                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


RICHARD H. ATKINSON,                  
              Petitioner-Appellant,
                v.
                                                 No. 00-6187
RONALD J. ANGELONE, Director,
VDOC,
             Respondent-Appellee.
                                      
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
            Albert V. Bryan, Jr., Senior District Judge.
                        (CA-99-1481-AM)

                     Argued: October 31, 2000

                     Decided: September 6, 2001

        Before TRAXLER and KING, Circuit Judges, and
     Alexander WILLIAMS, Jr., United States District Judge
       for the District of Maryland, sitting by designation.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: David Bernard Hargett, MORRISSEY & HERSHNER,
P.L.C., Richmond, Virginia, for Appellant. Leah Ann Darron, Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee. ON BRIEF: Mark L. Earley,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee.
2                       ATKINSON v. ANGELONE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).



                              OPINION

PER CURIAM:

   Appellant, Richard H. Atkinson, appeals an order by the district
court dismissing as untimely Appellant’s petition for habeas corpus
filed under 28 U.S.C. § 2254. We affirm the order of the district court.

                                   I

   Appellant, Richard H. Atkinson, was convicted on October 2, 1996
for six counts of malicious wounding and malicious bodily injury in
the Circuit Court of the city of Richmond, Virginia. The Virginia
Supreme Court denied his direct appeal on October 28, 1997. The
ninety-day period in which to appeal the Virginia Supreme Court’s
denial to the United States Supreme Court expired on January 26,
l998. On October 22, l998, Appellant filed a state petition for writ of
habeas corpus in the Virginia Supreme Court. On March 19, l999, the
Virginia Supreme Court dismissed the state petition.

   More than five months later, on September 7, l999, Appellant filed
a petition for writ of habeas corpus in the United States District Court
for the Eastern District of Virginia (Alexandria Division). After toll-
ing the limitation period from October 22, 1998 to March 19, l999
which included the period from the filing of the state petition for
habeas corpus through its denial by the Virginia Supreme Court, the
district court concluded that the petition was filed over thirteen
months since expiration of Appellant’s opportunity to appeal his con-
viction to the United States Supreme Court, or January 26, l998.
Accordingly, the district court dismissed Appellant’s petition as
untimely in accordance with the one year period of limitations pre-
scribed by the Antiterrorism and Effective Death Penalty Act of l996
(AEDPA).
                        ATKINSON v. ANGELONE                          3
                                   II

   The sole issue presented by this appeal is whether the one year
AEDPA time limitation is tolled by the ninety-day certiorari period
following the state court’s dismissal of Appellant’s state petition for
a writ of habeas corpus, when Appellant did not petition for certiorari
to the United States Supreme Court. Resolution of this issue entails
the construction of a statute, hence it is a question of law which we
review de novo.

   The relevant provisions of the AEDPA, 28 U.S.C. § 2244, provide
that:

    (d)(1) A 1-year period of limitations shall apply to an appli-
    cation for writ of habeas corpus by a person in custody pur-
    suant 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. . .

    (2) 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 shall not be
    counted toward any period of limitation under this subsec-
    tion.

28 U.S.C. § 2244(d) (1994) (emphasis added). Thus, the AEDPA, as
set forth under its provisions, limits requests for federal collateral
review of state convictions to one year. The limitation period begins
to run upon the later of (1) the date on which the judgment became
final by the conclusion of direct review or (2) the expiration of time
available to seek direct review of the judgment. However, the statute
provides that the statute of limitations is tolled during the pendency
of a properly filed application for "State post-conviction or other col-
lateral review." 28 U.S.C. § 2244(d)(2). It is upon this phrase in
§ 2244(d)(2) where the dispute centers.
4                       ATKINSON v. ANGELONE
   Appellant, Atkinson, argues that "State post-conviction" refers only
to state post-conviction review while "other collateral review"
includes the prisoner’s right to seek United States Supreme Court
review after the state’s highest supreme court had denied him relief.
Appellee counters that the word "State" modifies both phrases, mean-
ing that "other collateral review" encompasses all forms of state
review only. The parties do not dispute that if Appellant’s interpreta-
tion of § 2244(d)(2) is adopted, his habeas corpus petition to federal
district court would have been timely because the limitation period
would have been tolled an additional ninety (90) days from the Vir-
ginia Supreme Court’s dismissal on March 19, l999 during which
time he could have sought certiorari to the United States Supreme
Court. On the other hand, if the tolling allowance of § 2244(d)(2) is
construed to apply only to state proceedings, Appellant’s federal peti-
tion was untimely.

                                  III

   Although this Circuit had not addressed the precise issue in this
case at the time of argument, Appellant, nevertheless, was confronted
with almost insuperable odds. Every Circuit which has considered the
issue of whether the one-year limitation period under § 2244(d)(2)
included the time in which a defendant could have sought certiorari
to the United States Supreme Court answered it in the negative. See
Bunny v. Mitchell, 241 F.3d 1151, 1156 (9th Cir. 2001); Snow v. Ault,
238 F.3d 1033 (8th Cir. 2001); Isham v. Randle, 226 F.3d 691, 695
(6th Cir. 2000); Coates v. Byrd, 211 F.3d 1225, 1226-27 (11th Cir.
2000); Jones v. Morton, l95 F.3d 153, 158 (3rd Cir. l999); Ott v.
Johnson, 192 F.3d 510, 512-13 (5th Cir. 1999); Rhine v. Boone, 182
F.3d 1153, 1155-56 (10th Cir. 1999). The only Circuit which had
reached a contrary decision was the Second circuit which held that a
federal habeas petition, properly filed under § 2244(d)(2) and pending
in the district court tolled the limitation period. See Walker v. Artuz,
208 F.3d 357 (2nd Cir. 2000), rev’d, Duncan v. Walker, ___ U.S. ___,
121 S. Ct. 2120 (2001).

   Walker has now been reversed by the United States Supreme
Court. In Duncan, the Supreme Court adopted the interpretation now
posited by the Appellee and held that the phrase "other collateral
review" does not include federal relief. 121 S. Ct. at 2126-27. On the
                        ATKINSON v. ANGELONE                           5
contrary, the Court opined that the wording of § 2244(d)(2) "State"
modifies both the phrase "post-conviction review" as well as the
phrase "other collateral review." Id. at 2126-27. Meanwhile, in Craw-
ley v. Cato, ___ F.3d ___, No. 00-6594, 2001 WL 797767 at *4 (4th
Cir. July 16, 2001), this Circuit recently addressed the issue and has
determined that the one-year limitation period under § 2244(d)(2) is
only tolled during the pendency of state proceedings and does not
include the time in which a defendant could have sought certiorari to
the United States Supreme Court. Accordingly, the limitation period
under the statute was not tolled in this case during the period that
Appellant could have filed a petition for a writ of certiorari in the
United States Supreme Court.

                                   IV

   A review of the record indicates that Appellant had one year, or
until January 26, l999, to file his federal habeas corpus petition plus
any tolling period during the pendency of a properly filed application
for state post-conviction or other collateral review. On October 22,
1998, some eight (8) months and twenty-six (26) days after the one
year period commenced, Appellant properly filed for post-conviction
relief, thereby tolling the period. The request for post-conviction
relief was denied on March 19, l999 and the one-year limitation
period (of which nearly nine (9) months had already elapsed) resumed
running. After excluding the tolling period, Appellant had approxi-
mately an additional ninety (90) days, or until on or about June 17,
l999, to file his § 2254 petition in federal court. The petition for fed-
eral habeas corpus relief was not filed until September 7, l999 which
was beyond the one (1) year limitation period under AEDPA.

  Because Appellant did not file his petition under § 2254 within one
year (excluding the tolling period for his properly filed application for
post-conviction relief) his petition was untimely.

                                   V

  For the foregoing reasons, we affirm the district court’s order dis-
missing the petition for habeas corpus as untimely.

                                                            AFFIRMED
