                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-1704
                                     ___________

Marsha Sue Burns,                         *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Missouri.
Cindy Prudden;                            *
Jeremiah (Jay) W. Nixon,                  *
                                          *
             Appellees.                   *
                                     ___________

                              Submitted: November 19, 2009
                                 Filed: December 16, 2009
                                  ___________

Before MELLOY, BEAM and GRUENDER, Circuit Judges.
                          ___________

GRUENDER, Circuit Judge.

       Marsha Burns appeals the dismissal of her petition for a writ of habeas corpus
as untimely. The district court held that her petition was filed beyond the one-year
statute of limitations, 28 U.S.C. § 2244(d), and that Burns was not entitled to equitable
tolling of the limitations period because she could not show an “extraordinary
circumstance” that prohibited her from timely filing. We find that our intervening
decision in Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008) (en banc), overruling a
previous en banc decision regarding the calculation of the statute of limitations for
habeas petitions from Missouri, satisfies the “extraordinary circumstance” requirement
for equitable tolling. We therefore reverse and remand.

I.    BACKGROUND

       Burns is currently serving a 110-year sentence after her state court conviction
for statutory sodomy, statutory rape, sexual misconduct and child molestation. She
appealed to the Missouri Court of Appeals, which denied her appeal on June 18, 2002.
She then filed a petition for rehearing in that court, which was denied on July 25,
2002. She did not file a petition for transfer to the Missouri Supreme Court.1 On
November 18, 2002, Burns initiated post-conviction proceedings in Missouri state
court. These proceedings concluded on May 3, 2007.

       Under 28 U.S.C. § 2244(d)(1), a federal petition for habeas corpus must be filed
within one year of “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review.” However, this
one-year statute of limitations is tolled during the time “State post-conviction or other
collateral review” is pending. 28 U.S.C. § 2244(d)(2). At the conclusion of Burns’s
state post-conviction proceedings, her attorney notified her by letter that he could not
continue representing her and that her federal petition for habeas corpus had to be
filed by April 12, 2008. Burns filed her federal habeas petition by placing it in the
prison mail system on April 8, 2008. See Streu v. Dormire, 557 F.3d 960, 962 (8th
Cir. 2009) (noting that the filing date for a prisoner’s habeas position is the date the
petition is given to prison officials for mailing).



      1
       Missouri does not permit direct appeals from the Missouri Court of Appeals
to the Missouri Supreme Court. Instead, a litigant seeking review in the Missouri
Supreme Court must file a petition to transfer the case from the Court of Appeals to
the Supreme Court. If that petition is granted, the Missouri Supreme Court then hears
the case. See Mo. Sup. Ct. R. 83.04.

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       Also on April 8, 2008, this Court issued its decision in Riddle v. Kemna, 523
F.3d 850 (8th Cir. 2008) (en banc). Riddle overruled this court’s previous en banc
decision in Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999) (en banc). Nichols
had held that the statute of limitations for habeas petitions did not begin to run until
90 days after the Missouri Court of Appeals denied an appeal. This 90-day period was
permitted because Nichols held that in that time period, a petitioner could file a
petition for a writ of certiorari in the United States Supreme Court, regardless of
whether the petitioner had filed a petition for transfer to the Missouri Supreme Court.
172 F.3d at 1072. Thus, under Nichols, the statute of limitations for Burn’s federal
habeas petition did not begin to run until 90 days after the denial of her appeal, despite
her failure to file a petition to transfer. Riddle, however, held that the Missouri Court
of Appeals was not the “highest court . . . in which a decision could be had,” 28
U.S.C. § 1257(a), and that the 90-day period to file a petition for a writ of certiorari
therefore was not available where a defendant had not filed a petition for transfer, 523
F.3d at 855. Because Burns did not file a petition for transfer to the Missouri Supreme
Court, under Riddle, the statute of limitations began running immediately upon the
conclusion of her direct appeals process, rather than at the end of the 90-day period
for seeking certiorari, as Nichols had held.

       Based on Riddle, the State filed a motion to dismiss Burns’s habeas petition as
untimely, which the district court granted. The district court applied Riddle and held
that Burns’s petition was untimely. But, the district court noted that under Nichols,
her petition would have been timely. The district court also held that Burns was not
entitled to equitable tolling of the statute of limitations because she could not establish
that an “extraordinary circumstance” prevented her from timely filing her petition.
The district court granted Burns a certificate of appealability on the question of
whether she was entitled to equitable tolling. Burns then filed this appeal.




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II.   DISCUSSION

       We review de novo a district court’s denial of equitable tolling of the statute of
limitations for a petition for a writ of habeas corpus. Earl v. Fabian, 556 F.3d 717,
722 (8th Cir. 2009). “Generally, a litigant seeking equitable tolling bears the burden
of establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Riddle, 523 F.3d at 857
(quoting Walker v. Norris, 436 F.3d 1026, 1032 (8th Cir. 2006)). We begin with the
“extraordinary circumstance” requirement, since the district court denied Burns
equitable tolling on that ground. The State offers two arguments for why the Riddle
decision was not an extraordinary circumstance for Burns. First, the State argues that
Burns should have foreseen that Nichols was incorrectly decided and, therefore,
should have filed her petition within the shorter time frame that Riddle eventually
announced. Second, the State argues that Burns’s petition was untimely even under
Nichols, because the conclusion of direct review occurred when the Missouri Court
of Appeals denied her direct appeal, not thirty-seven days later when it denied her
petition for rehearing. If the period for seeking certiorari began at this earlier date,
Burns’s petition would be untimely even under Nichols. Circuit precedent forecloses
both arguments.

       The State’s first argument lacks merit. Riddle itself is directly contrary to the
State’s position. “The abrogation of an en banc precedent is an extraordinary
circumstance, external to [the petitioner] and not attributable to him.” Riddle, 523
F.3d at 857. In subsequent cases we have repeatedly held that habeas petitioners
satisfy the “extraordinary circumstance” requirement where Riddle rendered their
petitions untimely. See, e.g., Shelton v. Purkett, 563 F.3d 404, 407 (8th Cir. 2009),
cert. denied, 558 U.S. ---, No. 09-5542 (Nov. 30, 2009); Streu v. Dormire, 557 F.3d
960, 968 (8th Cir. 2009); Bishop v. Dormire, 526 F.3d 382, 384-85 (8th Cir. 2008).
The State cites no authority for the proposition that courts should demand pro se



                                          -4-
petitioners to anticipate that a court will overrule established law. We therefore reject
the State’s first argument.

        In the alternative, the State argues that Riddle’s overruling of Nichols was
irrelevant to Burns’s petition because her petition was untimely even under Nichols.
This argument hinges on the State’s claim that the 90-day period for filing a petition
for a writ of certiorari from the United States Supreme Court began running after the
denial of Burns’s initial appeal, not after the denial of her petition for rehearing of that
denial. However, our post-Riddle cases have held that “[u]nder Nichols, . . . the
statute of limitations would have begun running 90 days after the court of appeals
denied rehearing.” Streu, 557 F.3d at 968 (emphasis added); see also Shelton, 563
F.3d at 407 (“Under Nichols, [Shelton’s] AEDPA one-year statute of limitations clock
did not begin to run until . . . ninety days after the last entry of judgment [denying
rehearing] on the direct appeal was issued.” (emphasis added)). Indeed, if the State’s
argument were correct that the 90-day period begins running from this earlier date, we
could not have held that the petition in Shelton would have been timely under Nichols.
See 563 F.3d at 407.2 United States Supreme Court Rule 13.3 confirms this result:
“[I]f a petition for rehearing is timely filed in the lower court . . . , the time to file the
petition for a writ of certiorari . . . runs from the date of the denial of rehearing . . . .”
Thus, we also find that the State’s second argument is meritless.

      Burns has therefore established the “extraordinary circumstance” requirement
for equitable tolling. The district court made no findings related to the other

       2
        The difference between the dates when the statute of limitations begins to run
under Nichols and Riddle will generally be fewer than 90 days. Under Riddle, if a
defendant does not file a petition for transfer to the Missouri Supreme Court, the end
of the direct appeals process is the date the Missouri Court of Appeals issues its
mandate. 523 F.3d at 856. However, the 90-day period for petitioning for a writ of
certiorari with the U.S. Supreme Court begins to run, not from the date the mandate
issued, but from the earlier date of the final order denying the appeal. See Streu, 557
F.3d at 968; U.S. Sup. Ct. R. 13.3.

                                             -5-
requirement: whether Burns had been diligently pursuing her rights. Burns points to
the letter from her attorney as evidence of her diligence. We have previously noted
the relevance of such advice from counsel in examining the diligence requirement.
Riddle, 523 F.3d at 857. As in Riddle, Burns “may receive the benefit of equitable
tolling if [s]he can establish that a court’s conduct ‘lulled [her] into inaction through
reliance on that conduct.’” See id. at 858 (quoting United States v. Hernandez, 436
F.3d 851, 858 (8th Cir. 2006)). However, because diligence is a fact-intensive
question, we decline to rule on it in the first instance here. See id.; Bishop, 526 F.3d
at 384-85. We therefore remand this case to the district court for a determination of
whether Burns diligently pursued her rights during the time period in question.

III.   CONCLUSION

      For the foregoing reasons, we reverse the district court’s holding that Burns did
not satisfy the “extraordinary circumstance” requirement for equitable tolling and
remand for further proceedings consistent with this opinion.
                       ______________________________




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