       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2     Abela v. Martin                              No. 00-2430
   ELECTRONIC CITATION: 2003 FED App. 0374P (6th Cir.)
               File Name: 03a0374p.06                                        _________________
                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                         ARGUED: James Sterling Lawrence, Detroit, Michigan, for
              FOR THE SIXTH CIRCUIT                      Appellant. William C. Campbell, OFFICE OF THE
                _________________                        ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                                         ON BRIEF: James Sterling Lawrence, Detroit, Michigan,
KEVIN MARK ABELA ,                X                      for Appellant. William C. Campbell, OFFICE OF THE
         Petitioner-Appellant, -                         ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                   -
                                   -  No. 00-2430          MARTIN, J., delivered the opinion of the court, in which
           v.                      -                     DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ.,
                                    >                    joined. SILER, J. (pp. 16-18), delivered a separate dissenting
                                   ,                     opinion, in which BOGGS, C. J., BATCHELDER,
WILLIAM MART IN , Director,        -
Michigan Department of                                   GIBBONS, and ROGERS, JJ., joined.
                                   -
Corrections,                       -                                         _________________
        Respondent-Appellee. -
                                   -                                             OPINION
                                  N                                          _________________
      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.       BOYCE F. MARTIN, JR., Circuit Judge. This action
   No. 99-72095—Robert H. Cleland, District Judge.       arises from a Michigan manslaughter conviction and
                                                         subsequent petition for a writ of habeas corpus pursuant to 28
               Argued: March 26, 2003                    U.S.C. § 2254. The district court found the habeas petition
                                                         timely filed but denied it on the merits. Kevin Mark Abela
         Decided and Filed: October 22, 2003             appealed that denial. A panel of this court heard argument in
                                                         this case, but it declined to reach the merits. The panel held
Before: BOGGS, Chief Circuit Judge; MARTIN, SILER,       that under this court’s rule in Isham v. Randle, 226 F.3d 691
  BATCHELDER, DAUGHTREY, MOORE, COLE,                    (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001), Abela’s
 CLAY, GILMAN, GIBBONS, and ROGERS, Circuit              petition was not timely because the statue of limitations was
                     Judges.                             not tolled by Abela’s petition for writ of certiorari from the
                                                         United States Supreme Court following post-conviction
                                                         litigation in state court. The panel held that Abela’s habeas
                                                         petition was barred by the statute of limitations set forth in 28
                                                         U.S.C. § 2244(d)(1). A majority of the active judges of this
                                                         court having agreed to rehear the case en banc, we now hold
                                                         that Abela’s petition was timely filed.

                           1
No. 00-2430                            Abela v. Martin     3    4     Abela v. Martin                               No. 00-2430

   Abela was convicted by a jury of voluntary manslaughter      December 28, 2000, the district court denied Abela’s motion
and carrying a concealed weapon on July 24, 1991. He was        for a certificate of appealability.
sentenced to a term of seven to fifteen years for voluntary
manslaughter and a concurrent sentence of forty months to         Abela appealed his denial of the motion to this court. We
five years for carrying a concealed weapon.                     granted his certificate of appealability on the issues before us
                                                                on April 20, 2001.
  Abela appealed his conviction on February 17, 1992, by
raising three issues in the Michigan Court of Appeals. The        Between August 20, 1996, and May 28, 1998, Abela sought
Michigan Court of Appeals affirmed Abela’s conviction and       state collateral relief in the Michigan trial, appellate, and high
sentence in an unpublished disposition. People v. Abela, No.    courts. The limitations period was clearly tolled during this
144005 (Mich. Ct. App. July 22, 1994). The Michigan             period because Abela’s state collateral relief motions were
Supreme Court denied Abela’s delayed application for leave      pending in the various state courts. See Carey v. Saffold, 536
to appeal these issues. People v. Abela, No. 100783 (Mich.      U.S. 214, 220 (2002). In Carey, the Court held that “until the
Mar. 31, 1995).                                                 application has achieved final resolution through the State's
                                                                post-conviction procedures, by definition it remains
   On August 20, 1996, Abela filed a motion for relief from     ‘pending.’” Id. Thus, the key issue before us today is
judgment in the Oakland County Circuit Court, raising six       whether the one-year statute of limitations applicable to
claims. The motion was denied “for lack of merit on the         federal habeas corpus petitions is also tolled during the period
grounds presented.” People v. Abela, No. 90-101083              in which a petitioner may seek, and the Supreme Court
(Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the       considers whether to grant, certiorari review of the denial of
same six issues on appeal to the Michigan Court of Appeals,     the petitioner’s state collateral relief motion.
which also denied leave to appeal and a motion to remand.
People v. Abela, No. 200930 (Mich. Ct. App. July 22, 1997).       Title 28 U.S.C. § 2244(d)(1) provides a one-year period of
On August 9, 1997, Abela again raised these six issues in his   limitations for people “in custody pursuant to the judgment of
delayed application for leave to appeal to the Michigan         a State court” to file an application for a writ of habeas
Supreme Court, which likewise denied his petition. People       corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of
v. Abela, No. 110260 (Mich. May 28, 1998). On August 3,         this one-year period as follows: “The time during which a
1998, Abela filed a petition for certiorari with the United     properly filed application for State post-conviction or other
States Supreme Court, which was denied on October 19,           collateral review with respect to the pertinent judgment or
1998. Abela v. Michigan, 525 U.S. 948 (1998).                   claim is pending shall not be counted toward any period of
                                                                limitation under this subsection.”
  On April 26, 1999, before his parole term had ended, Abela
sought a writ of habeas corpus pursuant to section 2254,          For prisoners whose convictions became final prior to
raising the same claims as in his motion for relief from        April 24, 1996, the effective date of the Anti-Terrorism and
judgment (except for his claim regarding the trial court’s      Effective Death Penalty Act, the one-year limitations period
decision to reconsider its dismissal of the concealed weapon    runs against them as of that date. Austin v. Mitchell, 200 F.3d
charge). The district court issued a memorandum opinion and     391, 393 (6th Cir. 1999). Abela’s judgment of conviction
denied the petition for habeas relief on October 31, 2000. On   became final prior to April 24, 1996, so his one-year
                                                                limitations period began running on that date.
No. 00-2430                              Abela v. Martin       5    6      Abela v. Martin                             No. 00-2430

   The Supreme Court recently concluded that a federal              seeking certiorari in the United States Supreme Court is not
habeas corpus petition does not constitute “State post-             a mandatory part of state court review, as it is not a
conviction or other collateral review” in order to toll the one-    prerequisite to pursuing habeas corpus. Fay v. Noia, 372 U.S.
year limitations period pursuant to section 2244(d)(2).             391, 435 (1963). Finally, we concluded that differences in
Duncan v. Walker, 533 U.S. 167, 182 (2001). Significantly,          section 2244(d)(1)(A) and section 2244(d)(2) suggest that
for our purposes, the Court construed the phrase “State post-       Congress did not intend section 2244(d)(2) tolling to apply to
conviction or other collateral review” to mean “State post-         potential Supreme Court review. Isham, 226 F.3d at 695.
conviction [review]” and “other State collateral review.” Id.       Specifically, section 2244(d)(1)(A) provides that the one-year
at 175-76. Accordingly, the section 2241(d)(1) limitations          limitations period begins to run after “the date on which the
period is not tolled while federal habeas corpus proceedings        judgment became final by the conclusion of direct review or
are pending, because federal habeas proceedings are neither         the expiration of the time for seeking such review,” whereas
“State post-conviction” nor “other State collateral review.”        Congress neglected to use similar language in section
Id. at 181-82. Thus, the more narrow question presented here        2244(d)(2). Id.
is whether a petition for writ of certiorari to the Supreme
Court may constitute a “properly filed” and “pending”                 The Supreme Court has decided cases since Isham that cast
application for “State post-conviction [review]” or “other          that case in a different light. As to Isham’s first rationale,
State collateral review” so as to toll the section 2244(d)(1)       Duncan confirmed our interpretation that the word “State” in
limitation period.                                                  section 2244(d)(2) modifies “post-conviction or other
                                                                    collateral relief.” 533 U.S. at 175-76. As to Isham’s second
  This Court’s pre-Duncan decision in Isham v. Randle, 226          rationale, that petitioning for certiorari on the underlying
F.3d 691 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001),       conviction is not required in order to seek habeas corpus
upon which the panel opinion relied, dealt with the situation       review, the Supreme Court’s recent decision in Clay v. United
where a petitioner could have sought, but did not seek,             States, 123 S. Ct. 1072, 1075, __ U.S. __ (2003), offers an
certiorari review of his Ohio collateral review motion. We          analogy for the question before us. In that case, the Court
held that “the one year limitations period is not tolled during     determined that a federal criminal conviction becomes final,
the ninety days in which defendant could have petitioned the        for the purposes of calculating the one-year time period in
Supreme Court for a writ of certiorari . . . .” Id. at 692.         which to move to vacate pursuant to 28 U.S.C. § 2255, when
                                                                    the time expires for filing a petition for certiorari to contest
   First, we reasoned, based on the statute’s plain language,       the federal appellate court’s affirmance of conviction. Id. at
the word “State” in section 2244(d)(2) modifies “post-              1075. The Court discussed the meaning of finality, id. at
conviction or other collateral relief.” Id. at 695. This court      1076:
concluded that “[a] petition for certiorari to the United States
Supreme Court is not ‘state post-conviction relief.’ Neither            Here, the relevant context is postconviction relief, a
is such a petition ‘other state collateral relief.’” Id. Thus, we       context in which finality has a long-recognized, clear
decided, as had the Tenth Circuit, that “a petition for writ of         meaning: Finality attaches when this Court affirms a
certiorari to the United States Supreme Court is ‘simply not            conviction on the merits on direct review or denies a
an application for state review of any kind.’” Id. (citing Rhine        petition for a writ of certiorari, or when the time for
v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999)). We also                filing a certiorari petition expires. See, e.g., Caspari v.
reasoned that our holding was bolstered by the fact that                Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d
No. 00-2430                              Abela v. Martin       7    8    Abela v. Martin                             No. 00-2430

  236 (1994); Griffith v. Kentucky, 479 U.S. 314, 321, n. 6,        2001). Other circuits, relying on Rhine, have reached the
  107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Barefoot v.                 same conclusion with respect to petitioners who had not
  Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d            actually sought certiorari review—the scenario presented in
  1090 (1983); United States v. Johnson, 457 U.S. 537,              Isham. See Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.
  542, n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982);                 2001); Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001);
  Linkletter v. Walker, 381 U.S. 618, 622, n. 5, 85 S.Ct.           Coates v. Byrd, 211 F.3d 1225, 1227(11th Cir. 2000); Ott v.
  1731, 14 L.Ed.2d 601 (1965).                                      Johnson, 192 F.3d 510, 513 (5th Cir. 1999); see also Isham,
                                                                    226 F.3d 691.
Further, the Court noted that “[t]he Courts of Appeals have
uniformly interpreted ‘direct review’ in § 2244(d)(1)(A) to           Until recently the Third Circuit distinguished situations
encompass review of a state conviction by this Court.” Clay,        where certiorari is actually sought from those where it is not.
123 S. Ct. at 1077, n.3 (citations omitted). The reasoning          In particular, in 1999, the Third Circuit concluded that the
underlying the Court’s decision in Clay is analogous to the         limitations period was tolled during the period where a
situation before us. The Supreme Court’s direct review of a         petitioner actually sought certiorari. See Morris v. Horn, 187
federal criminal conviction is not identical to its review of a     F.3d 333, 336-37 (3d Cir. 1999). However, subsequent to the
state habeas petition, but in each situation the decision of the    decision in Morris, the Third Circuit concluded that the
federal appellate court and the highest court in the state,         ninety-day period for seeking certiorari review in the
respectively, is not final, if certiorari is sought, until the      Supreme Court should not be considered to toll the limitations
Supreme Court denies certiorari, and, if certiorari is not          period under section 2244(d)(2) where the petitioner has not
sought, until the period for seeking certiorari expires.            actually sought certiorari. See Nara v. Frank, 264 F.3d 310,
                                                                    318 & n.4 (3d Cir. 2001); Stokes v. Dist. Attorney of the
  Finally, as to Isham’s third rationale, highlighting the          County of Phila., 247 F.3d 539 (3rd Cir. 2001). This
difference in language between sections 2244(d)(1)(A) and           distinction relied on the use of the word “pending” in section
2244(d)(2) as supportive of the narrow reading of the latter,       2244(d)(2), concluding that where no petition for certiorari is
the Supreme Court recently said, “‘The . . . presumption--that      actually filed, nothing can be “pending” under section
the presence of a phrase in one provision and its absence in        2244(d)(2). Nara, 264 F.3d at 318. Recently, however, the
another reveals Congress’[s] design--grows weaker with each         Third Circuit abandoned this distinction altogether, joining
difference in the formulation of the provisions under               the majority of the circuits. See Miller v. Dragovich, 311
inspection.’” Clay, 123 S. Ct. at 1079 (citing Columbus v.          F.3d 574 (3d Cir. 2002). The court said, “To avoid Duncan
Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435-36             we would have to hold that Congress intended to distinguish
(2002)).                                                            between the exercise of Supreme Court certiorari jurisdiction
                                                                    and federal habeas corpus jurisdiction in enacting section
  Isham, nevertheless, is in line with the majority of our sister   2244(d)(2).” Id. at 579.
circuits. The Tenth Circuit concluded, using broad language,
that section 2244(d)(2) did not toll the limitations period           The Second and Seventh Circuits adopted a narrow version
where the petitioner had actually sought certiorari in the          of the approach taken in Isham, Coates, Ott, Miller, and
Supreme Court. Rhine, 182 F.3d at 1156. The Fourth Circuit          Rhine, limiting their holdings to a rule that the period during
agreed where, as here, the petitioner had actually sought           which certiorari may be sought cannot toll the limitations
certiorari. Crawley v. Catoe, 257 F.3d 395, 399-400 (4th Cir.       period where certiorari is not actually sought. See Gutierrez
No. 00-2430                              Abela v. Martin         9   10    Abela v. Martin                               No. 00-2430

v. Schomig, 233 F.3d 490, 491-92 (7th Cir. 2000); Smaldone             issues reviewable in the United States Supreme Court, so
v. Senkowski, 273 F.3d 133, 137-38 (2d Cir. 2001). The                 can state habeas proceedings. A state criminal proceeding
Seventh Circuit focused on whether there was any “properly             . . . is still “pending” even though the state courts are
filed” application where the petitioner had not sought                 finished with it, until any petition filed is finally decided.
certiorari to the United States Supreme Court, concluding that         Similarly, if there is a certiorari petition pending to
where nothing had been filed, nothing could be “properly               review the validity of the state’s denial of such an
filed” under section 2244(d)(2). Gutierrez, 233 F.3d at 492.           application for state post-conviction review, the
The Seventh Circuit also concluded that where no petition for          application is still “pending”--that is, not finally decided.
certiorari had been filed, nothing could be “pending” under            The application does not thereby stop being a state
section 2244(d)(2). Id. Ultimately, however, the Seventh               habeas proceeding or turn into a federal rather than a
Circuit declined to address whether “State post-conviction”            state application; it is just not finally decided yet.
review or “other state collateral review” may include a
“properly filed,” “pending” petition for certiorari to the           We agree. In a slightly different context, the Supreme Court,
United States Supreme Court. Id. The Second Circuit,                 in Carey v. Saffold, discussed the word “pending”: “The
likewise faced with a situation where the petitioner had not         dictionary defines ‘pending’ (when used as an adjective) as
sought certiorari, adopted the reasoning of the Seventh              ‘in continuance’ or ‘not yet decided.’ It similarly defines the
Circuit, stating, “Our holding is limited to the facts of this       term (when used as a preposition) as ‘through the period of
case, and we do not reach the questions that would have been         continuance . . . of,’ ‘until the . . . completion of.’” 536 U.S.
raised if a certiorari petition had been properly filed.”            at 219 (citing Webster’s Third New International Dictionary
Smaldone, 273 F.3d at 138. The Second and Seventh Circuits           1669 (1993)). We believe that a petition for certiorari from a
continue to distinguish between situations in which a petition       state court’s denial of an application for habeas corpus
for certiorari review of the denial of state habeas relief is        necessitates that the application is still pending, because it is
actually sought and those cases where it is not.                     “‘in continuance’ or ‘not yet decided.’” Id. The focus of
                                                                     section 2244(d)(2) is not on the court in which the application
   Although we find this distinction no longer tenable, we take      is pending but on the application itself. As long as the
each situation in turn. First, as to the question presented here,    petition for certiorari involves an application for state court
where a petition for certiorari was actually filed, we find          relief, section 2244(d)(2) requires that the statute of
instructive the reasoning of the dissent in White v. Klitzkie,       limitations be tolled. The court where the application is
281 F.3d 920 (9th Cir. 2002). In dissent in White, Judge             pending is irrelevant. While Duncan clarified that “State”
Berzon reasons that “[t]he statute surely tolls only where there     modifies “review,” it nowhere asserts that “State” also
is a ‘properly filed application for State post-conviction or        modifies “pending.”
other collateral review.’ But the question is not whether
White’s application fits this description . . . but whether that       Judge Berzon’s dissent in White continues, 281 F.3d. at
application could still be ‘pending’ once the state courts are       926-27:
finished with it.” Id. at 926 (Berzon, J., dissenting). She goes
on to say, id.,                                                          Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150
                                                                       L.Ed.2d 251 (2001), does not suggest a different
  [W]hile the application is one for State post- conviction            interpretation of § 2244(d)(2). That case based its
  relief, just as state criminal proceedings can raise federal         holding that a federal habeas petition does not toll the
No. 00-2430                               Abela v. Martin      11    12    Abela v. Martin                              No. 00-2430

  limitations period on the ground “that an application for          many petitioners will be put in this position, because the
  federal habeas corpus review is not an ‘application for            federal habeas court could simply stay the habeas motion
  State post-conviction or other collateral review’ within           pending the Supreme Court’s resolution of the certiorari
  the meaning of 28 U.S.C. § 2244(d)(2).” Id. at 2129. But           petition, see Miller, 311 F.3d at 580-81, we do not believe it
  an application for state habeas review, as opposed to an           is appropriate or necessary to read the federal statutes to
  application for federal habeas review, is “an application          dictate such a rule.
  for State post-conviction review or other collateral
  review,” regardless of whether that application is being              We now turn to the question directly at issue in Isham,
  considered on appeal by a state supreme court or by the            although not presented here, whether or not the period for
  United State Supreme Court on certiorari. Thus, unlike             filing certiorari tolls the statute of limitations where no
  the reading of § 2244(d)(2) rejected in Duncan, the                petition is actually filed. Once a state supreme court has ruled
  interpretation I suggest gives full meaning to the word            on a petitioner’s application for state post-conviction relief,
  “State,” but recognizes that the United States Supreme             the petitioner has ninety days to decide whether to petition for
  Court . . . can consider state . . . cases when they raise         a writ of certiorari. Sup. Ct. R. 13. Section 2244(d)(2)
  federal issues. Otherwise, what is the United States               provides that the one-year statute of limitations is tolled while
  Supreme Court hearing when it considers a state habeas             a properly filed application for state post-conviction relief is
  petition on certiorari? Not an application for federal             “pending,” 28 U.S.C. § 2244(d)(2), but it offers no clue as to
  post-conviction or other collateral review.                        whether an application is “pending” during the ninety-day
                                                                     period for seeking Supreme Court review.                  If that
We agree with Judge Berzon’s reasoning.                              determination depends on whether a petitioner ultimately
                                                                     applies for a writ of certiorari, then courts and litigants can
   Furthermore, to require a petitioner to file his petition         never know whether the statute of limitations is running
seeking federal habeas corpus relief before he has sought            during the period following their state post-conviction review;
certiorari to the Supreme Court does not promote the finality        that determination will depend on events that are to happen
of state court determinations and encourages the simultaneous        down the road.
filing of two actions seeking essentially the same relief. This
disposition would also raise concerns about comity and                 Indeed, petitioners who are equally diligent may face
exhaustion. If we chose to follow the panel decision in this         drastically different fates. Imagine, for example, two state
case, a prisoner could file his petition for writ of certiorari to   inmates who file their petitions for state post-conviction relief
the United States Supreme Court on the day the highest state         after three hundred days in their limitation period have run.
court denies him collateral relief, but if the United States         Sixty-five days after their applications for state post-
Supreme Court takes more than a year to decide his case, the         conviction relief are denied, having passed through the
prisoner will be required to file a federal habeas petition          highest appellate court in the state, their limitations period
before the Supreme Court had an opportunity to rule on his           under section 2244(d)(1) will expire. On the seventieth day,
motion for state collateral relief. We doubt that Congress           each proceeds to another stage in the process: one files a
intended, in the Anti-Terrorism and Effective Death Penalty          petition for habeas corpus relief in federal district court, and
Act, to force prisoners to choose between federal habeas relief      because that petition is untimely, the petition is denied; the
and seeking certiorari to the Supreme Court, or to do both           other petitions for a writ of certiorari from the United States
simultaneously. While as a practical matter it is unlikely that      Supreme Court, and not only is the petition accepted for
No. 00-2430                               Abela v. Martin      13    14   Abela v. Martin                              No. 00-2430

filing, but also the petitioner still has sixty-five days left to    period has expired, the argument goes, it is no longer
file a habeas corpus petition after the petition for a writ of       “pending” once the state court has actually issued an order.
certiorari is denied. That is, the petition for writ of certiorari   This argument overlooks the almost tautological point that a
would have retroactively tolled the second petitioner’s              case becomes “final” once it is no longer “pending”; they are
limitations period, protecting his ability to seek section 2254      but two sides of the same coin. Moreover, in Carey, the
relief. The first petitioner, who was equally diligent — and         Supreme Court rejected the notion that a case is only
who chose what is likely a more efficient route to federal           “pending” for the purposes of section 2244(d)(2) until the
habeas review — will be out of luck. Furthermore, a rule             court issues its order. 536 U.S. at 219-20. The Court there
limiting the tolling to only those habeas corpus petitioners         concluded that an application for state post-conviction relief
who actually file for certiorari would create a lock-in effect       is pending even during the period between one state court’s
for the prison inmate who prepares a certiorari petition for         decision and the litigant’s appeal to the next level.
sixty-nine days, but then changes tack on the seventieth day,        Accordingly, “pending” should not be construed to refer only
deciding that it would be wiser strategically to file the habeas     to the time a court takes to evaluate a case at some stage of
petition in the district court. Under the rule applied by a          the post-conviction review process; “pending” also refers to
majority of our sister circuits, the inmate has to file a            the time allowed an inmate to file a certiorari petition
protective certiorari petition in order to preserve the              regardless of whether such filing actually occurs.
opportunity to later file a habeas petition, generating an
unnecessary and quite often futile hoop through which the              A statute of limitations should be clear. At any given point,
inmate must hop. Failure to file such a protective certiorari        courts and litigants should be able to determine whether the
petition because of a tactical change then retroactively             limitations period has begun, is running, is tolled, or has
obliterates the sixty-five days the inmate had left, even though     expired; whether a limitations period is running should not
the clock was not actually ticking during the sixty-nine days        depend on events that happen only at a later date. Whether
spent preparing the certiorari petition to the Supreme Court.        the limitations period is tolled during the ninety days that a
                                                                     petitioner has to seek certiorari should not depend on whether
   It makes little sense to allow events that happen after a         the petitioner actually decides to seek certiorari.
limitations period appears to have expired to retroactively toll
it, and the Supreme Court has explicitly rejected such a               Because Clay explicitly holds that federal petitioners are to
suggestion for collateral attacks by federal prisoners. In Clay,     receive the benefit of the ninety-day certiorari period even
the Supreme Court held that the limitations period for a             when they seek no such relief, because Carey advances a
section 2255 petition does not run during the ninety-day             broad definition of when a petition for state relief is
period for seeking certiorari, even when the petitioner              “pending” under section 2244(d)(2), and because the contrary
ultimately does not seek Supreme Court review. 123 S. Ct. at         view leads to an unstable limitations scheme prone to
1075. The only possible basis for distinguishing the Court’s         subsequent revision, we hold that under section 2244(d)(2),
interpretation in Clay is that whereas there, the Court              the statute of limitations is tolled from the filing of an
determined that a case does not become “final” in the                application for state post-conviction or other collateral relief
postconviction context until the conclusion of the time for          until the conclusion of the time for seeking Supreme Court
seeking Supreme Court review, here, a court would be asked           review of the state’s final judgment on that application
to determine when an application is no longer “pending.”             independent of whether the petitioner actually petitions the
Although a case may not be “final” until the ninety-day              Supreme Court to review the case.
No. 00-2430                             Abela v. Martin     15    16   Abela v. Martin                              No. 00-2430

  For the foregoing reasons, we AFFIRM the judgment of the                             _______________
district court with respect to the timeliness of Abela’s habeas
petition, and the case is otherwise returned to the original                              DISSENT
panel for consideration on the merits.                                                 _______________

                                                                     SILER, Circuit Judge, dissenting. The position espoused
                                                                  by the majority sounds good and provides an easy way to
                                                                  determine whether the one-year limitations period under 28
                                                                  U.S.C. § 2244(d)(1) is tolled. However, it is a position which
                                                                  has been repudiated by all other Circuits which have
                                                                  interpreted this statute and is a stretch of the law. After all,
                                                                  “Our task is to construe what Congress has enacted. We
                                                                  begin, as always, with the language of the statute.” Duncan
                                                                  v. Walker, 533 U.S. 167, 172 (2001).
                                                                     As the majority correctly analyzes the issue, it is whether
                                                                  the time under 28 U.S.C. § 2244(d)(2) for tolling purposes
                                                                  also includes the time between the denial of petitioner’s state
                                                                  post-conviction claim and the denial of his petition for a writ
                                                                  of certiorari on that claim before the Supreme Court. The
                                                                  majority holds that this time is also included. We previously
                                                                  held in Isham v. Randle, 226 F.3d 691, 692 (6th Cir. 2000),
                                                                  cert. denied, 531 U.S. 1201 (2001), that the time was not
                                                                  included for tolling purposes when the petitioner did not seek
                                                                  certiorari review of his collateral attack. I would extend that
                                                                  holding from Isham to the present situation, where the
                                                                  petitioner did file for certiorari to the Supreme Court. In
                                                                  addition to refusing to apply Isham’s reasoning to
                                                                  circumstances in which the petitioner has filed for certiorari
                                                                  review following exhaustion of post-conviction relief, the
                                                                  majority of this court, while conceding that the issue is not
                                                                  properly before us, nonetheless suggests in dicta that Isham
                                                                  itself is not good law. Rather than casting doubt upon Isham,
                                                                  I would extend its holding to the present situation, in which
                                                                  the petitioner did file for certiorari to the Supreme Court.
                                                                  Thus, I would find that the time between May 28, 1998, when
                                                                  the Michigan Supreme Court denied leave on Abela’s motion
                                                                  for relief from judgment until October 19, 1998, when the
                                                                  Supreme Court denied certiorari, is not excludable time for
No. 00-2430                               Abela v. Martin      17    18    Abela v. Martin                              No. 00-2430

tolling under 28 U.S.C. § 2244(d)(2).          The reasons are       decisions in Clay v. United States, 123 S. Ct. 1072 (2003);
explained herein.                                                    and Duncan, 533 U.S. at 167, do not affect our decision in
                                                                     Isham.
  As the majority explains, there is no Circuit authority in
Abela’s favor. Morris v. Horn, 187 F.3d 333, 337 (3d Cir.               More specifically, Duncan construed § 2244(d)(2) in the
1999), is the only case to hold that the statute of limitations is   same way that Isham did, that is, that “State” modified both
tolled under § 2244(d) during the pendency of a petition for         “post-conviction” and “other collateral review.” Duncan,
certiorari, following the denial of post-conviction relief.          533 U.S. at 172. Likewise, Clay followed the majority rule
However, that case has been repudiated in Miller v.                  from the Circuits that § 2255 is interpreted to mean that “[A]
Dragovich, 311 F.3d 574, 580 (3d Cir. 2002). The majority            judgment of conviction becomes final when the time expires
has recognized the plethora of authority in agreement with           for filing a petition for certiorari contesting the appellate
Isham and Miller. See, e.g, Bunney v. Mitchell, 241 F.3d             court’s affirmation of the conviction.” Clay, 123 S. Ct. at
1151, 1155-56 (9th Cir.), withdrawn on other grounds, 249            1075. However, that case involved the issue of when the
F.3d 1188 (9th Cir. 2001); Crawley v. Catoe, 257 F.3d 395,           limitations began to run on a federal conviction, not a state
399-400 (4th Cir. 2001); Snow v. Ault, 238 F.3d 1033, 1035           collateral attack. And, although that decision states that “[t]he
(8th Cir. 2001); Coates v. Byrd, 211 F.3d 1225, 1227 (11th           Courts of Appeals have uniformly interpreted ‘direct review’
Cir. 2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999);       in § 2244(d)(1)(A) to encompass review of a state conviction
Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999).                by this Court,” id. at 1077 n.3, it never takes up the issue we
                                                                     are facing, the interpretation of § 2244(d)(2).
   The authority the majority here uses to justify its decision
is from a dissent by Judge Berzon in White v. Klitzkie, 281            Therefore, I would continue to follow Isham in finding that
F.3d 920, 926 (9th Cir. 2002) (Berzon, J., dissenting). But          “the denial of state post-conviction relief becomes final. . .
the majority in that case very clearly held that “[a] petition for   after a decision by the state’s highest court,” id. at 695, and I
a writ of certiorari to the United States Supreme Court is           would reverse the judgment of the district court finding
simply not an application for state review.” Id. at 924.             Abela’s habeas corpus petition was timely filed.
  All of these cases follow the same basic reasoning. That is,
they hold that the time under which a petition for certiorari is
or could be filed is not considered the “time during which 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). I would adopt
that reasoning also.
  The plain text of the statute does not suggest otherwise.
Obviously the pragmatic approach has its merits, because it
promotes an efficient administration of habeas corpus cases,
but if Congress sees a need to change the system, it may
amend the statute just as it has in the past. The recent
