PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETRA E. HERNANDEZ,
Petitioner-Appellant,

v.                                                                No. 98-7640

CAROL CALDWELL; MACK JARVIS,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-97-717-5-H)

Argued: May 5, 2000

Decided: August 28, 2000

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge Wilkins and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Letitia C. Echols, NORTH CAROLINA PRISONER
LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellant.
Clarence Joe DelForge, III, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellees. ON BRIEF: Linda B. Weisel, NORTH CARO-
LINA PRISONER LEGAL SERVICES, INC., Raleigh, North
Carolina, for Appellant. Michael F. Easley, Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

This appeal raises a new question about calculating the limitations
period for federal habeas corpus petitioners whose convictions
became final before the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was signed into law. Petra Hernandez peti-
tioned for a writ of habeas corpus under 28 U.S.C.§ 2254, alleging
that her inability to communicate effectively in English rendered her
guilty plea and sentence on state drug charges constitutionally defec-
tive. The district court dismissed the petition as untimely, concluding
that AEDPA's one-year statute of limitations (codified at 28 U.S.C.
§ 2244(d)(1)) expired between the day the state court denied Her-
nandez's motion for appropriate relief and the day she petitioned the
state court of appeals for review of that decision. Relying on our
recent precedent, we hold that the statute of limitations should have
been tolled during that time. On the new question, we hold that the
computation of the limitations period is governed by Fed. R. Civ. P.
6(a), with the result that Hernandez's federal habeas petition was
timely filed on the very last day allowed. We therefore reverse and
remand for further proceedings.

I.

Petra Hernandez was indicted in the Superior Court of Cumberland
County, North Carolina, for conspiracy to traffic in cocaine, traffick-
ing in cocaine by possession, and trafficking in cocaine by transporta-
tion. On May 29, 1992, she pled guilty to all three charges. Thirteen
months later she was sentenced to three consecutive terms of twenty-
five years in prison, for a total of seventy-five years. Hernandez
appealed her plea and sentence to the North Carolina Court of
Appeals; that appeal was dismissed on September 26, 1994. Her-
nandez then petitioned the court of appeals for certiorari; that petition
was denied on February 25, 1995.

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Next, Hernandez filed a motion for appropriate relief (MAR) in
Cumberland County Superior Court on April 23, 1997. She alleged
that her plea was involuntary because she was required to enter it
without the assistance of an interpreter, that the sentencing court's
refusal to allow her to testify in Spanish denied her the right to testify
in her own behalf, and that her counsel was ineffective in failing to
request an interpreter for all stages of the criminal prosecution. The
MAR was denied in an order dated August 8, 1997. A copy of that
order was mailed from the superior court clerk's office on August 12
and received by Hernandez's counsel on August 14, 1997. That same
day, August 14, 1997, Hernandez petitioned the North Carolina Court
of Appeals for certiorari, seeking review of the order denying the
MAR. The petition for certiorari was denied on September 8, 1997,
and Hernandez's counsel received a copy of the order on the follow-
ing day, September 9, 1997.

On September 9, 1997, Hernandez filed a petition for a writ of
habeas corpus in federal court for the Eastern District of North Caro-
lina, claiming the same errors that she had asserted in her MAR. The
State of North Carolina moved for summary judgment on the merits
and on the procedural ground that Hernandez's habeas petition was
untimely under the one-year limitation of 28 U.S.C.§ 2244(d). The
district court dismissed Hernandez's petition, agreeing that it was
barred by § 2244(d). Hernandez filed a notice of appeal, and the dis-
trict court granted a certificate of appealability.

II.

The State of North Carolina has moved to dismiss this appeal,
arguing that the district court erred in granting Hernandez a certificate
of appealability. As the State points out, a certificate of appealability
may be granted "only if the applicant has made a substantial showing
of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The
State contends that Hernandez's claim of procedural error does not
implicate a constitutional right and that we therefore lack subject mat-
ter jurisdiction over her appeal. We disagree. As the Supreme Court
has recently explained, "[i]n setting forth the preconditions for issu-
ance of a COA [certificate of appealability] under § 2253(c), Con-
gress expressed no intention to allow [district] court procedural error
to bar vindication of substantial constitutional rights on appeal." Slack

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v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595, 1603 (2000). In this case
the district court dismissed Hernandez's petition on procedural
grounds without ever reaching her underlying constitutional claims.
Under these circumstances, the certificate of appealability was prop-
erly issued if Hernandez has shown "[1] that jurists of reason would
find it debatable whether the petition states a valid claim of the denial
of a constitutional right and [2] that jurists of reason would find it
debatable whether the district court was correct in its procedural rul-
ing." Id. at ___, 120 S. Ct. at 1604. Hernandez claims that her poor
command of English rendered her plea involuntary, her sentencing
hearing unconstitutional, and her counsel ineffective. These allega-
tions state a "valid claim of the denial of a constitutional right." See,
e.g., Franklin v. Hightower, 215 F.3d 1196, 1199-1200 (11th Cir.
2000); see also Fernandez v. Rodriguez, 761 F.2d 558, 561-62 (10th
Cir. 1985). Thus, Hernandez has satisfied the first of the requirements
for a certificate of appealability under Slack . And since we hold that
the district court's procedural ruling was wrong, see part III, Her-
nandez has satisfied the second requirement as well. The motion to
dismiss is denied.

III.

Hernandez contends that her federal habeas petition was timely
because she filed it on the last day available under AEDPA. AEDPA
was signed into law on April 24, 1996, and became effective immedi-
ately. It provides:

          A 1-year period of limitation shall apply to an application
          for writ of habeas corpus by a person in custody pursuant to
          the judgment of a State court. The limitation period shall run
          from the latest of --

          (A) the date on which the judgment became
          final by the conclusion of direct review or the
          expiration of the time for seeking such review. . . .

28 U.S.C. § 2244(d)(1)(A).

For prisoners like Hernandez, whose convictions became final
before AEDPA was enacted, retroactive application of§ 2244(d)

                     4
(1)(A) would either summarily extinguish their federal habeas claims
or impose an unreasonably short limitations period. See Brown v.
Angelone, 150 F.3d 370, 372-73 (4th Cir. 1998). In Brown we recog-
nized that Congress intended no such retroactive effect. Conse-
quently, we held that for prisoners whose convictions became final
prior to AEDPA's enactment, the limitations period began to run with
AEDPA's effective date. See id. at 375. Although the parties and the
district court did not have the benefit of Brown when the district court
made its decision, all agreed that Hernandez was entitled to file her
federal habeas petition within one year of AEDPA's enactment,
excluding any time when the statute was tolled.

The running of § 2244(d)(1)'s "period of limitation" is tolled dur-
ing the time "a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim
is pending." 28 U.S.C. § 2244(d)(2). The district court determined
that Hernandez's MAR, filed April 23, 1997, tolled the one-year limi-
tations period exactly one day before it was to expire. But the clock
started running again, according to the district court, on August 8,
1997, when the Cumberland County superior court denied Her-
nandez's MAR. Thus, by the time Hernandez's counsel received a
copy of the denial order in the mail on August 14, 1997, Hernandez's
federal habeas claim was barred by the one-year limit.

Since the district court's decision, we have rejected this "gap the-
ory," under which the statute of limitations runs in fits and starts dur-
ing the "gaps" between the decisions of state post-conviction courts
and the initiation of the next stages of state review. See Taylor v. Lee,
186 F.3d 557, 561 (4th Cir. 1999). Instead, we held that an applica-
tion for post-conviction or other collateral review is "pending" from
initial filing until final disposition by the state courts. See id. In Her-
nandez's case that would mean that the limitations period was tolled
until September 8, 1997, when the North Carolina Court of Appeals
denied her petition for certiorari.

The State attempts to distinguish Taylor, arguing that its holding
should be limited to petitions by capital defendants who had already
initiated post-conviction review as of AEDPA's effective date. We
are not persuaded. There is no reason to give the word "pending" in
§ 2244(d)(2) a different meaning in non-capital cases. Moreover, the

                     5
State's attempt to resurrect the gap theory contradicts the explicit
rationale of Taylor, where we recognized that a "`contrary construc-
tion would be antithetical to the entire theory of state remedy exhaus-
tion and would inevitably lead to the filing of protective federal
petitions.'" Id. at 561 (quoting Nino v. Galaza, 183 F.3d 1003, 1005
(9th Cir. 1999)).

Under our holdings in Brown and Taylor , Hernandez had one year
from AEDPA's effective date, April 24, 1996, to file her federal
habeas petition. The statute was tolled when Hernandez filed her
MAR on April 23, 1997, and remained tolled until the North Carolina
Court of Appeals denied her petition for certiorari on September 8,
1997. The only question that remains is whether the last day of the
one-year limitations period was April 23, 1997, in which case Her-
nandez's § 2254 petition filed September 9, 1997, was one day late,
or whether the last day of the one-year period was April 24, 1997, in
which case the petition was timely. Until now, we have not been con-
fronted by a case where the determination of the final day (April 23
or April 24, 1997) of the one-year period of limitation was of any sig-
nificance to our decision.

We have said in dicta in recent cases that the one year from
AEDPA's April 24, 1996, effective date ended on April 23, 1997. See
Brown, 150 F.3d at 375; Taylor, 186 F.3d at 560; United States v.
Pregent, 190 F.3d 279, 284 (4th Cir. 1999). However, in none of
these cases did our decision turn on the precise beginning or ending
date of the limitations period. See Brown, 150 F.3d at 371 (petition
filed one month after AEDPA's effective date); Taylor, 186 F.3d at
559 (petition filed with at least eight days to spare, after tolling); Pre-
gent, 190 F.3d at 284 (petition filed seven months too late). In Brown
we held that petitioners whose convictions were final before
AEDPA's effective date had a "reasonable period" of one year in
which to file their federal habeas petitions. We then observed that this
was the prevailing rule in the courts of appeals:

          the vast majority of the circuits addressing [§ 2244(d)'s
          retroactive effect] similarly have held that a"reasonable
          period" means one year from the effective date of AEDPA
          -- i.e., that prisoners whose convictions became final at any

                     6
          time prior to the effective date of AEDPA had until April
          23, 1997, to file their § 2254 petition or§ 2255 motion.

Brown, 150 F.3d at 375. Taylor and Pregent repeated this language.
See Taylor, 186 F.3d at 560 (citing Brown ); Pregent, 190 F.3d at 284
(quoting Brown). We believe that the April 23 date in the quoted pas-
sage from Brown is best characterized as an illustration of the one-
year rule rather than a statement of the rule itself. See Black's Law
Dictionary 465 (7th ed. 1999) (defining "dictum"). The petitioner in
Brown had filed his habeas petition just one month after AEDPA's
effective date, well within the one-year period of limitation. See
Brown, 150 F.3d at 371. Thus, our statement that the limitations
period ended on April 23, 1997, was not pivotal to our decision; it
was dictum and does not control the outcome today.

Ultimately, the issue before us is not a hard one. The general rule
for counting time in the federal courts is provided by Fed. R. Civ. P.
6(a), which reads:

          In computing any period of time prescribed or allowed by
          these rules, by the local rules of any district court, by order
          of court, or by any applicable statute, the day of the act,
          event, or default from which the designated period of time
          begins to run shall not be included.

We use Rule 6(a) in computing the limitations periods provided in
statutes. See, e.g., Wirtz v. Peninsula Shipbuilders Assoc., 382 F.2d
237, 239 (4th Cir. 1967) (applying Rule 6(a) to 60-day period for Sec-
retary of Labor to file suit under 29 U.S.C. § 482(b)). In this case "the
day of the . . . event . . . from which the designated period of time
begins to run" is AEDPA's effective date, April 24, 1996. See Moore
v. United States, 173 F.3d 1131, 1133 (8th Cir. 1999). Since that day
is excluded from the one year prescribed by § 2244(d)(1) ("the desig-
nated period of time"), the actual count on the limitations period
began on April 25, 1996, and ended on April 24, 1997, excluding any
time tolled. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998)
(explaining the rule in another way: "When a statute of limitations is
measured in years, the last day for instituting the action is the anniver-
sary date of the start of the limitations period."). Every circuit case
that has applied Rule 6(a) to compute the one year under § 2244(d)

                     7
has reached the same conclusion that we do today. See Rogers v.
United States, 180 F.3d 349, 355 & n.13 (1st Cir. 1999), cert. denied,
120 S. Ct. 958 (2000); Ross, 150 F.3d at 103; Flanagan v. Johnson,
154 F.3d 196, 200-02 (5th Cir. 1998); United States v. Marcello, 212
F.3d 1005, 1010 (7th Cir. 2000); Moore, 173 F.3d at 1135; United
States v. Cicero, 214 F.3d 199, 202 (D.C. Cir. 2000). Furthermore, in
at least two of those cases, the exact beginning and ending date of the
limitations period was dispositive of the timeliness issue, just as it is
here. See Moore, 173 F.3d at 1132-33, 1135 (habeas petition timely
when placed in prison mail system on April 24, 1997); Flanagan, 154
F.3d at 197 (habeas petition timely when filed on April 24, 1997).

Because the limitations period did not expire until April 24, 1997,
Hernandez still had one day to spare when she filed her MAR in
Cumberland County Superior Court on April 23, 1997. The statute
was thus tolled from April 23, 1997, until the state court denied cer-
tiorari on September 8, 1997. Because Hernandez filed her federal
habeas petition the next day (her one spare day), her petition is
timely.*

IV.

We deny the State's motion to dismiss Hernandez's appeal.
Because she filed her petition for a writ of habeas corpus within
§ 2244(d)'s one-year statute of limitations, we reverse the judgment
of the district court and remand for further proceedings.

REVERSED AND REMANDED
_________________________________________________________________
*Because we hold that Hernandez's federal habeas petition was timely
filed, we do not reach her alternative claim that§ 2244(d)'s limitations
period should have been equitably tolled due to her difficulties with
English and her counsel's delayed notice of state court orders that were
sent by mail.

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