                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-6719



SAMUEL E. HARRIS,

                Petitioner - Appellant,

           v.


DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:04-cv-00070-MHL)


Argued:   March 18, 2008                    Decided:   June 26, 2008


Before MICHAEL and GREGORY, Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Sarah M. Brackney, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Appellant. Alice T. Armstrong, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:
Jeffrey L. Handwerker, ARNOLD & PORTER, L.L.P., Washington, D.C.,
for Appellant. Robert F. McDonnell, Attorney General of Virginia,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Samuel E. Harris, a Virginia state prisoner, appeals the

district court’s dismissal of his petition seeking a writ of habeas

corpus under 28 U.S.C. § 2254.                  The court held that Harris’s

petition    was     filed    outside     the    one-year      limitations       period

established by the Antiterrorism and Effective Death Penalty Act of

1996   (AEDPA).       This    determination       was   based      on    the   court’s

conclusion that a petition for a writ of mandamus that Harris filed

in state court did not qualify as a “properly filed application for

State post-conviction or other collateral review with respect to”

his    underlying    conviction        and,    thus,    did   not       toll   AEDPA’s

limitations period.         See 28 U.S.C. § 2244(d)(2).            We conclude that

the district court erred by not recognizing that the limitations

period was tolled during the pendency of Harris’s state mandamus

petition.     When this tolling is taken into account, his federal

habeas petition is timely.         Accordingly, we reverse and remand for

consideration of the merits of Harris’s petition.



                                         I.

            Following a guilty plea, Harris was convicted of several

felony   charges     in     Virginia    state    court.       He    was    ultimately

sentenced to serve 220 years in prison, with 160 years suspended.

He appealed to the Court of Appeals of Virginia, but that court

rejected his claims on September 13, 2001.                His conviction became


                                          2
final for purposes of AEDPA on October 15, 2001, the day on which

his time for appealing to the Supreme Court of Virginia expired.

See 28 U.S.C. § 2244(d)(1)(A).

           On February 13, 2002, Harris filed a pro se Petition for

Writ of Mandamus in state circuit court.     The petition asserted

that Harris had received ineffective assistance of counsel prior to

his guilty plea, that he would not have pled guilty but for his

counsel’s deficient performance, and that his guilty plea was thus

invalid.   The circuit court dismissed the mandamus petition on

December 6, 2002.1   Meanwhile, on August 8, 2002, Harris filed in

state circuit court a separate pro se Petition of Writ of Habeas

Corpus, which also asserted that his guilty plea was invalid due to

ineffective assistance of counsel.    The circuit court denied this

petition on November 1, 2002.    Harris filed a petition for appeal

of the denial of habeas relief to the state supreme court, which

that court denied on July 21, 2003.

           Harris, still proceeding pro se, filed a petition for a

writ of habeas corpus in U.S. district court on January 18, 2004.

Upon consent of the parties, the case was assigned to a magistrate

judge pursuant to 28 U.S.C. § 636(c)(1).       The state moved to



     1
      Harris also filed a mandamus petition with the state supreme
court on April 25, 2002.    The court dismissed that petition on
September 30, 2002. Because the circuit court mandamus petition
was pending during the entire time the supreme court petition was
pending, there is no reason to separately consider the tolling
effect of the supreme court petition.

                                  3
dismiss Harris’s petition as untimely, and the district court, in

a decision rendered by the magistrate judge, ultimately granted the

state’s    motion   based    on    the   determination        that   the   mandamus

petition Harris filed in state court did not toll the AEDPA

limitations period.        Harris appealed to this court, and we granted

a certificate of appealability on the tolling issue.2



                                         II.

            Under AEDPA a state prisoner has one year to file a

petition for a writ of       habeas corpus in federal court.               28 U.S.C.

§ 2244(d)(1).       This one-year period is tolled while a “properly

filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending.”

§ 2244(d)(2).   In this case the parties agree that Harris’s habeas

petition tolled his one-year period for filing while it was pending

in state court between August 8, 2002, and July 21, 2003.                  However,

even taking this into account, Harris’s federal habeas petition is

untimely   unless    his    mandamus     petition      also    tolled   the   AEDPA

limitations   period.        The   parties     agree    that    if   the   mandamus




     2
      The state argues that we should not address the tolling issue
because in the underlying plea agreement Harris allegedly waived
the right to seek withdrawal of his guilty plea. We disagree. The
scope and validity of the waiver in Harris’s plea agreement relates
to the merits of his ineffective assistance claim and may be
properly addressed in the first instance on remand.

                                          4
petition tolled the limitations period, Harris’s federal habeas

petition is timely.

              Both this court and the Supreme Court of the United

States have set forth parameters for determining whether a state

court filing qualifies as a “properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment” within the meaning of § 2244(d)(2).           We have

held that “the term ‘collateral review’ refers to a proceeding

separate and distinct from that in which the original judgment was

rendered, and in which the petitioner challenges the legality of

the original judgment.”       Walkowiak v. Haines, 272 F.3d 234, 237

(4th   Cir.    2001).   The   Supreme   Court   has   explained   that   an

application for collateral review “is ‘properly filed’ when its

delivery and acceptance are in compliance with the applicable laws

and rules governing filings.”       Artuz v. Bennett, 531 U.S. 4, 8

(2000).   Filing rules include “the form of the document, the time

limits upon its delivery, the court and office in which it must be

lodged, and the requisite filing fee.”      Id.   The Supreme Court has

distinguished these filing rules, or “condition[s] to filing,” from

a separate category of “condition[s] to obtaining relief,” which

includes procedural bars that prevent certain claims from being

raised or considered.     Id. at 10-11.    With respect to the latter

category, the Court has rejected the argument that an application

for relief was not “properly filed” simply because the claims it


                                    5
advanced were procedurally barred.             As the Court explained, “the

question whether an application has been ‘properly filed’ is quite

separate from the question whether the claims contained in the

application are meritorious and free of procedural bar.”                 531 U.S.

at 9; see also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)

(noting that there is an “obvious distinction between time limits,

which go to the very initiation of a petition and a court’s ability

to consider that petition, and the type of ‘rule of decision’

procedural bars at issue in Artuz, which go to the ability to

obtain relief.”)

            Applying these standards to this case, we agree with

Harris that his mandamus petition tolled the AEDPA limitations

period    under   §    2244(d)(2).      The     petition   qualifies      as    an

application for collateral review because it initiated a “separate

and distinct proceeding” and sought to challenge the validity of

the underlying conviction.        See Walkowiak, 272 F.3d at 237.              The

petition was also “properly filed” because it complied with the

“applicable laws and rules governing filing” in that it was timely,

formatted in an acceptable manner, and filed in a court with

jurisdiction      to   consider   the       petition   (even   if   it    lacked

jurisdiction to grant the relief requested).             See Artuz, 531 U.S.

at 8.    Therefore, the requirements for tolling under § 2244(d) are

satisfied.




                                        6
           The arguments against tolling do not withstand scrutiny.

The district court based its decision on the fact that, under

Virginia law, a writ of mandamus will not be granted “when there is

any other adequate legal remedy available to the applicant.”          J.A.

67 (quoting Durkin v. Davis, 538 F.2d 1037, 1042 (4th Cir. 1976)

(quoting Board of Supervisors v. Combs, 169 S.E. 589, 593 (Va.

1933))).     As the district court correctly observed, Harris was

ineligible for mandamus relief because the state provided another

procedural avenue -- habeas corpus -- for him to assert his claim.

Based on this “procedural structure,” the district court concluded

that “a petition for a writ of mandamus, regardless of its content,

does not constitute an application for ‘collateral review with

respect to the pertinent judgment’ under § 2244(d)(2).”           J.A. 68.

The Third Circuit appears to have reached a similar conclusion in

Satterfield v. Johnson, 434 F.3d 185, 192-95 (2006), which held

that a prisoner’s application for extraordinary relief did not toll

the   limitations   period   under   §   2244(d)(2)   in   part    because

Pennsylvania law provided an alternative mechanism as the exclusive

means to collaterally attack a conviction.

           This line of reasoning is inconsistent with Supreme Court

precedent.    In Artuz the Court explicitly rejected the argument

that an application for collateral review “is not ‘properly filed’

for purposes of § 2244(d)(2) unless it complies with all mandatory

state-law procedural requirements that would bar review of the


                                     7
merits of the application.”      531 U.S. at 8.     The Court explained

that a petition can qualify as a “properly filed application” for

collateral review even if the claims contained in the petition lack

merit due to a state law procedural bar; for instance, state law

barred   the   petitioner   in   Artuz   from   raising    a   claim   in   a

postconviction proceeding when that claim had been previously

determined on the merits in a direct appeal.          Id. at 9-11.      The

Virginia rule of law that made mandamus relief unavailable to

Harris, like the rule at issue in Artuz, speaks to the availability

of the relief requested rather than the petitioner’s ability to

initiate the proceedings in the first instance.           For this reason,

the procedural bar that Harris confronted is a “condition to

obtaining relief,” not a “condition to filing,” and thus does not

render his petition improperly filed for purposes of § 2244(d)(2).

In other words, under Artuz the question of whether mandamus relief

was ultimately available to Harris under Virginia law is simply not

relevant to determining whether his application for mandamus relief

tolled the limitations period under § 2244(d)(2).

           The Commonwealth argues in the alternative that Harris’s

mandamus petition was not “properly filed” because he did not

provide the notice required by Va. Code § 8.01-644. That provision

says that an application for a writ of mandamus is to be made

“after the party against whom the writ is prayed has been served

with a copy of the petition and notice of the intended application


                                    8
a   reasonable   time   before   such   application    is   made.”     The

Commonwealth did not raise this argument before the district court

and, as we have held, the “[f]ailure to raise an argument before

the district court typically results in the waiver of that argument

on appeal.”   United States v. Benton, 523 F.3d 424, 428 (4th Cir.

2008).   Moreover, we agree with Harris that his failure to comply

with the notice requirement does not render his mandamus petition

improperly filed for purposes of § 2244(d)(2) because the notice

requirement constitutes a “condition to obtaining relief” under

Artuz rather than a “condition to filing.”           In denying Harris’s

petition, the Virginia circuit court did not call into question its

ability to consider the availability of the relief requested.          See

Pace, 544 U.S. at 417 (explaining that filing requirements “go to

the very initiation of a petition and a court’s ability to consider

that petition”).    Instead, it listed several reasons why Harris

could not obtain mandamus relief, including the unavailability of

mandamus to compel the performance of discretionary acts as well as

Harris’s non-compliance with the notice requirement of § 8.01-644.

Although Virginia case law on § 8.01-644 is sparse, the circuit

court’s treatment of the provision appears consistent with that of

the   Commonwealth’s    intermediate     appellate    court,   which   has

characterized the provision as a “procedural requirement[] for

obtaining” a writ of mandamus.          See Hutchins v. Carrillo, 500

S.E.2d 277, 284 (Va. Ct. App. 1998).      Given this characterization,


                                    9
we conclude that the notice requirement operates as a “condition to

obtaining relief” under state law.                   This conclusion is buttressed

by    Artuz,     where    the       Supreme    Court         did   not   include    notice

requirements among its list of the “laws and rules governing

filings.”       531 U.S. at 8.         The Commonwealth’s argument therefore

lacks merit under Artuz.

            Finally,          the   Commonwealth         argues     that    tolling   the

limitations period in this case “‘would turn § 2244(d)(2) into a de

facto extension mechanism, quite contrary to the purpose of AEDPA,

and open the door to abusive delay.’”                    Appellee’s Br. 14 (quoting

Pace, 544 U.S. at 413).             These concerns are unfounded.             Not every

prisoner       submission       will   toll        the   limitations       period   under

§ 2244(d)(2).      As the Eleventh Circuit has said, “Congress enacted

§ 2244(d)(2) to allow the deadline for federal filings to be tolled

when a prisoner legitimately pursues state remedies in good faith,

and did not intend it to be triggered simply because a prisoner

mailed nonsense to a state court.”                   Sibley v. Culliver, 377 F.3d

1196, 1201 (11th Cir. 2004).                   Harris’s petition was not mere

nonsense; instead, as explained above, it initiated a separate and

distinct legal proceeding and expressly challenged the validity of

his   conviction,        as    contemplated         by   §    2244(d)(2).      Moreover,

although Virginia law precluded Harris from obtaining a writ of

mandamus, nothing in the record suggests that Harris, a pro se




                                              10
litigant, acted in bad faith or for purposes of delay when filing

his mandamus petition.

             In sum, we hold that the mandamus petition Harris filed

in state circuit court constitutes a “properly filed application

for State post-conviction or other collateral review with respect

to” his underlying conviction within the meaning of 28 U.S.C.

§ 2244(d)(2). We reject the argument that Harris is ineligible for

tolling under § 2244(d)(2) simply because he initially asserted his

claims by seeking mandamus, when under Virginia law he should have

instead pursued habeas corpus relief.        While Harris’s mistake

rendered his petition subject to a state-law procedural bar, the

mistake did not render his petition improperly filed for purposes

of § 2244(d)(2) because under Artuz the state’s procedural bar

operates as a “condition to obtaining relief,” not a “condition to

filing.”     Therefore, Harris’s federal habeas petition is timely,

and he is entitled to consideration of the merits of his petition

on remand.

                                 * * *

           The district court’s order dismissing Harris’s petition

for a writ of habeas corpus is

                                              REVERSED AND REMANDED.




                                  11
