PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORRIS CARLTON TAYLOR,
Petitioner-Appellant,

v.
                                                                    No. 98-36
R. C. LEE,* Warden of Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CA-97-829-5-HC-F)

Argued: May 5, 1999

Decided: July 29, 1999

Before ERVIN, WILKINS, and KING,
Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Ervin wrote the
opinion, in which Judge Wilkins and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: James Richard Glover, GLOVER & PETERSEN, P.A.,
_________________________________________________________________
*Taylor named James B. French, former warden of Central Prison
where Taylor is incarcerated, as Respondent in his petition. Subse-
quently, R. C. Lee succeeded French as Warden at that institution.
Chapel Hill, North Carolina; Gretchen Marie Engel, CENTER FOR
DEATH PENALTY LITIGATION, Durham, North Carolina, for
Appellant. Kendrick C. Fentress, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Michael F. Easley, Attorney
General of North Carolina, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

The question before this Court is how to calculate the limitations
period for federal habeas corpus petitioners who were in the middle
of state post-conviction proceedings when the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA") was signed. See 28
U.S.C.A. § 2244(d)(2) (West Supp. 1999).

Norris Carlton Taylor ("Taylor") is on death row in North Carolina
for murder. When the AEDPA was signed on April 24, 1996, Taylor
was still undergoing state post-conviction proceedings. After exhaust-
ing his state remedies, Taylor filed a federal petition for a writ of
habeas corpus in district court.

The district court dismissed Taylor's petition as barred by the stat-
ute of limitations. It did not toll a gap in time between stages of Tay-
lor's state proceedings from Taylor's limitations period. Taylor
disputed the district court's calculations. He asserted that the entire
period of state post-conviction proceedings, from start to finish,
should be tolled.1 Agreeing that the district court should have tolled
the entire period of state post-conviction proceedings, we reverse the
dismissal and remand to allow the filing of Taylor's petition.
_________________________________________________________________

1 Taylor also argued on appeal that the district court should have tolled
the period of time he took to seek certiorari review from the U.S.
Supreme Court. Because our holding tolling the entire period of his state
post-conviction proceedings is sufficient to allow Taylor to refile his
petition, we do not address this issue.

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I.

On July 10, 1979, a North Carolina jury found Taylor guilty of the
murder and armed robbery of Mildred Murchison and the kidnapping,
armed robbery, and assault with a deadly weapon with intent to kill
of Malcolm Biles. On July 30, 1979, that same jury recommended
that Taylor be sentenced to death. The North Carolina Superior Court
judge then sentenced Taylor to death for Murchison's murder and to
consecutive terms of imprisonment for the non-capital offenses.

For the next fourteen years, Taylor raised extensive state appellate
and post-conviction challenges to his sentence before seeking federal
relief. Starting with Taylor's application for federal relief, the relevant
procedural history is summarized below:

July 6, 1993Taylor filed his first federal petition for a writ
          of habeas corpus.

July 28, 1993Taylor filed his second motion for appropriate
          relief ("MAR") in North Carolina Superior
          Court.

November 8, 1993The federal district court dismissed Taylor's
       first petition without prejudice for failure to
       exhaust state remedies.

April 24, 1996The AEDPA was signed into law.

May 16, 1996The North Carolina Superior Court denied
         three of Taylor's claims in his MAR.

May 23, 1996The North Carolina Superior Court denied the
         remainder of Taylor's claims in his MAR.

August 23, 1996The transcript of the North Carolina Superior
         Court proceedings was completed and deliv-
         ered to Taylor's counsel.

October 22, 1996Taylor filed a petition for a writ of certiorari
         in the Supreme Court of North Carolina.

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February 10, 1997 The Supreme Court of North Carolina issued
                 an order reaching the merits of one of Tay-
                 lor's claims, finding harmless error, and deny-
                 ing certiorari.

May 9, 1997       Taylor filed a petition for a writ of certiorari
                  in the U.S. Supreme Court.

September 8, 1997 The last day for Taylor to file a habeas peti-
                tion as argued by the State.

October 6, 1997    The U.S. Supreme Court denied certiorari.

December 9, 1997 The last day for Taylor to file a habeas peti-
                tion as decided by the federal district court.
                The district court tolled an additional 121
                days from the State's calculation to account
                for the transcript preparation.

February 2, 1998 Taylor filed his second federal petition for a
                 writ of habeas corpus in federal district court.

February 18, 1998 The State of North Carolina moved to dismiss
                 Taylor's petition as untimely.

June 9, 1998      The federal district court granted the State's
                   motion and dismissed Taylor's second peti-
                   tion as untimely.

December 18, 1998 Taylor filed a notice of appeal and an applica-
                tion for a certificate of appealability.

January 14, 1999 The federal district court issued a Certificate
                 of Appealability as to (1) whether the district
                 court erred in dismissing Taylor's petition as
                 untimely pursuant to 28 U.S.C.A. § 2244(d)
                 and (2) whether the district court erred in its
                 calculation of the limitations period.

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II.

Taylor made two arguments on appeal. First, Taylor argued that the
AEDPA should not apply to his case because his first federal petition
for a writ of habeas corpus was dismissed without prejudice before
the AEDPA was signed into law. Second, Taylor contended that the
entire period of his state post-conviction proceedings should have
been tolled from the limitations period of his second petition. The
construction of a statute is a question of law that we review de novo.
See Shafer v. Preston Mem'l Hosp. Corp., 107 F.3d 274, 277 (4th Cir.
1997).

A.

The threshold issue is whether the AEDPA applies to the current
appeal. This Court has held that any federal petition for a writ of
habeas corpus filed after the signing of the AEDPA on April 24, 1996
is governed by the AEDPA. See Brown v. Angelone , 150 F.3d 370,
372 (4th Cir. 1998). Although Taylor filed his first habeas petition on
July 6, 1993, before the adoption of the AEDPA, this first petition
was dismissed without prejudice by the district court because Taylor
had not yet exhausted his state remedies. It specifically instructed
Taylor in its order that he "must institute a new action as the instant
case is closed." Taylor initiated such a new action only with his sec-
ond habeas petition. Since he filed his second petition on February 2,
1998, well after the signing of the AEDPA on April 24, 1996, the
AEDPA applies in this case. Accord Graham v. Johnson, 168 F.3d
762, 775-77 (5th Cir. 1999) (rejecting a similar argument).

B.

The second issue concerns the construction of Taylor's limitations
period. We have already held that petitioners like Taylor who were
still undergoing state post-conviction proceedings on April 24, 1996,
had until April 23, 1997, under the AEDPA, to file a federal habeas
petition. See Brown, 150 F.3d at 375-76. Both sides agree that the
periods of time when Taylor's post-conviction filings were actually
before a state court should be tolled from Taylor's limitations period.
They disagree, however, over the period of time in between the North
Carolina Superior Court's denial of Taylor's second MAR and Tay-

                    5
lor's filing of a petition for a writ of certiorari from the North Caro-
lina Supreme Court.

This dispute centers on the interpretation of the word "pending" in
§ 2244(d)(2) of the AEDPA.2 The State of North Carolina argued, and
the district court agreed, that Taylor's state application for post-
conviction review was "pending" only until the North Carolina Supe-
rior Court denied his second MAR. The State argued that the period
of time between when the MAR was denied and when Taylor filed
a petition for writ of certiorari from the North Carolina Supreme
Court (152 days) should not be tolled. According to the State's calcu-
lation, Taylor's last day to file a habeas petition was September 8,
1997. The district court accepted the State's analysis, except that it
tolled an additional 121 days to account for the State's transcript
preparation, finding that "even the most diligent of state prisoners
cannot prevent delays in the preparation of a transcript." The district
court ultimately held that December 9, 1997, was Taylor's last day to
file a habeas petition.

According to our research, of the federal appellate courts, only the
Ninth and the Tenth Circuits have directly addressed this issue.3 Both
circuits have interpreted § 2244(d)(2) to toll the entire period of post-
conviction proceedings. See Nino v. Galaza, No. 98-55563, 1999 WL
451783, at *1; 1999 U.S. App. LEXIS 14966, at *1 (9th Cir. July 6,
_________________________________________________________________
2 Section 2244(d)(2) of the AEDPA reads in relevant part:

          (2) The time during which a properly filed application for State
          post-conviction or other collateral review with respect to the per-
          tinent judgment or claim is pending shall not be counted toward
          any period of limitation under this subsection.

28 U.S.C.A. § 2244(d)(2) (emphasis added).
3 In similar cases, the First and Eleventh Circuits tolled the entire
period of state post-conviction proceedings when calculating limitations
periods for specific petitioners. See Gaskins v. Duval, No. 97-2051, 1999
WL 447129, at *2 n.2; 1999 U.S. App. LEXIS 15061, at *4 n.2 (1st Cir.
July 7, 1999) (observing that not tolling the gap in time would not have
altered the disposition of the case); Guenther v. Holt, 173 F.3d 1328,
1331 (11th Cir. 1999) (tolling the entire period of time from the initial
state post-conviction petition to the denial of certiorari by the Alabama
Supreme Court).

                     6
1999) ("We conclude that . . . the time must be tolled for the entire
period in which a petitioner is appropriately pursuing and exhausting
his state remedies."); Barnett v. Lemaster , 167 F.3d 1321, 1323 (10th
Cir. 1999) ("We conclude [that] the term[`pending'] must be con-
strued more broadly to encompass all of the time during which a state
prisoner is attempting, through proper use of state court procedures,
to exhaust state court remedies. . . .").

While not directly addressing this issue, the Supreme Court
recently reinforced the Ninth and Tenth Circuits' reasoning. In
O'Sullivan v. Boerckel, the Supreme Court held that a habeas peti-
tioner must "give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's
established appellate review process." 526 U.S. ___, ___, 119 S.Ct.
1728, 1732 (1999).

In contrast, our research indicates that the only court to adopt the
State's "gap theory" in a published opinion is a district court in the
Middle District of North Carolina. See Moseley v. French, 961
F.Supp. 889, 892 (M.D.N.C. 1997) ("The one-year period is given for
the very purpose of preparing petitions, motions, etc. and, therefore,
cannot be considered a tolling event."). In the current case, the district
court's tolling of the additional 121 days for transcript preparation
was not consistent with Moseley because that period was for the very
purpose of preparing a motion.

After review, we find the reasoning of our sister Ninth and Tenth
Circuits persuasive. We reject the gap theory for two reasons.

First, we agree with the district court that a transcript "is often a
necessary part of the trial court record filed for appellate review" and
that "the time required for the State to prepare and deliver the tran-
script" is "a matter completely out of a prisoner's control." Unfortu-
nately, the gap theory does not allow for tolling of events such as
transcript preparation.

Second, we believe that tolling the entire period of state proceed-
ings upholds "[t]he principle of comity that underlies the exhaustion
doctrine." Murray v. Carrier, 477 U.S. 478, 489 (1986). See Gaskins,
1999 WL 447129, at *2; 1999 U.S. App. LEXIS 15061, at *5

                     7
("Applying the tolling provision encourages respect for the principle
of comity and compliance with the requirement that, ordinarily, a
state prisoner must first exhaust his state court remedies before seek-
ing federal habeas relief."). We agree with the Ninth Circuit that a
"contrary construction would be antithetical to the entire theory of
state remedy exhaustion and would inevitably lead to the filing of
protective federal petitions." Nino, 1999 WL 451783, at *2; 1999 U.S.
App. LEXIS 14966, at *6.

We therefore hold that under § 2244(d)(2) the entire period of state
post-conviction proceedings, from initial filing to final disposition by
the highest state court (whether decision on the merits, denial of cer-
tiorari, or expiration of the period of time to seek further appellate
review), is tolled from the limitations period for federal habeas corpus
petitioners who were already involved in state post-conviction pro-
ceedings on April 24, 1996.

III.

We reverse the district court's dismissal of Taylor's petition for a
writ of habeas corpus and remand to allow filing.

REVERSED AND REMANDED

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