada’s Consolidated Narcot-
ics Unit (“CNU”). McConnell worked with the CNU as part
of a plea bargain for trafficking charges pending against him.
During the transaction Collier gave drugs to Hammond, who
then gave them to McConnell. McConnell paid for the drugs
with money given him by the CNU. McConnell testified
against Collier and Hammond at their preliminary hearing on
June 9, 1994.

   Collier faced a several count information. He was able to
negotiate a plea bargain. He pled guilty to one count of drug
trafficking and he agreed to a forty-five-year prison sentence.
The additional charges against Collier were dropped. Collier’s
co-defendant pled guilty to a similar charge and he agreed to
a ten-year prison sentence.

   Five days before Collier was sentenced, a new Nevada law
went into effect reducing the minimum and maximum prison
sentences for several criminal offenses. The sentence for the
offense to which Collier pled guilty was dramatically reduced.
The minimum was reduced from ten years to two years. The
maximum was reduced from life to fifteen years.1 This statute
  1
    The amended statute says: “[I]f the quantity involved . . . [i]s 14 grams
or more, but less than 28 grams, for a category B felony by imprisonment
in the state prison for a minimum term of not less than 2 years and a maxi-
mum term of not more than 15 years and by a fine of not more than
$100,000.” Nev. Rev. Stat. 453.3385(2) (1995).
   Previously, the statute read: “If the quantity involved . . . is 14 grams
or more, but less than 28 grams, by imprisonment in the state prison for
life or for a definite term of not less than 10 years and by a fine of not less
than $100,000.” Nev. Rev. Stat. Ann. 453.3385(2) (Michie 1993).
6220                      COLLIER v. BAYER
went into effect July 1, 1995. The revised statute does not
apply to any offense committed before the effective date.
1995 Nev. Stat. ch. 443 § 393. Attempts by Collier to chal-
lenge his sentence based on the amended statute have failed.

   Collier was originally represented by attorney Sferrazza.
Sferrazza withdrew as counsel in early 1995 because he took
a job in the public sector. The court appointed the county pub-
lic defender’s office to represent Collier. Three different attor-
neys from the public defender’s office represented Collier
during his preliminary hearing, plea negotiations, and sen-
tencing. The final attorney to represent Collier was attorney
Mitchell. Mitchell appeared with Collier at his July 5, 1995
sentencing. Mitchell had previously represented McConnell,
the government’s informant, and had helped McConnell nego-
tiate a plea against several drug trafficking charges in early
1994. As part of the plea bargain, McConnell pled guilty to
one count of drug trafficking. The plea resulted in several
charges being dropped and the suspension of a five year
prison sentence and $50,000 fine. McConnell was placed on
probation for three years. The transcript of the sentencing pro-
ceedings is sealed. Shortly after accepting this plea deal,
McConnell was involved with the CNU operation that
resulted in Collier’s arrest.

                        Procedural History

A.     Proceedings in state court

  Collier did not file an immediate direct appeal after entry
of the final judgment against him. He did, however, file a
motion to correct an illegal sentence on March 21, 1997 under
Nev. Rev. Stat. 176.555 (2004).2 He challenged his judgment
  2
   In Nevada motions to correct an illegal sentence are a post-conviction
remedy available to correct a facially illegal sentence. See Pangallo v.
State, 930 P.2d 100, 102 n.2 (Nev. 1996); Edwards v. State, 918 P.2d 321,
323-24 (Nev. 1996). Motions to correct an illegal sentence (and similar
                            COLLIER v. BAYER                            6221
of conviction for failing to list the statute under which he was
sentenced and he challenged his sentence as exceeding the
maximum statutory limit for convictions under Nevada’s
revised sentencing statute, Nev. Rev. Stat. 453.3385(2). The
Nevada state district court issued an amended judgment of
conviction, listing the proper statute, on March 26, 1997. The
amended judgment did not change the sentence. A few
months later, Collier filed a second motion to correct an ille-
gal sentence reviving the challenge to his sentence as exceed-
ing the maximum statutory limit. The state district court
considered the merits of this motion and held the amended
law did not apply to Collier. He appealed. Two years later, the
Nevada Supreme Court denied Collier’s appeal on the merits,
affirming the state district court.3 The remittitur issued on
June 9, 1999.

   After the Nevada Supreme Court denied Collier’s motion
but before the remittitur issued, he filed a state habeas petition
on May 28, 1999. The state district court dismissed the habeas
petition as untimely, saying the petition violated the one-year
time limit for filing habeas appeals. See Nev. Rev. Stat.
34.726(1). Collier appealed to the Nevada Supreme Court.
The Nevada Supreme Court affirmed.

appeals) occur after a conviction and sentencing but they are not collateral
attacks. Passanisi v. State, 831 P.2d 1371, 1373 (Nev. 1992).
   Motions to correct an illegal sentence are not subject to the time bars
and procedural hurdles limiting other types of appeals. The Nevada
Supreme Court said, “Because of the very nature of the remedy sought in
a motion for relief from a sentence that is either facially illegal or is the
result of a mistaken assumption regarding a criminal defendant’s record,
time constraints and procedural defaults necessarily do not apply.”
Edwards, 918 P.2d at 324. Collier’s motions to correct an illegal sentence
were properly filed and were considered on the merits by the Nevada state
courts.
   3
     During this same time, Collier filed a belated direct appeal. This appeal
was dismissed by the Nevada Supreme Court for lack of jurisdiction due
to timeliness.
6222                    COLLIER v. BAYER
B.     Proceedings in federal court

   Collier filed a federal habeas petition in the Nevada federal
district court on June 30, 2000. The district court dismissed
the petition as mixed (including both exhausted and unex-
hausted claims), but gave Collier an opportunity to amend his
petition. He abandoned the unexhausted claims and pursued
only those claims the district court deemed exhausted. The
district court denied Collier’s habeas petition as barred by
Nevada’s procedural rule that habeas petitions must be filed
within one year of the judgment of conviction or within one
year of the Nevada Supreme Court’s remittitur from an appeal
from judgment. See Nev. Rev. Stat. 34.726(1). The district
court found Nevada’s rule was adequate and independent and
that Collier failed to show cause and prejudice for the default.
Collier then petitioned for and received a certificate of
appealability. The district court found Collier had “raised a
valid showing of the denial of a constitutional right” for inef-
fective assistance of counsel. The district court also found the
adequacy of Nevada’s procedural rule “could be debatable
among jurists of reason.”

                            Analysis

   The State of Nevada requires habeas petitions to be filed
within one year of the state supreme court’s remittitur in an
appeal taken from judgment. Nev. Rev. Stat. 34.726(1). In
this case, the trial court amended Collier’s final judgment on
March 26, 1997. After the amendment, Collier continued to
pursue relief through a properly filed motion to correct an ille-
gal sentence. The motion was denied and Collier appealed to
the Nevada Supreme Court. The Nevada Supreme Court
denied Collier’s appeal on the merits on May 13, 1999. Imme-
diately thereafter, on May 28, 1999, Collier filed a state
habeas petition. The remittitur from the Nevada Supreme
Court’s order issued on June 9, 1999.
                           COLLIER v. BAYER                           6223
   On the face of Nevada’s statute limiting the time to file for
habeas corpus relief, Collier’s state habeas petition conforms
with the state’s one year time limit. See Nev. Rev. Stat.
34.726(1). Collier filed his habeas petition within one year of
the state supreme court’s remittitur on his appeal. The Nevada
Supreme Court, however, interpreted the law differently in
Collier’s case. The Nevada Supreme Court said Collier’s state
habeas petition was not timely filed under Nev. Rev. Stat.
34.726(1), thus denying Collier’s habeas petition on state pro-
cedural grounds.4 Collier argues this procedural rule was not
adequately established prior to his appeal. He argues the rule
cannot bar his pursuit of federal habeas relief. The Respon-
dent disagrees.

   We conclude that the rule was not adequately established
prior to Collier’s appeal. We find nothing in either the plain
language of Nev. Rev. Stat. 34.726 or the Nevada courts’
interpretation of that statute to suggest that an amended judg-
ment would not entitle Collier to a new one year time period
to pursue habeas relief. Furthermore, there is no established
rule that motions to correct an illegal sentence do not qualify
as an appeal from judgment, thus tolling the period for filing
a habeas petition.

A.    Adequate and independent state grounds

   For a state procedural rule to prevent federal review of fed-
eral claims, the state’s rule must be both adequate and inde-
pendent. Coleman v. Thompson, 501 U.S. 722, 729 (1991).
The Supreme Court has held in the habeas context that “this
Court will not review a question of federal law decided by a
  4
    Federal courts of appeal may not review state courts’ interpretations of
state law. The Supreme Court said, “[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law ques-
tions. In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, we
defer to the state court’s interpretation of state law.
6224                       COLLIER v. BAYER
state court if the decision of that court rests on a state law
ground that is independent of the federal question and ade-
quate to support the judgment.” Id. The Court explained, “The
doctrine applies to bar federal habeas when a state court
declined to address a prisoner’s federal claims because the
prisoner had failed to meet a state procedural requirement.”
Id. at 729-30.

   [1] In order for a state procedural rule to preclude federal
review, the rule must be “firmly established and regularly fol-
lowed.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991). The
Ninth Circuit has elaborated that “a state rule must be clear,
consistently applied, and well-established at the time of the
petitioner’s purported default.” Calderon v. United States Dis-
trict Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quot-
ing Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)).5 If
a state procedural rule is not well-established before a peti-
tioner supposedly breaks the rule, then the rule cannot prevent
federal review of the petitioner’s federal claims. Although the
state is not required “to articulate every permutation of every
rule,” Bargas v. Burns, 179 F.3d 1207, 1213 (9th Cir. 1999),
a rule held generally adequate can be deemed inadequate as
applied to particular unique circumstances, Lee v. Kemna, 534
U.S. 362, 376 (2002). Once a petitioner has demonstrated the
inadequacy of a rule, the state bears the ultimate burden of
  5
    The dissent argues that the petitioner must cite cases in which a proce-
dural bar is applied inconsistently. Dissent at 6245. Inconsistency is only
one aspect of the principle that a state’s procedural bar must be adequate.
This court has repeatedly said the state’s rule must be clear, consistently
applied, and well-established. See e.g., Robinson v. Ignacio, 360 F.3d
1044, 1052 (9th Cir. 2004); Melendez v. Warden, 288 F.3d 1120, 1122
(9th Cir. 2002); Jackson v. Calderon, 211 F.3d 1148, 1153 (9th Cir. 2000).
The emphasis in the case before us is whether the rule was well-
established. We, obviously, do not require a habeas petitioner to show
inconsistency in application when the problem with the rule is that the rule
is not clear or well-established and has never been applied to the unique
circumstances of his case.
                             COLLIER v. BAYER                          6225
proving the rule bars federal review. Bennett v. Mueller, 322
F.3d 573, 585-86 (9th Cir. 2003).6

   This standard for determining the adequacy of state proce-
dural bars is well-established in federal habeas law. The dis-
sent accuses the majority of creating “a radical new rule of
law which shifts the burden of proof from the prisoner to the
State.” Dissent at 6233-34. The dissent confuses a disagree-
ment over the interpretation of Nevada state law with a con-
flict over the federal habeas standard. In this opinion we hold
that Collier met his burden by establishing that no state rule
was adequately established to bar his state habeas petition.
Only then do we shift the burden to the state, as the standard
demands. This is merely an application of the federal habeas
standard as it stands today. This holding makes no new
habeas law.

  State procedural rules must also be independent to preclude
federal review. As Collier challenges only the adequacy of
Nevada’s procedural rule, not its independence, we do not
address the independence prong.

   The Nevada procedural rule at issue is a one-year time limit
for filing a habeas corpus petition. The relevant law states:
  6
   The Ninth Circuit explained the state’s burden for proving the ade-
quacy of a state rule, saying:
      Once the state has adequately pled the existence of an indepen-
      dent and adequate state procedural ground as an affirmative
      defense, the burden to place that defense in issue shifts to the
      petitioner. The petitioner may satisfy this burden by asserting
      specific factual allegations that demonstrate the inadequacy of the
      state procedure, including citation to authority demonstrating
      inconsistent application of the rule. Once having done so, how-
      ever, the ultimate burden is the state’s.
Powell v. Lambert, 357 F.3d 871, 875 (9th Cir. 2004) (quoting Bennett v.
Mueller, 322 F.3d 573, 586 (9th Cir. 2003).
6226                   COLLIER v. BAYER
     Unless there is good cause shown for delay, a peti-
     tion that challenges the validity of a judgment of
     sentence must be filed within 1 year after entry of
     the judgment of conviction or, if an appeal has been
     taken from the judgment, within 1 year after the
     supreme court issues its remittitur. For the purposes
     of his subsection, good cause for delay exists if the
     petitioner demonstrates to the satisfaction of the
     court:

          (a) That the delay is not the fault of the
          petitioner; and

          (b) That dismissal of the petition as
          untimely will unduly prejudice the peti-
          tioner.

Nev. Rev. Stat. 34.726(1). This court previously found that
the Nevada Supreme Court generally applies this time limit
consistently to habeas petitions. See, e.g., Loveland v.
Hatcher, 231 F.3d 640, 643 (9th Cir. 2000); Moran v.
McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996). The ade-
quacy of this general time bar, however, is not at issue here.
The issues for review are specific to the application of this
rule in Collier’s case. First, was it clear and well-established
in Nevada law that the original judgment, not the amended
judgment of conviction starts the one-year time limit? Second,
was it clear and well-established in Nevada law that a motion
to correct an illegal sentence does not toll the one-year time
limit?

B.     Amended judgments

    [2] The plain language of Nev. Rev. Stat. 34.726(1) does
not distinguish between original judgments of conviction and
amended judgments of conviction. Until recently, there was
little in Nevada statutory or case law to offer guidance on this
                            COLLIER v. BAYER                            6227
issue.7 Then, on September 3, 2004, the Nevada Supreme
Court published an opinion holding that amended judgments
of conviction do not automatically re-start the time clock
under Nev. Rev. Stat. 34.726(1). Sullivan v. Nevada, 96 P.3d
761, 764 (Nev. 2004). Instead, an amended judgment of con-
viction may, if proved, qualify as “good cause” under Nev.
Rev. Stat. § 34.726(1)(a), thus allowing for additional
appeals. Id. The Nevada Supreme Court said:

      We emphasize, however, that the entry of an
      amended judgment may in and of itself provide the
      good cause required by that statute to present appro-
      priate post-conviction claims relating to the amend-
      ment at issue. In other words, if the claims presented
      in a petition filed within one year of the entry of the
      amended judgment challenge the proceedings lead-
      ing to a substantive amendment of the judgment and
      could not have been raised in prior proceedings,
      there may be no delay attributable to the “fault of the
      petitioner.”
  7
    In 1888, the Nevada Supreme Court denied a motion for a new trial in
a civil case where the trial court’s clerk had entered the wrong name on
the judgment. Burbank v. Rivers, 18 P. 753 (Nev. 1888). The Nevada
Supreme Court found the clerical error did not extend the time for filing
an appeal. Id. at 755. The court said that to prevail on such a basis, the
petitioner must “affirmatively show, to the satisfaction of this court, that
he was deceived or misled by the entry as made.” Id. Burbank is not
instructive in the case before us. First, the amendment to Collier’s judg-
ment was not a clerical error. The trial court failed to include the basis for
the judgment: the statute under which Collier was sentenced. Second, the
Burbank case is not cited by the state courts as grounds for the state
courts’ opinions in this case. The Burbank rule (if such a rule exists) is not
at issue here. Finally, the Burbank case has not been cited by a Nevada
state court since 1921. See Bottini v. Mongolo, 197 P. 702, 704 (Nev.
1921). Nowhere is it cited in the State’s briefing materials. The dissent’s
shaking the dust off a century old rule, not used by the state courts in
eighty years, does not establish the rule as adequate under federal habeas
law. We do not reject the rule because it is old, we reject it because it is
not well-established.
6228                    COLLIER v. BAYER
Id. As Sullivan was decided only recently, such a rule cannot
be held clearly and well-established at the time Collier filed
his motion to correct an illegal sentence in 1997. Notably, the
Nevada Supreme Court does not cite a single statute, rule, or
case standing for the proposition that amended judgments of
conviction do not automatically re-start the one-year time
clock under Nev. Rev. Stat. 34.726(1). The two cases noted
in the discussion, Dickerson v. State, 967 P.2d 1132 (Nev.
1998) and Pelligrini v. State, 34 P.3d 519 (Nev. 2001), are
cited only to illustrate the legislature’s general intent in enact-
ing Nev. Rev. Stat. 34.726(1). Sullivan, 96 P.3d at 764 nn.7
& 10-11. There is scant evidence that amended judgments of
conviction did not re-start the one-year clock at the time of
Collier’s default.

   [3] The dissent would give substantial weight to Morrell v.
Edwards, 640 P.2d 1322 (Nev. 1982). In that case, the
Nevada Supreme Court created a rule governing when the
time for an appeal in the civil context may start anew after an
amended judgment. The court stated that whether “an appeal
is properly taken from an amended judgment rather than the
judgment originally entered depends upon whether the
amendment disturbed or revised legal rights and obligations
which the prior judgment had plainly and properly settled
with finality.” Id. at 1324. The Nevada Supreme Court has
never applied this standard in a criminal case. The standard
for criminal cases, as established in 2004, is whether the
issues presented in the appeal relate to a substantive change
in the amended judgment. Sullivan, 96 P.3d at 764. Rules for
civil appeals do not dictate procedure for criminal habeas
appeals. The Nevada Supreme Court has specifically said,
“this court has consistently and repeatedly held that rules of
civil appellate procedure are not applicable to appeals from
statutory post-conviction habeas corpus proceedings.” Klein v.
Warden, 43 P.3d 1029, 1033 (Nev. 2002). The rule establish-
ing when amended judgments allow a new period to file
habeas appeals was decided by the Nevada Supreme Court’s
                            COLLIER v. BAYER                           6229
holding in Sullivan in 2004.8 Because this rule was not ade-
quately established, if at all, prior to 2004, it cannot bar fed-
eral habeas review in Collier’s case.9

C.    Motions to correct an illegal sentence

   [4] The second procedural rule at issue is whether a motion
to correct an illegal sentence tolls the one-year clock under
Nev. Rev. Stat. 34.726(1). The question is whether a motion
to correct an illegal sentence is an “appeal . . . from the judg-
ment” as stated in Nev. Rev. Stat. 34.726(1). Collier’s
motions to correct an illegal sentence were properly filed
under Nevada state law. The state district court considered
Collier’s first motion and amended his judgment of convic-
tion. Both the Nevada district court and the Nevada Supreme
Court considered his second motion and denied it on the mer-
its. Collier filed his federal habeas petition after the Nevada
Supreme Court’s remittitur on his state habeas petition. When
Collier filed his motion to correct an illegal sentence, there
was little in Nevada’s state law to guide the courts’ under-
standing of whether these motions are an appeal from judg-
ment, thus tolling the period for filing a habeas petition under
Nev. Rev. Stat. 34.726(1). Then, after Collier filed his motion
to correct an illegal sentence, the Nevada Supreme Court gave
  8
     The first footnote of the Nevada Supreme Court’s opinion states that
the court had previously disposed of the case in an unpublished disposition
on March 5, 2004. The government then filed a motion seeking publica-
tion of the decision. “Cause appearing, [the Court granted] the State’s
motion to publish.” Sullivan, 96 P.3d at 762 n.1. The cause for publication
is not mentioned. Given the lack of guidance on this issue in prior opin-
ions, the need for publication is consistent with the need to establish the
rule.
   9
     The dissent suggests that because Collier cannot show cases illustrating
an inconsistent application of such a rule Collier’s claim fails. Dissent at
6244-45. The dissent completely ignores the well-established prong of the
standard for determining adequacy. See supra at 6239-40. Collier has
shown this state procedural rule did not exist prior to 2004 and the govern-
ment has failed its burden to show it was adequately established.
6230                        COLLIER v. BAYER
form to these words in Dickerson v. State, 967 P.2d at 1133-
34. There the court held only timely direct appeals qualified
as appeals tolling the one-year time limit.10 Id. The Court
held:

       We now construe [Nev. Rev. Stat.] 34.726(1) to
       mean that the one-year period for filing a post-
       conviction habeas corpus petition begins to run from
       the issuance of the remittitur from a timely direct
       appeal to this court from the judgment of conviction
       or from the entry of the judgment of conviction if no
       direct appeal is taken. A timely direct appeal is one
       in which the notice of appeal is filed with the district
       court within the time period prescribed by statute.

Id. Dickerson was decided in 1998 and Collier filed his
motion to correct an illegal sentence in 1997.11 Collier cannot
be held accountable for rules established after his purported
breach. See Ford v. Georgia, 498 U.S. 411, 424 (1991);
Petrocelli v. Angelone, 248 F.3d 877, 885 (9th Cir. 2001).

   The government concedes it was in Dickerson where the
tolling provisions in Nev. Rev. Stat. 34.726(1) were narrowed
to apply only to a “timely direct appeal.” Dickerson, 967 P.2d
  10
      Because the Dickerson case was decided after Collier filed his motion
to correct an illegal sentence, it is not determinative in this case. Thus we
need not explore whether under Nevada state law motions to correct an
illegal sentence are direct appeals.
   11
      The dissent relies heavily on Dickerson, 967 P.2d 1132, and the
NRAP 4(b). Dissent at 6251-53. Neither is controlling here. Dickerson
was decided after Collier’s purported breach. NRAP 4(b) established toll-
ing mechanisms for direct appeals, not habeas appeals. It is inapplicable
to the question of whether a motion to correct an illegal sentence tolls the
time period for filing a habeas appeal. Furthermore, NRAP 4(b) does not
govern motions to correct an illegal sentence. Such motions, as the
Respondent and the dissent concede, need not be filed within thirty days
of judgment as NRAP 4(b) requires. Collier’s motions to correct an illegal
sentence were timely and were addressed on the merits by the Nevada
courts.
                            COLLIER v. BAYER                           6231
at 1133. Nonetheless, the government argues such a rule “nec-
essarily follows” from a prior Nevada Supreme Court deci-
sion in Edwards v. State, 918 P.2d 321 (Nev. 1996). In
Edwards, the Nevada Supreme Court explained that motions
to correct an illegal sentence are special because they attack
a sentence that is “either facially illegal or is the result of a
mistaken assumption regarding a criminal defendant’s record,
time constraints and procedural defaults necessarily do not
apply.” Id. at 324. The Nevada Supreme Court’s discussion of
motions to correct an illegal sentence (and like appeals) in
Edwards emphasizes that these motions are free from the var-
ious constraints and time limits restricting access to other
appeals. In particular these motions are exempted from the
limitations on habeas petitions. Id.; Nev. Rev. Stat.
34.724(2)(a). Suggesting it “necessarily follows” from the
discussion in Edwards that motions to correct an illegal sen-
tence (and similar motions) limit an individual’s ability to
pursue habeas relief completely mischaracterizes the Edwards
opinion. The Nevada Supreme Court’s emphasis in Edwards
is on narrowly defining this type of appeal while emphasizing
broad access to it. Petitioners suffering under the errors chal-
lenged by motions to correct an illegal sentence are free of the
procedural hurdles placed on other types of appeals. It is dis-
ingenuous to suggest Edwards interpreted the phrase “an
appeal has been taken from the judgment” in Nev. Rev. Stat.
34.726(1) to exclude motions to correct an illegal sentence.
The Nevada Supreme Court considered no such question.
Twisting the court’s words to create such a meaning does not
establish a clear, consistently applied, and well-established
rule.

  Today, because of the Dickerson decision, the confusion
present during Collier’s appeal does not exist.12 Defendant-
  12
    The dissent suggests that every prisoner in Nevada convicted prior to
September 3, 2004 will be able to file a meritless motion to correct an ille-
gal sentence en route to filing a state habeas petition. Dissent at 6232-33.
This assertion is unwarranted. In this case, the petitioner’s motion to cor-
6232                        COLLIER v. BAYER
Appellants know they may pursue habeas relief only within
one year “from the issuance of the remittitur from a timely
direct appeal to this court from the judgment of conviction or
from the entry of the judgment of conviction if no direct
appeal is taken.” Dickerson, 967 P.2d at 1133-34.

                               Conclusion

   The Nevada procedural rules applied by the Nevada state
courts to bar Collier’s habeas petition are not adequate to pre-
clude federal review of his habeas petition. The rules applying
Nev. Rev. Stat. 34.726(1) were not clear, consistently applied,
and well-established at the time of Collier’s purported default.
When Collier filed his motion to correct an illegal sentence in
1997 and subsequent habeas petitions, it appeared under state
law a habeas petition could follow a remittitur from such an
appeal and amended judgment. The district court’s opinion is
reversed and the appeal is remanded for consideration on the
merits.

   REVERSED AND REMANDED.



BEA, Circuit Judge, dissenting:

  I respectfully dissent because the majority’s opinion allows
a petitioner for writ of habeas corpus to mock the Nevada

rect an illegal sentence was granted and he filed his second motion to cor-
rect an illegal sentence within the one-year period for filing an appeal. His
motions were properly filed and considered on the merits by the Nevada
state courts. If a person were able to replicate this unlikely pattern and
they were convicted prior to the Nevada Supreme Court’s opinion in Dick-
erson v. Nevada, 967 P.2d 1132 (Nev. 1998) (holding motions to correct
an illegal sentence are not an appeal from a judgment) then they could and
should be able to file their habeas appeal. No state rule was established to
the contrary prior to the Dickerson opinion.
                           COLLIER v. BAYER                           6233
statutory deadline for filing a habeas petition from a judgment
of conviction, simply by filing one or any number of motions
to correct an illegal sentence, no matter how meretricious the
motions. Henceforth, any prisoner convicted before the effec-
tive date of Sullivan v. Nevada, 96 P.3d 761 (Nev. 2004)—
September 3, 2004—will be able to file a baseless motion to
correct an illegal sentence as a prelude to filing a Nevada state
habeas petition on the ground that the denial of his motion to
correct an illegal sentence creates a one-year opportunity to
file a habeas petition. I disagree with the majority’s analysis
on three major points.

   First, it was well-established in Nevada law that a motion
to correct an illegal sentence did not either re-start or toll1 the
one-year time limit in which to file a habeas petition under
Nevada Revised Statute (“NRS”) § 34.726(1). The majority
opinion confuses appeals and habeas petitions, both of which
are used to attack the merits of a judgment of conviction, with
a motion to correct an illegal sentence, which is used only
when the judgment contains a sentence that is invalid under
the statutory sentencing scheme, or when the district court
sentenced the defendant based on a misunderstanding of the
defendant’s prior criminal record. Just as important, there is
no basis in the language of NEV. REV. STAT. § 34.726(1) to
conclude that a motion to correct an illegal sentence either re-
starts or tolls the time in which to file a state habeas petition.

   Second, the majority opinion arrives at its conclusion by
placing the burden on the State to cite this court to a prior
case in which Collier’s precise argument was rejected by the
Nevada Supreme Court to prove that Nevada’s one-year time
  1
    This is not to suggest that Collier’s motions to correct an illegal sen-
tence were filed during the one-year period when there was time to “toll,”
i.e. stop the running of the time to file a habeas petition. Indeed, the one
year had run both from the judgment (July 5, 1995) and the amended judg-
ment (March 26, 1997), when Collier filed his habeas petition on May 28,
1999.
6234                    COLLIER v. BAYER
limit to file a habeas petition under NRS § 34.726(1) was
well-established law. This is a radical new rule of law which
shifts the burden of proof from the prisoner to the State, with-
out the benefit of an en banc or Supreme Court ruling that
mandates such a burden shift. Heretofore, where the State has
pleaded a procedural bar and the defendant challenges the
adequacy of a State’s procedural bar, it is first the petitioner’s
burden to prove the procedural bar is inadequate. Bennett v.
Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Only if the peti-
tioner proves the procedural bar is inadequate does the burden
then shift to the State to prove the procedural bar is adequate.
Here, Collier failed in his initial burden of proof. The majority
opinion now relieves petitioners of that burden.

   Further, the majority presumes that a statute is not well-
established law unless a court has ruled that the statute means
what it says. This ruling will lead to all sorts of mischief.
Habeas petitioners have a duty to follow the plain language of
a State’s procedural rules, even where no State court has yet
rejected the precise attempt made by the petitioner to circum-
vent those rules. Bargas v. Burns, 179 F.3d 1207, 1211 (9th
Cir. 1999).

   Third, even if the amended judgment of conviction did start
anew the time period in which Collier could file an appeal,
which I contend it could not, Collier’s habeas petition was
filed more than one year after the date of entry of the
amended judgment of conviction. Hence, Collier’s habeas
petition was still barred under NRS § 34.726(1). The only
way Collier’s appeal from the amended judgment of convic-
tion could be timely is if his second motion to correct an ille-
gal sentence re-started the time for him to appeal from the
amended judgment. Of course, a motion to correct an illegal
sentence cannot revive the time in which to appeal after that
time has run out; is also not one of the few motions which toll
the time in which to appeal a judgment of conviction in a
criminal case under Nevada Rule of Appellate Procedure 4(b).
                           COLLIER v. BAYER                         6235
                      I.   Procedural History

  The precise chronology of events is important in this case.
On May 17, 1995, Collier pleaded guilty to Count I of the
Amended Information, which charged him with violating
NRS §§ 453.3385 and 453.3405 for possession of a traffick-
ing quantity of a controlled substance. Collier and the State
entered into a plea bargain in which Collier agreed to a 45-
year sentence. In exchange, the district attorney dismissed the
other ten charges filed against Collier.2

   At the time Collier entered his plea, the maximum sentence
under NRS § 453.3385 for a drug trafficking offense was life
in prison and a $100,000 fine. NEV. REV. STAT. § 453.3385(2)
(1993). Five days before Collier was sentenced, the Nevada
legislature changed the law, and the maximum sentence
became fifteen years. NEV. REV. STAT. § 453.3385(2)(1995).
The new version of NRS § 453.3385(2) specifically stated,
however, that it did not apply to any offense committed
before its effective date of July 1, 1995. Id. The Amended
Information, to which Collier pleaded guilty, stated that Col-
lier committed a violation of NRS § 453.3385 on March 12,
1994, over a year before the effective date of the new statute.
Therefore, the amended statute did not apply to Collier’s case.

  Collier was sentenced in accordance with the plea agree-
ment, and a final judgment of conviction was entered against
him on July 5, 1995. The judgment stated that Collier was
guilty of Count I of the Amended Information and the court
sentenced him to 45 years imprisonment and assessed a
$100,000 fine.
  2
   Collier had been charged with eleven drug trafficking offenses. After
Collier’s arrest, a substantial amount of methamphetamine, ephedrine, and
marijuana was found in Collier’s storage shed, along with 50 weapons and
narcotics paraphernalia. I add these details lest a reader of the majority
opinion come away with the impression that Collier was an unfortunate
bystander who infelicitously fell captive to the wares of a government
plant.
6236                        COLLIER v. BAYER
   Collier then had 30 days to file an appeal attacking his
judgment of conviction or to extend the 30-day period by fil-
ing one or more specific motions which, under NRAP 4(b),
serve to toll the running of that 30-day period:

      In a criminal case, the notice of appeal by a defen-
      dant shall be filed in the district court within thirty
      (30) days after the entry of the judgment or order
      appealed from. . . . If a timely motion in arrest of judg-
      ment3 or for a new trial on any ground other than
      newly discovered evidence4 has been made, an
      appeal from a judgment of conviction may be taken
      within thirty (30) days after entry of an order deny-
      ing the motion. A motion for a new trial based on the
      ground of newly discovered evidence will similarly
      extend the time for appeal from a judgment of con-
      viction if the motion is made before or within thirty
      (30) days after entry of the judgment. . . .

NEV. R. APP. P. 4(b)(1)(1995).

   Collier did not file a direct appeal within 30 days after the
entry of the judgment of conviction, nor did he file either a
motion in arrest of judgment or a motion for new trial. There-
fore, the right to appeal his judgment of conviction expired on
August 4, 1995.

  Because Collier did not file a timely appeal, he then had
one year after the entry of his judgment of conviction to file
a habeas petition under Nevada law:
  3
    A motion in arrest of judgment must be filed within 7 days after a
determination of guilt or within such further time as the court may fix dur-
ing the 7-day period. NEV. REV. STAT. § 176.525 (1995).
  4
    A motion for a new trial that is not based on newly discovered evi-
dence must be filed within 7 days after the verdict or finding of guilt. NEV.
REV. STAT. § 176.515 (1995).
                            COLLIER v. BAYER                           6237
      Unless there is good cause shown for delay, a peti-
      tion that challenges the validity of a judgment or
      sentence must be filed within 1 year after entry of
      the judgment of conviction or, if an appeal has been
      taken from the judgment, within 1 year after the
      Supreme Court issues its remittitur. For the purposes
      of this subsection, good cause for delay exists if the
      petitioner demonstrates to the satisfaction of the
      court:

           (a) That the delay is not the fault of the
           petitioner; and

           (b) That dismissal of the petition as
           untimely will unduly prejudice the peti-
           tioner.

NEV. REV. STAT. § 34.726(1) (1995). Collier failed to file a
habeas petition by July 5, 1996. His right to file a habeas peti-
tion expired on that date, absent good cause for the delay.

   On March 21, 1997, over 8 months after his appeal and
habeas opportunities had expired because of the passage of
time, Collier filed a pro se motion to correct an illegal sen-
tence under NRS § 176.555. In his motion, Collier set forth
the language of Count I to which he had pleaded guilty. He
moved the court to amend the judgment to include the statute
numbers to which he pleaded guilty, NRS §§ 453.3385 and
453.3405.5 As a second ground for his motion, Collier quoted
the revised version of NRS § 453.3385 and moved the court
  5
    Why this punctiliousness? Perhaps Collier thought that if he got the
court to put in the statute number he could argue the now revised statute
would apply and he was being held illegally. He was conveniently forget-
ting that the revised statute, by its own terms, did not apply to crimes com-
mitted before its effective date of July 1, 1995. Since Collier committed
the offense on March 12, 1994, regardless whether the statute number was
listed in his judgment, the revised statute does not apply to Collier’s case.
But one must remember, Collier was acting pro se.
6238                        COLLIER v. BAYER
to limit his sentence to 2 years, down from the 45 years he
agreed to earlier. Collier did not claim that he was ever con-
fused as to the statute under which he was convicted. The stat-
utes were spelled out in the Amended Information and plea
agreement, and Collier himself set them forth in his motion to
correct an illegal sentence.

   On March 26, 1997, the Nevada state district court issued
an amended judgment of conviction, in effect granting his
motion that the judgment recite the statute numbers under
which he was convicted. The amended judgment now speci-
fied that Collier had been found guilty of NRS §§ 453.3385
and 453.3405. The court did not, however, grant the second
part of his motion; it refused to reduce Collier’s sentence by
43 years. As the majority correctly noted, “the amended judg-
ment did not change the sentence.” Maj. Op. at 6221. In fact,
the amended judgment of conviction even kept the original
date: “Dated this 5th day of July, 1995.”6 Collier neither
moved for reconsideration of his motion nor did he appeal the
district court’s failure to rule on his motion to limit his sen-
tence to 2 years, or any other aspect of the amended judgment
entered on March 26, 1997. Collier did not file a habeas peti-
tion before March 26, 1998.

   On May 20, 1997, Collier filed a second pro se motion to
correct an illegal sentence based on the same grounds as his
first motion to correct an illegal sentence.7
  6
     This is precisely in keeping with the Nevada Supreme Court’s ruling
in Burbank v. Rivers, 18 P. 753, 755 (Nev. 1888), discussed infra. The
date of the judgment does not change when it is amended to correct a cler-
ical mistake, as was the case here.
   7
     The majority claims Collier filed this second motion “reviving” his
claims asserted in his March 21, 1997 motion. Maj. Op. at 6221. To repeat
is not to revive. His earlier claim had been denied; it was final. The repeti-
tion of his claim did not “relate back” or otherwise seek a reconsideration
of his earlier motion. It was just a second attempt.
                          COLLIER v. BAYER                         6239
   On May 28, 1997, the Nevada state district court denied
Collier’s second motion to correct an illegal sentence. The
district court specifically denied Collier’s motion on the mer-
its because, by its terms, the revised version of NRS
§ 453.3385 did not apply to his case. This time, Collier timely
appealed the district court’s order denying his second motion
to correct an illegal sentence on June 10, 1997.

   On November 16, 1998, Collier filed a notice of appeal
from his original judgment of conviction, claiming his appeal
was untimely because his trial counsel did not inform Collier
he had a right to appeal. The Nevada Supreme Court dis-
missed Collier’s appeal as untimely under NRAP 4(b) on Feb-
ruary 3, 1999.8

   On May 13, 1999, the Nevada Supreme Court affirmed the
district court’s order denying Collier’s second motion to cor-
rect an illegal sentence. The remittitur was issued on June 11,
1999.

   On May 28, 1999, Collier filed a pro se petition for writ of
habeas corpus in the Nevada state district court, seeking to
have all charges against him dismissed. Collier again claimed
his trial counsel failed to inform him that he had a right to file
a direct appeal.

   On August 20, 1999, the Nevada state district court dis-
missed Collier’s habeas petition as untimely under NRS
§ 34.726(1). It also held that Collier failed to show good
  8
    The Nevada Supreme Court had no power to enlarge the time for Col-
lier to file his direct appeal. NEV. R. APP. P. 26(b) (1995); Walker v.
Scully, 657 P.2d 94 (Nev. 1983). Neither could the court have extended
the time for Collier to file either a motion in arrest of judgment or a
motion for new trial to toll the time to file an appeal. NEV. REV. STAT.
§ 178.476 (1995); Culinary & Hotel Serv. Workers Union v. Haugen, 357
P.2d 113 (Nev. 1960) (court did not have power to extend time to file
motion for new trial, even pursuant to a stipulation between the parties,
and thus the notice of appeal was untimely).
6240                        COLLIER v. BAYER
cause for the untimeliness of the petition. On September 1,
1999, Collier appealed from the state district court’s denial of
his habeas petition to the Nevada Supreme Court.

   While Collier’s appeal from the denial of his state habeas
petition was pending, he filed a habeas petition in federal dis-
trict court through counsel on June 30, 2000.

   On August 28, 2001, the Nevada Supreme Court affirmed
the district court’s denial of Collier’s state habeas petition,
holding that his petition was untimely under NRS
§ 34.726(1).

   On March 28, 2003, the federal district court denied Col-
lier’s federal habeas petition, holding that the dismissal of
Collier’s state habeas petition under NRS § 34.726(1) pre-
cluded federal habeas review because NRS § 34.726(1) was
an independent and adequate state procedural bar9 and Collier
failed to show good cause for the untimeliness of his state
habeas petition. This timely appeal followed.

                      II.   Standard of Review

   We review de novo the district court’s decision to deny a
28 U.S.C. § 2254 habeas petition. Nunes v. Mueller, 350 F.3d
1045, 1051 (9th Cir. 2003). We review findings of fact made
by the district court for clear error, and “may affirm the dis-
trict court’s decision on any ground supported by the record,
even if it differs from the district court’s rationale.” Id.
  9
   For a state procedural bar to be an independent and adequate ground
sufficient to support a finding of procedural default, the rule must be
“clear, consistently applied, and well-established at the time of petitioner’s
purported default.” Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994).
A state procedural rule is adequate if the state courts follow it “in the vast
majority of cases.” Moran v. McDaniel, 80 F.3d 1261, 1270 (9th Cir.
1996) (citation omitted).
                       COLLIER v. BAYER                    6241
                        III.   Analysis

A. Under the Plain Language of NRS § 34.726(1) a
Motion to Correct an Illegal Sentence Does Not Re-Start
or Toll the Time in Which to File a Habeas Petition

   Regardless whether the original or amended judgment of
conviction is the relevant judgment, Collier’s state habeas
petition, filed on May 28, 1999, was untimely under NRS
§ 34.726(1) because it was filed more than one year after the
original judgment was entered on July 5, 1995, and more than
one year after the amended judgment was entered on March
26, 1997, neither of which did Collier timely appeal.

   The Nevada Supreme Court has stated that a motion to cor-
rect an illegal sentence is to be used only when the judgment
contains a sentence that is invalid under the statutory sentenc-
ing scheme, or is based on the district court’s misunderstand-
ing of the defendant’s criminal record. Edwards v. State, 918
P.2d 321, 324-25 (Nev. 1996).

  Here, Collier properly filed a motion to correct an illegal
sentence given that his argument was that his judgment of
conviction failed to recite the statute numbers under which he
was convicted and his sentence exceeded the statutory maxi-
mum. I agree that he was able to file such motion at any time.
NEV. REV. STAT. § 176.555 (1995). But this is a very different
proposition from saying that a motion to correct an illegal
sentence also re-starts or tolls the time in which to file a
habeas petition, which must be filed within one year.

   First, a motion to correct an illegal sentence and a habeas
petition are entirely different remedies with different pur-
poses. Collier’s motion to correct an illegal sentence did not
raise the question whether he was justly convicted. Collier
had pleaded guilty. The motion raised only the question
whether Collier was correctly sentenced for his crime.
6242                   COLLIER v. BAYER
   On the other hand, a habeas petition is used to attack the
validity of a judgment of conviction or sentence based on
alleged errors occurring at trial or sentencing. Edwards, 918
P.2d at 324-25. A judgment of conviction encompasses not
only a sentence, but also a finding of guilt. There are impor-
tant reasons why the Nevada legislature has limited the time
in which a judgment of conviction can be attacked collater-
ally. Witnesses die, move away, or forget; evidence is lost.
Witnesses and evidence are irrelevant to a motion to correct
a sentence, particularly where the sentence is negotiated, and
imposed following a guilty plea. That is why timing is impor-
tant to a habeas petition, but irrelevant to a motion to correct
a sentence.

   Second, under Nevada law a motion to correct an illegal
sentence does not re-start or toll the time in which to file a
habeas petition. Indeed, in Edwards, the Nevada Supreme
Court specifically disapproved of the very tactic Collier is
attempting to use here:

    We have observed that defendants are increasingly
    filing in district court documents entitled “motion to
    correct illegal sentence” or “motion to modify sen-
    tence” to challenge the validity of their convictions
    and sentences in violation of the exclusive remedy
    provision detailed in NRS 34.724(2)(b), in an
    attempt to circumvent the procedural bars governing
    post-conviction petitions for habeas relief under
    NRS chapter 34. We have also observed that the dis-
    trict courts are often addressing the merits of issues
    regarding the validity of convictions or sentences
    when such issues are presented in motions to modify
    or correct allegedly illegal sentences without regard
    for the procedural bars the legislature has estab-
    lished. If a motion to correct an illegal sentence or
    to modify a sentence raises issues outside of the very
    narrow scope of the inherent authority recognized in
                           COLLIER v. BAYER                         6243
       this Opinion, the motion should be summarily
       denied.

Id. at 325 n.2. The majority incorrectly characterizes the hold-
ing of Edwards. It is true that motions to correct an illegal
sentence can be filed at any time. But the filing of a motion
to correct an illegal sentence does not revive, nor toll, the time
in which to file a habeas petition.

   Further, in Sullivan v. Nevada, 96 P.3d 761 (Nev. 2004),
the Nevada Supreme Court considered a case that involved an
amended judgment and held:

       No specific language in NRS 34.726 expressly pro-
       vides that the one-year time period restarts if the
       judgment of conviction is amended.

       Moreover, construing NRS 34.726 to provide such
       an extended time period would result in an absurdity
       that the Legislature could not have intended.10 A
       judgment of conviction may be amended at any time
       to correct a clerical error [under NRS § 176.565] or
       to correct an illegal sentence [under NRS § 176.555].
       Because the district court may amend the judgment
       many years, even decades, after the entry of the orig-
       inal judgment of conviction, restarting the one-year
       period for all purposes every time an amendment
       occurs would frustrate the purpose and spirit of NRS
       34.726. Specifically, it would undermine the doc-
       trine of finality of judgments by allowing petitioners
       to file post-conviction habeas petitions in perpetuity.

Id. 764 (footnotes eliminated).
  10
    The court in Sullivan was referring to precisely the “absurdity” the
majority embraces today and enacts for all Nevada convictions earlier than
Sullivan, supra.
6244                   COLLIER v. BAYER
   The majority holds that because no Nevada court before
Sullivan had ruled that the plain language of NRS § 34.726(1)
means what it says, a petitioner could well believe that a
motion to correct an illegal sentence would re-start the time
in which to file a habeas petition; hence, according to the
majority, the one-year time period of NRS § 34.726(1) was
not “well-established” until Sullivan. While this argument
might have some merit if the language of NRS § 34.726(1)
were ambiguous and might allow one to interpret it in the
manner Collier does, the language of the statute is not ambig-
uous. See supra p. 6221. In ruling that the very argument pro-
posed by Collier “would result in an absurdity that the
Legislature could not have intended,” the court in Sullivan
was interpreting what the legislature intended when NRS
§ 34.726(1) was enacted. The meaning derived is not new; it
has always been there. See, e.g., Bousley v. United States, 523
U.S. 614, 633 (1998) (“It is well established that ‘when this
Court construes a statute, it is explaining its understanding of
what the statute has meant continuously since the date when
it became law.’) (quoting Rivers v. Roadway Express, Inc.,
511 U.S. 298, 313, n. 12 (1994)); Schwenk v. Hartford, 204
F.3d 1187, 1204 (9th Cir. 2000) (“It is well-established that
acts of Congress enjoy a strong presumption of constitutional-
ity and that newly-passed statutes do not require judicial rati-
fication in order to take effect.”).

B. Collier Has the Burden to Prove NRS § 34.726(1) Is
Not Adequate

   The majority holds that: “Once a petitioner has demon-
strated the inadequacy of a rule, the state bears the ultimate
burden of proving the rule bars federal review.” Majority Op.
at 6224-25. Although the majority properly cites the standard,
it mis-applies the burden of proof because Collier never has
established the inadequacy of NRS § 34.726(1). See Majority
Op. at 6225, n. 6.
                        COLLIER v. BAYER                      6245
   For ease of reference, I reiterate the Ninth Circuit’s stan-
dard regarding the burden of proving the adequacy of a state
rule:

    Once the state has adequately pled the existence of
    an independent and adequate state procedural ground
    as an affirmative defense, the burden to place that
    defense in issue shifts to the petitioner. The peti-
    tioner may satisfy this burden by asserting specific
    factual allegations that demonstrate the inadequacy
    of the state procedure, including citation to authority
    demonstrating inconsistent application of the rule.
    Once having done so, however, the ultimate burden
    is the state’s.

Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003)
(emphasis added).

   Thus, Step One is the state pleads a procedural bar. The
burden is then shifted to the petitioner. Step Two is where the
petitioner must demonstrate the inadequacy of the state proce-
dural bar, including “citation to authority demonstrating
inconsistent application of the rule.”

   The majority completely skips over Step Two, the step
requiring a petitioner who claims a state procedural bar (here
clearly stated in NRS § 34.726(1)) is not adequate, to prove
the inadequacy of the bar. Collier has not alleged any specific
factual allegations or cited us to any cases, nor can we find
any, where the Nevada Supreme Court failed to apply NRS
§ 34.726(1), so that one could conclude NRS § 34.726(1) was
not “well-established.” Nor has he cited any cases where the
Nevada Supreme Court allowed a motion to correct an illegal
sentence to re-start either the time to file an appeal or the time
to file a habeas petition. Thus, the state carried its burden
under Step One by pleading NRS § 34.726(1) as a procedural
bar. Collier has failed to carry his burden under Step Two.
6246                   COLLIER v. BAYER
   Indeed, we have previously held that NRS § 34.726(1) is an
independent and adequate state procedural rule barring federal
habeas review. See Loveland v. Hatcher, 231 F.3d 640, 643
(9th Cir. 2000); Moran v. McDaniel, 80 F.3d 1261, 1269 (9th
Cir. 1996). The majority’s conclusion is directly at odds with
Loveland and Moran. The majority concludes that because a
case presenting Collier’s precise factual situation had not been
previously decided by the Nevada Supreme Court, the law
must not be well-established. But this cannot be the rule. The
precise factual situations involved in Loveland and Moran had
not been decided prior to those cases either. Nevertheless, we
held that NRS § 34.726(1) barred federal review of those
cases.

   The only difference between Moran, Loveland and this
case is that Collier filed two motions to correct an illegal sen-
tence rather than the one motion filed in those cases. This dif-
ference makes no more distinction than the fact that Collier is
not named Loveland or Moran.

   This court has already soundly rejected the argument that
for a procedural bar to be “well-established” a state court
must have ruled that a particular attempt to circumvent that
procedural bar is invalid. In Bargas v. Burns, 179 F.3d 1207,
1211 (9th Cir. 1999), the petitioner made a similar attempt to
circumvent Nevada’s procedural bars. Bargas pleaded guilty
to sexual assault in Nevada state court. He then filed a state
habeas petition, claiming that he had ineffective assistance of
counsel and that his plea was not knowing and voluntary. Id.
at 1209-10. This petition was denied, but the trial court failed
to rule specifically on his claim of ineffective assistance of
counsel. Bargas appealed to the Nevada Supreme Court, but
only on the ground that his plea was not knowing and volun-
tary. He failed to raise his claim of ineffective assistance of
counsel. The Nevada Supreme Court affirmed the denial of
his habeas petition. Id. at 1210.

   Bargas then filed a habeas petition in federal court alleging
ineffective assistance of counsel. The district court dismissed
                       COLLIER v. BAYER                         6247
his petition, holding that his claim of ineffective assistance of
counsel was unexhausted because he failed to assert this claim
before Nevada’s highest court. Id. at 1210.

   Bargas then filed a second habeas petition in state court,
attempting to “revive,” as Collier did in his second motion to
correct an illegal sentence, his claim that he had ineffective
assistance of counsel and that his plea was not knowing and
voluntary. Id. The trial court held that Bargas had procedur-
ally defaulted on his ineffective assistance of counsel claim
by not appealing the failure to rule on that issue in his first
habeas petition. Id.

   Bargas then filed a second habeas petition in federal court,
again claiming he had ineffective assistance of counsel and
that his plea was not knowing and voluntary. The district
court denied the petition on the claim that Bargas’ plea was
not knowing and voluntary, but refused to reach the issue of
ineffective assistance of counsel because that claim was
barred by an independent and adequate state procedural bar—
NRS § 34.726(1). Id. On appeal, we affirmed the district
court’s ruling that it had no jurisdiction to hear petitioner’s
federal habeas petition on the issue of ineffective assistance
of counsel because Nevada’s law that a habeas petitioner had
to raise all his claims in his first petition was “well estab-
lished,” even though no Nevada case had yet held that a sec-
ond habeas petition did not “revive” such claims:

    [Bargas] argues that there are not any reported cases
    in Nevada specifically holding that a petitioner pro-
    cedurally defaults a claim when he fails to appeal
    from the denial of post-conviction relief, and instead
    files a second petition for habeas corpus. Although
    we agree with that conclusion, Nevada law neverthe-
    less clearly requires a petitioner to raise all claims in
    his first petition, unless he can demonstrate cause
    and prejudice . . .
6248                    COLLIER v. BAYER
Id. at 1211. The same is true here. Simply because no Nevada
court had previously stated that a second motion to correct an
illegal sentence does not re-start or toll the time in which to
file a habeas petition, any more than a first such motion, does
not mean the law was not well-established. NRS § 34.726(1)
and NRAP 4(b) are both quite clear about what alone will toll
the time to file an appeal and a habeas petition. All Collier
had to do was read the relevant statutes. Although Sullivan
was not decided at the time Collier was convicted, NRS
§ 34.726(1) was well-established. NRS § 34.726(1) was
passed in 1991, well before Collier was convicted in 1995.

   The plain language of NRS § 34.726(1) shows that motions
to correct an illegal sentence do not re-start or toll the time in
which to file a habeas petition. See supra, p. 6221. NRS
§ 34.726(1) states that only an appeal tolls the time in which
to file a habeas petition. The majority opinion is reading pos-
sibilities into NRS § 34.726(1) that the plain language of that
statute precludes. There are no cases where the Nevada
Supreme Court allowed such a second, identical and denied
motion to correct an illegal sentence to re-start or toll the time
in which to file either an appeal under NRAP 4(b)(1) or a
habeas petition under NRS § 34.726(1). Further, although the
majority states that “Collier filed a second motion to correct
an illegal sentence reviving the challenge to his sentence . . .”
(Majority Op. at 6221), this second motion was not a timely-
filed motion to reconsider the denial of his first motion. Thus,
it could not “revive” his first motion. Accordingly, we are
bound by Loveland and Moran.

C. A Motion to Correct an Illegal Sentence Does Not Re-
Start or Toll the Time in Which to File an Appeal

   Because the plain language of NRS § 34.726(1) states that
an appeal will toll the time in which to file a habeas petition,
we must examine whether Collier’s direct appeal from his
judgment of conviction was a valid appeal under Nevada law.
It was not.
                       COLLIER v. BAYER                     6249
   Under either the original judgment of conviction, entered
on July 5, 1995, or the amended judgment of conviction,
entered on March 26, 1997, Collier’s appeal from his judg-
ment of conviction, filed on November 16, 1998, was
untimely and was therefore of no effect. NEV. R. APP. P. 4(b).
This rule was well-established at the time of Collier’s convic-
tion even under the majority’s holding that there must be a
case saying so. See Lozada v. State, 871 P.2d 944, 946 (Nev.
1994).

   Moreover, the amended judgment of conviction did not re-
start the time period for Collier to file a direct appeal attack-
ing his judgment of conviction under NRAP 4. The Nevada
Supreme Court addressed a similar situation in Morrell v.
Edwards, 640 P.2d 1322 (Nev. 1982). There, the Nevada
Supreme Court dismissed a civil appeal as untimely where the
notice of appeal was not filed within thirty days of the origi-
nal judgment, but was filed within thirty days of the amended
judgment. The judgment had been amended to strike an award
of costs. The court held that: “The test for determining
whether an appeal is properly taken from an amended judg-
ment rather than the judgment originally entered depends on
whether the amendment disturbed or revised legal rights and
obligations which the prior judgment had plainly and properly
settled with finality.” 640 P.2d at 1324. Here, the amended
judgment of conviction did not revise the legal rights of the
parties. The majority opinion dismisses Edwards because it
was a civil case, but there is no reason the same principles
would not apply to a criminal case.

   Further, the majority opinion dismisses a similar holding in
a criminal case Burbank v. Rivers, 18 P. 753, 755 (Nev.
1888), as dusty old law. Majority Op. at 6226-27, n.7. What
the majority opinion refuses to acknowledge is that Burbank
is still good law. In Burbank, the Nevada Supreme Court held
that when a technical change is made to a judgment of convic-
tion, the time within which an appeal may be taken from the
judgment of conviction is computed from the date of the entry
6250                    COLLIER v. BAYER
of the original judgment not the amended judgment, unless
the party filing the appeal can show that he was “deceived”
or “misled” by the original judgment as entered. Burbank v.
Rivers, 18 P. 753, 755 (Nev. 1888) (holding that a judgment
that was amended to state the defendant’s correct name did
not start the time to file an appeal anew). Remember, the only
change in the amended judgment (March 26, 1997) was to
add the section number under which Collier was convicted. If
that is not merely “clerical” or “technical,” the words have
lost their meaning. Here, there is no argument Collier was
ever deceived or misled by the original judgment. By dismiss-
ing Burbank as too old, even though it has been followed and
cited,11 but never overruled, the majority establishes the
bizarre rule that a statute is only well-established if a case has
upheld the statute, but only if that case is not too old. Of
course, the majority does not tell us at what point a case
becomes overruled by operation of time.

   The only way that Collier’s appeal could be considered
timely is if his second motion to correct an illegal sentence,
which was filed on May 20, 1997, first revived and then tolled
the time in which to file an appeal from his judgment of con-
viction. But that cannot be the case—under NRAP 4(b), only
timely motions in arrest of judgment or for a new trial toll the
time in which to file an appeal. See supra p. 6236.

   Further, the majority states that “there is no established rule
that motions to correct an illegal sentence do not qualify as an
appeal from judgment, thus tolling the period for filing a
habeas petition.” Majority Op. at 6223. This is incorrect for
two reasons. First, as discussed above, a motion to correct an
illegal sentence presupposes that guilt was proved or admit-
ted. An appeal from judgment posits innocence. Second, even
if a motion to correct an illegal sentence were to qualify as an
appeal, Collier failed to file his motion to correct an illegal
  11
   See Bottini v. Mongolo, 197 P. 702, 704, 45 Nev. 245, 245 (Nev.
1921).
                       COLLIER v. BAYER                        6251
sentence within the 30-day time limit under NRAP 4(b) and
therefore, as an appeal, the motion was of no effect. Lozada,
871 P.2d at 946. “In the case of an untimely appeal, no
‘appeal had been taken from the judgment’ within the mean-
ing of NRS § 34.726(1) because nothing has happened.”
Dickerson v. State, 967 P.2d 1132, 1134 (Nev. 1998) (defen-
dant who was convicted of second degree murder filed an
untimely appeal, and then filed a petition for writ of habeas
corpus within one year of the issuance of the remittitur on his
appeal, but not within one year of his judgment of conviction;
the Nevada trial court dismissed the habeas petition as
untimely under NRS § 34.726(1); the Nevada Supreme Court
affirmed, holding that under the language of NRS § 34.726(1)
only a timely appeal tolls the one-year period in which to file
a habeas petition).

  The court in Dickerson held:

    We now construe NRS 34.726(1) to mean that the
    one-year period for filing a post-conviction habeas
    corpus petition begins to run from the issuance of the
    remittitur from a timely direct appeal to this court
    from the judgment of conviction if no direct appeal
    is taken. A timely direct appeal is one in which the
    notice of appeal is filed with the district court within
    the time period prescribed by statute. See, e.g.,
    NRAP 4. . . . In the case of an untimely appeal, no
    “appeal had been taken from the judgment” within
    the meaning of NRS 34.726(1) because nothing has
    happened.

    Moreover, to construe the statute any other way
    would lead to absurd results. . . . If the appeal
    referred to in NRS 34.726(1) meant any appeal,
    whether this court obtained jurisdiction or not, peti-
    tioners would be able to file successive notices of
    appeal year after year and thus perpetually re-start
    the one-year limitation period. Clearly, this is not
6252                    COLLIER v. BAYER
    what the legislature envisioned. Indeed, this court
    has already noted that the statutory time periods are
    intended to prevent such results. “Without such limi-
    tations on the availability of post-conviction reme-
    dies, prisoners could petition for relief in perpetuity
    and thus abuse post-conviction remedies.” Lozada
    [v. State, 871 P.2d 944, 950 (Nev. 1994)].

Dickerson, 967 P.2d at 1133-34.

   Although it is true that Dickerson was the first Nevada case
to hold that only a timely direct appeal tolls the time in which
to file a habeas petition under NRS§ 34.726(1), Dickerson
was simply relying on the plain language of NRS § 34.726(1)
and NRAP 4(b), and interpreting the intent of the legislature
when it enacted NRAP 4(b). By concluding that Nevada law
was not well-established prior to Collier’s appeal, the major-
ity opinion overlooks the plain language of NRS § 34.726(1)
and NRAP 4(b)(1). It would be a supremely arrogant view of
judicial importance to say that only judges can make law.
Law does not have to be in the form of a judge’s decision to
be binding. Statutes and rules are also binding.

   Here, under the majority’s analysis, a Nevada prisoner can
completely defeat both NRS § 34.726(1) and NRAP 4(b), and
repeatedly re-start the time in which to file a state habeas peti-
tion, simply by filing a motion to correct an illegal sentence
and then appealing the denial of that motion—even if the
grounds alleged in the motion to correct an illegal sentence
could have been brought up in a timely direct appeal from the
judgment of conviction, or an appeal from an identical earlier
motion, as is the case here.

   There is no need for such a rule. Under Nevada law, peti-
tioners who can show good cause for the delay can avoid the
one-year limitation under NRS § 34.726(1). Dickerson, 967
P.2d 1132, 1134.
                           COLLIER v. BAYER                         6253
  To establish good cause to excuse a procedural default
under Nevada law, “a defendant must demonstrate that some
impediment external to the defense prevented him from com-
plying with the procedural rule that has been violated.”
Lozada, 871 P.2d at 946. Here, Collier has not shown good
cause because, under Nevada law, the failure of counsel to
advise a criminal defendant that he has the right to file a direct
appeal is not good cause for failing to file a habeas petition
within one year after judgment of conviction. Dickerson, 967
P.2d at 1134.12

   Prior to and at the time of Collier’s conviction in 1995, it
was well-established law that only the motions specified in
NRAP 4 would toll the time in which to file a notice of
appeal. See, e.g., Chapman Indus. v. United Ins. Co., 874 P.2d
739, 741 (Nev. 1994) (per curiam) (a motion for reconsidera-
tion is not a tolling motion under NRAP 4(a) and therefore
does not re-start or toll the time in which to file a notice of
appeal); Holiday Inn Downtown v. Barnett, 732 P.2d 1376,
1379 (Nev. 1987) (per curiam) (a motion to vacate an order
affirming an administrative decision is not a tolling motion
under NRAP 4(a) and therefore does not re-start or toll the
time in which to file a notice of appeal). This was all well-
established law at the time of Collier’s conviction.

                          IV.    Conclusion

   The majority opinion allows a petitioner to resurrect an
expired right to file a habeas petition attacking a judgment of
conviction simply by filing a motion to correct an illegal sen-
tence. This is contrary to Nevada law and to this court’s hold-
ings in Loveland and Moran.

  Although the majority acknowledges that we have no
power to second guess state court interpretations of state law,
  12
    Like Collier, Dickerson argued that his direct appeal was late because
his counsel failed to tell him he had a right to appeal. 967 P.2d at 1133.
6254                   COLLIER v. BAYER
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), that is exactly
what the majority does. It second guesses NRS § 34.726(1)
and NRAP 4(b), not to mention our own burden of proof rule
stated in Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.
2003).

   If Collier’s original July 5, 1995 judgment of conviction is
considered, Collier’s November 16, 1998 notice of appeal was
filed well after the thirty-day deadline in NRAP 4(b), and his
May 28, 1999 habeas petition was filed well after the one-
year deadline in NRS § 34.726(1).

   If the March 26, 1997 amended judgment of conviction is
considered (which it should not be), Collier’s November 16,
1998 notice of appeal was filed after the thirty-day deadline
in NRAP 4(b), and his May 28, 1999 habeas petition was still
filed after the one-year deadline in NRS § 34.726(1).

   The one-year deadline in NRS § 34.726(1) was at all times
well-established law, and any way you look at this case, Col-
lier missed that deadline. Accordingly, I respectfully dissent.
