                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-1855
                                ________________

Bernard Cross-Bey,                        *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Eastern District of Missouri.
James A. Gammon,                          *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: November 6, 2002
                                    Filed: March 12, 2003
                                ________________

Before HANSEN, Chief Judge, BEAM and SMITH, Circuit Judges.
                           ________________




HANSEN, Circuit Judge.

      The district court granted Bernard Cross-Bey’s petition for a writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2254. James A. Gammon, the Supervisor of the
Moberly Correctional Center (hereinafter “the State”), appeals the district court’s
denial of his motion to dismiss as well as the grant of the writ of habeas corpus. We
reverse the judgment of the district court.
                                          I.

       In March 1992, Cross-Bey pleaded guilty in state court to the charge of selling
cocaine. The state court judge sentenced Cross-Bey to a 15-year term of incarceration
but suspended the execution of the sentence and placed him on probation for a period
of two years. On September 11, 1992, the state court revoked Cross-Bey’s probation
following a hearing and ordered execution of the 15-year sentence. His state court
appeal and collateral review process were completed by May of 1994.

       On June 27, 1995, Cross-Bey filed a § 2254 petition for a writ of habeas corpus
in federal district court. On July 28, 1995, the State asserted in its response that the
petition contained exhausted and unexhausted claims and therefore should be
dismissed without prejudice for failure to exhaust available state court remedies. (Jt.
App. at 442.) Cross-Bey resisted dismissal, asserting that he had exhausted state
court remedies and requesting permission to amend his complaint. The district court
permitted Cross-Bey to amend the complaint, but ultimately dismissed the case
without prejudice on Cross-Bey's own motion in December 1997. Cross-Bey returned
to state court to exhaust available remedies and filed a new § 2254 petition in federal
court on August 7, 1998, within nine months of the dismissal of his first petition.

        The State moved for dismissal of this new habeas corpus petition on the ground
that it violated the one-year statute of limitations provided in the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1). The district court
denied the motion to dismiss, granting Cross-Bey a one-year grace period running
from the dismissal of his first habeas corpus petition in December 1997, and
concluding that the pending petition (filed in August of 1998) was filed well within
this period. The district court reasoned that this grace period was appropriate because
Cross-Bey’s first habeas petition had been pending when AEDPA was enacted on
April 24, 1996, and was dismissed months after its enactment.



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       Considering the petition's merits, the district court concluded that Cross-Bey’s
probation revocation counsel in state court had been ineffective for failing to conduct
a reasonable investigation and for failing to present evidence at the revocation
hearing that would have supported Cross-Bey’s asserted defense. Accordingly, the
district court granted the writ. The State now appeals.

                                          II.

       “AEDPA’s provisions apply to all habeas corpus petitions filed after the Act’s
effective date” of April 24, 1996. Weaver v. Bowersox, 241 F.3d 1024, 1029 (8th
Cir. 2001). AEDPA provides that a prisoner must file a petition for habeas corpus
relief within one-year of when the prisoner's state court judgment becomes final. 28
U.S.C. § 2244(d)(1). We have recognized a one-year grace period running from
AEDPA's enactment for prisoners whose state court proceedings were completed
prior to AEDPA's enactment. Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999).

       Thus, AEDPA governs Cross-Bey’s current habeas corpus petition. Because
that petition was filed after AEDPA's date of enactment and after the expiration of the
one-year grace period that we have recognized, the petition is untimely. Although
Cross-Bey's initial federal petition for habeas corpus was pending when AEDPA was
enacted, its dismissal without prejudice rendered that proceeding a nullity and left the
parties as if no action had ever been filed. Williams v. Clarke, 82 F.3d 270, 273 (8th
Cir. 1996).

       AEDPA's statute of limitations, however, is subject to tolling. The statute itself
contains a tolling provision which provides that “[t]he time during which a properly
filed application for State post-conviction or other collateral review . . . is pending
shall not be counted toward any period of limitation under this subsection.” 28
U.S.C. § 2244(d)(2). Contrary to Cross-Bey's assertion, this provision does not apply
to the case at hand. Cross-Bey’s state court applications for collateral review were

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not pending during the relevant time period. See Gray v. Gammon, 283 F.3d 917,
918 (8th Cir.) (holding that a state court action must have been pending from April
24, 1996, to April 24, 1997, to toll the limitations), cert. denied, 123 S. Ct. 216
(2002). Only Cross-Bey’s initial federal habeas petition, now a nullity, was pending
during that time.

       Because of recent Supreme Court precedent, Cross-Bey's initial federal habeas
petition cannot be the basis for statutory tolling. Subsequent to the district court’s
decision to toll in this case, the Supreme Court held that the language of the statute,
which permits tolling while “State post-conviction or other collateral review” is
pending, does not permit tolling on the basis of a pending federal habeas corpus
petition. Duncan v. Walker, 533 U.S. 167, 181 (2001). Applying Duncan, Cross-Bey
is not entitled to statutory tolling on the basis of his initial federal habeas petition.

       Cross-Bey asserts that the Duncan case should not be applied retroactively to
him. We disagree. We are bound to apply the Supreme Court's current interpretation
of the tolling statute. While the Supreme Court must expressly make retroactive a
new rule of constitutional law, see Tyler v. Cain, 533 U.S. 656, 662 (2001), when the
Court interprets a federal statute and applies that rule of federal law to the parties
before it, that interpretation “must be given full retroactive effect,” Harper v. Va.
Dep’t of Taxation, 509 U.S. 86, 97 (1993). “A judicial construction of a statute is an
authoritative statement of what the statute meant before as well as after the decision
of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511
U.S. 298, 312-13 (1994). The Supreme Court's interpretation in Duncan leaves no
statutory grounds for tolling in this case.

       There remains yet the possibility of equitable tolling aside from the statutory
tolling provision, which appears to be what the district court tried to do. Because §
2244(d)(1) is a statute of limitations and not a jurisdictional bar, it is subject to
equitable tolling in appropriate circumstances. Kreutzer v. Bowersox, 231 F.3d 460,

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463 (8th Cir. 2000), cert. denied, 534 U.S. 863 (2001). In a concurring opinion in
Duncan, Justice Stevens writes that “neither the Court’s narrow holding, nor anything
in the text or legislative history of AEDPA, precludes a federal court from deeming
the limitations period tolled . . . as a matter of equity.” 533 U.S. at 183 (Stevens, J.,
concurring). Justice Stevens indicated that in his view, equitable considerations may
make it appropriate to "conclude that Congress simply overlooked the class of
petitioners whose timely filed habeas petitions remain pending in district court past
the limitations period, only to be dismissed after the court belatedly realizes that one
or more claims have not been exhausted." Duncan, 533 U.S. at 184 (Stevens, J.,
concurring).

      We are not faced with such a clear-cut situation. In this case, the State put
Cross-Bey on notice of unexhausted state court remedies in its response filed in July
of 1995, before AEDPA was even enacted. Cross-Bey, however, failed to pursue
such remedies during the one-year grace period, and instead kept amending and
pursuing his habeas petition until December of 1997, after the grace-period had
expired. The district court cannot be said to have "belatedly" realized that one or
more claims were not exhausted where Cross-Bey had actual notice prior to AEDPA's
enactment that his petition contained unexhausted claims.

       More importantly, we have held that equitable tolling is proper when there
exist extraordinary circumstances beyond a prisoner’s control that made filing a
timely petition impossible or when the respondent’s conduct has lulled the petitioner
into inaction. Kreutzer, 231 F.3d at 463. We have stated that "[a]ny invocation of
equity to relieve the strict application of a statute of limitations must be guarded and
infrequent, lest circumstances of individualized hardship supplant the rules of clearly
drafted statutes." Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002) (internal
quotations omitted), cert. denied, 2003 WL 660686 (Mar. 3, 2003) (No. 02-8255).
Generally, such circumstances must be external to the petitioner, and we have held,



                                           5
at least in one instance, that even a claim of actual innocence was not sufficient to toll
the statute of limitations. Id. at 976-77.

       This case presents no extraordinary circumstances beyond the prisoner's own
conduct that made it impossible for him to file a timely petition, and nothing in the
respondent’s conduct can be said to have lulled the petitioner into inaction. Cross-
Bey chose to continue prosecuting and amending his mixed habeas petition and did
not seek and receive a voluntary dismissal to exhaust his state court remedies until
eight months after the expiration of the one-year grace period that we have allowed
under AEDPA. Cross-Bey sought a voluntary dismissal without considering what
effect AEDPA’s statute of limitations might have on a refiled § 2254. Had he
dismissed his federal habeas action and returned to state court to exhaust all of his
claims in 1995 (when first put on notice of unexhausted claims), the AEDPA statute
would have been tolled by its own terms until the state courts had finally ruled, and
his second § 2254 would have been timely.

       We have previously held that “[e]ven in the case of an unrepresented prisoner
alleging a lack of legal knowledge or legal resources, equitable tolling has not been
warranted.” Kreutzer, 231 F.3d at 463. We are thus bound by our own precedent to
conclude that Cross-Bey's failure to recognize the importance of the one-year statute
of limitations of § 2244(d)(1) or the legal effect of the voluntary dismissal was not
an extraordinary circumstance beyond Cross-Bey's control that warrants equitable
tolling. Cf. Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998) (holding the
district court was without authority to issue a 90-day stay to permit a habeas
petitioner to exhaust his state court remedies). But cf. Zarvela v. Artuz, 254 F.3d 374,
380 (2d Cir.) (holding that a district court faced with a mixed petition should dismiss
only the unexhausted claims and should grant a stay, with reasonable limitations, on
further proceedings in the federal habeas petition "where an outright dismissal could
jeopardize the timeliness of a collateral attack" (internal quotations omitted)), cert.
denied, 122 S. Ct. 506 (2001). Guided by our circuit's precedent, we conclude that

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Cross-Bey’s lack of understanding of the law and the effect of his voluntary
dismissal, while regrettable, does not amount to an extraordinary circumstance
beyond his control.

                                      III.

      Accordingly, we reverse and remand, directing the district court to dismiss
Cross-Bey’s habeas petition as untimely.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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