                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3107
                                    ___________

Phillip Eugene Parmley,                  *
                                         *
             Plaintiff - Appellant,      *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Arkansas.
Larry Norris, Director, Arkansas         *
Department of Corrections,               *
agent of Arkansas Department             *
of Corrections,                          *
                                         *
             Defendant - Appellee.       *
                                    ___________

                              Submitted: September 24, 2009
                                  Filed: November 16, 2009
                                  ___________

Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

      Philip Eugene Parmley, an Arkansas inmate convicted of possession of
methamphetamine, appeals the district court’s1 order dismissing his petition for habeas
corpus relief as untimely. This case presents the issue of which appellate court in
Arkansas is the “state court of last resort.” That determination controls when the


      1
        The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
statute of limitations commenced for Parmley’s habeas petition. We hold that the
Arkansas Court of Appeals is not a “state court of last resort,” and therefore the statute
of limitations began running immediately after the Arkansas Court of Appeals denied
Parmley’s motion for a rehearing. Accordingly, we affirm the district court’s
judgment.

                                    I. Background

        Parmley was convicted of possession of methamphetamine in the Circuit Court
of Garland County, Arkansas. He was sentenced to thirty years in prison on
September 25, 2002. The Arkansas Court of Appeals affirmed Parmley’s conviction.
Parmley v. Arkansas, No. CR03-71, 2004 WL 61045, at *7 (Ark. Ct. App. Jan. 14,
2004). Thereafter, Parmley filed two pro se motions. First, he filed a petition for
rehearing, which Arkansas Court of Appeals denied on May 19, 2004. Second,
Parmley submitted a belated petition for review to the Arkansas Supreme Court. The
clerk declined to file his petition because it was untimely. On May 20, 2004, the
Arkansas Supreme Court denied Parmley’s request to direct the clerk to file his
belated motion for review. Parmley v. Arkansas, No. CR04-462, 2004 WL 1119923,
at *1 (Ark. May 20, 2004). Parmley did not seek any further review of his direct
appeal by the Arkansas Supreme Court or the U.S. Supreme Court. On July 9, 2004,
Parmley petitioned for post-conviction relief in Arkansas state court pursuant to
Arkansas Rule of Criminal Procedure 37.1. The Arkansas trial court denied Parmley
relief under Rule 37.1. The Arkansas Supreme Court affirmed, Parmley v. Arkansas,
No. CR05-141, 2006 WL 3239992 (Ark. Oct. 5, 2006) (per curiam), and issued a
mandate denying post-conviction relief on October 24, 2006.

      On September 29, 2007, nearly 340 days after the Arkansas Supreme Court
denied post-conviction relief, Parmley filed a petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254 in federal district court. Parmley’s habeas petition
alleged ineffective assistance of counsel in violation of the Sixth and Fourteenth

                                           -2-
Amendments. A magistrate judge2 issued a report and recommendation, concluding
that Parmley’s conviction became final on May 19, 2004 when the Arkansas Court of
Appeals denied Parmley’s motion for rehearing on his direct appeal. Consequently,
the limitations period was running for the time period immediately after the Arkansas
Court of Appeals denied Parmley’s appeal. When combined with the later gap of
nearly 340 days, Parmley filed his petition beyond the 1-year statute of limitations for
habeas corpus petitions. The district court adopted the magistrate’s report and
recommendation in its entirety, dismissing Parmley’s habeas petition with prejudice
because it was untimely. Parmley v. Norris, No. 6:07-cv-6082, 2008 WL 2561964,
at *1.

       On July 14, 2008, Parmley requested a certificate of appealability from the
district court. The district court denied the certificate of appealability on September
5, 2008. Parmley timely appealed to this Court. On April 2, 2009, we granted
Parmley’s application for certificate of appealability to review the dismissal of
Parmley’s habeas petition.

       Parmley presents two potential grounds for reversal. First, Parmley argues that
his habeas petition was timely because the statute of limitations was tolled for 90 days
following the Arkansas Court of Appeals’ denial of his motion for rehearing. Ninety
days represents the time allotted for Parmley to file a petition for writ of certiorari to
the U.S. Supreme Court. See Sup. Ct. R. 13.1. Second, Parmley argues that the
district court should have stayed his habeas petition pursuant to Rhines v. Weber, 544
U.S. 269, 275 (2005). This Court has jurisdiction under 28 U.S.C. §§ 1291 and
2253(a). We review for the district court’s interpretation of law de novo. Walker v.
Norris, 436 F.3d 1026, 1029 (8th Cir. 2006).




      2
      The Honorable Barry A. Bryant, United States Magistrate Judge for the
Western District of Arkansas.

                                           -3-
                               II. Statute of Limitations

       We must consider three time periods following the denial of Parmley’s motion
for rehearing by the Arkansas Court of Appeals: (1) the 50 day period immediately
after May 19, 2004, and before Parmley filed a state post-conviction relief petition;
(2) the time period that Parmley’s state post-conviction relief petition was pending;
and (3) the nearly 340-day period between the conclusion of state post-conviction
relief proceedings and the commencement of this action. It is undisputed that the
statute of limitations was tolled for the second period, see 28 U.S.C. § 2244(d)(2), and
running for the third period. The parties disagree, however, on the first period. The
district court held that the statute of limitations was running during that 50 day period,
and therefore Parmley’s habeas petition was untimely. Parmley argues that the statute
of limitations did not begin running until after that 50 day period. It is undisputed that
if Parmley is correct, his petition was timely. Thus, we must determine when the
statute of limitation began running.

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
a 1-year statute of limitations governs a state prisoner’s petition for federal habeas
corpus relief. 28 U.S.C. § 2244(d)(1). The relevant triggering date for the statute of
limitations is “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” Id. §
2244(d)(1)(A). This provision permits prisoners time to seek direct review in the U.S.
Supreme Court. Smith v. Bowersox, 159 F.3d 345, 347–48 (8th Cir. 1998). If a
prisoner files a petition for certiorari, then his conviction becomes final upon “the
completion or denial of certiorari proceedings before the United States Supreme
Court.” Id. at 348. If a prisoner does not petition the U.S. Supreme Court for review,
then his conviction becomes final when the time for filing that petition expires, so
long as the Supreme Court could have reviewed his direct appeal. Riddle v. Kemna,
523 F.3d 850, 855 (8th Cir. 2008). The time for filing a writ of certiorari in the U.S.
Supreme Court is 90 days. Sup. Ct. R. 13.1. Therefore, the statute of limitations on

                                           -4-
a habeas petition begins running 90 days after a prisoner reaches the end of “all direct
criminal appeals in the state system.” Bowersox, 159 F.3d at 348. If, however, the
Supreme Court lacked jurisdiction to review the direct appeal, then the statute of
limitations begins to run immediately following the conclusion of the prisoner’s direct
appeal. Riddle, 523 F.3d at 855.

       Parmley did not petition the U.S. Supreme Court for review, but he nonetheless
argues that “the expiration of time for seeking [direct] review” of his conviction
includes the 90-day period for seeking Supreme Court review. In Riddle v. Kemna,
we held that the 90-day toll on the statute of limitations did not apply after a judgment
by the Missouri Court of Appeals because U.S. Supreme Court review was
unavailable. Id. at 854–55. Supreme Court review is limited to judgments of a “state
court of last resort” or a lower state court if the “state court of last resort” has denied
discretionary review. See Sup. Ct. R. 13.1; see also 28 U.S.C. § 1257(a). Because the
Missouri Court of Appeals was not the “state court of last resort,” the 90-day toll was
unavailable for the petitioner in Riddle. 523 F.3d at 855.

       At first glance, this case appears to be the Arkansas version of Riddle. In both
cases, the habeas petitioner appealed his conviction to the intermediate state court but
did not timely petition the state supreme court for review.3 Further, the central issue
in both cases is whether the intermediate state court is a “state court of last resort,” and
therefore whether “the expiration of time for seeking [direct] review” includes a 90-
day period for seeking certiorari review after the intermediate state court’s decision.




       3
       Although Parmley belatedly sought review from the Arkansas Supreme Court,
his appeal was never filed by the clerk’s office because it was untimely. Moreover,
the Arkansas Supreme Court denied Parmley’s motion to direct the clerk to file the
appeal. Parmley does not contend that the U.S. Supreme Court could have reviewed
that decision from the Arkansas Supreme Court.

                                            -5-
       “Identifying the state court of last resort requires an examination of the
particular state court procedures.” Riddle, 523 F.3d at 853. The Arkansas Constitution
vests the Arkansas Supreme Court—not the Court of Appeals—with broad
jurisdiction, general authority, and rule-making powers. See Ark. Const. amend. 80,
§ 2(D)(1) (2001) (granting the Arkansas Supreme Court “statewide appellate
jurisdiction”); Id. § 4 (“The Supreme Court shall exercise general superintending
control over all courts of the state . . . .”); Id. § 3 (“The Supreme Court shall prescribe
the rules of pleading, practice and procedure for all courts . . . .”). Most importantly,
the Arkansas Constitution establishes a hierarchy within the Arkansas judiciary:
“There shall be a Court of Appeals which may have divisions thereof as established
by Supreme Court rule. The Court of Appeals shall have such appellate jurisdiction
as the Supreme Court shall by rule determine and shall be subject to the general
superintending control of the Supreme Court.” Id. § 5. Pursuant to the state
constitution, the Arkansas Supreme Court has adopted several rules regarding the
jurisdiction of the Court of Appeals and how cases can be transferred to the Supreme
Court. See, e.g., Ark. Sup. Ct. R. 1-2 (“Appellate jurisdiction of the Supreme Court
and Court of Appeals”); Ark. Sup. Ct. R. 2-3 (establishing the requirements for parties
to petition the Court of Appeals for rehearing); Ark. Sup. Ct. R. 2-4 (establishing the
rules for petitions for review by the Supreme Court). As such, the Arkansas Supreme
Court Rules determine the Court of Appeals’ jurisdiction and caseload, whereas the
Arkansas Constitution establishes the Supreme Court’s jurisdiction and authority to
establish rules governing which cases it will review. These authorities persuade us
that the Arkansas Supreme Court—not the Court of Appeals—is the “court of last
resort” in Arkansas.

       Parmley contends that the Arkansas Court of Appeals was the “state court of
last resort” because it is the only court that could have reviewed his direct appeal.
Parmley argues that he was forbidden from petitioning the Arkansas Supreme Court
for review of his direct appeal. It is undisputed that Parmley was required to appeal
his conviction first to the Arkansas Court of Appeals. See Ark. Sup. Ct. R. 1-2(a)(2)

                                           -6-
(requiring criminal appeals to be filed in the Arkansas Court of Appeals unless the
death penalty or life imprisonment has been imposed). Thereafter, petitions to the
Arkansas Supreme Court for review must allege either:

      (i) the case was decided in the Court of Appeals by a tie vote, (ii) the
      Court of Appeals rendered a decision which is in conflict with a prior
      holding of a published opinion of either the Supreme Court or the Court
      of Appeals, or (iii) the Court of Appeals otherwise erred with respect to
      one of the grounds listed in Rule 1-2(b).

Ark. Sup. Ct. R. 2-4(c). Rule 1-2(b) lists six grounds that the Supreme Court will
consider in determining reassignment of cases:

      (1) issues of first impression, (2) issues upon which there is a perceived
      inconsistency in the decisions of the Court of Appeals or Supreme Court,
      (3) issues involving federal constitutional interpretation, (4) issues of
      substantial public interest, (5) significant issues needing clarification or
      development of the law, or overruling of precedent, and (6) appeals
      involving substantial questions of law concerning the validity,
      construction, or interpretation of an act of the General Assembly,
      ordinance of a municipality or county, or a rule or regulation of any
      court, administrative agency, or regulatory body.

Ark. Sup. Ct. R. 1-2(b). Parmley insists that he could not have petitioned the
Arkansas Supreme Court for review under any of the grounds listed in Rules 2-4(c)
and 1-2(b). This fact, argues Parmley, means that the Arkansas Court of Appeals was
the “state court of last resort” at least as to his case. That inference is where we
disagree.

       Arkansas Supreme Court Rule 1-2 makes clear that the Supreme Court’s
authority to review a case is not dependent upon or limited by the enumerated grounds
for assigning cases. Rule 1-2(b) provides, “Any case is subject to reassignment by the
Supreme Court, and in doing so, the Supreme Court will consider but not be limited
to [the list of grounds for reassignment].” Ark. Sup. Ct. R. 1-2(b) (emphasis added).
                                          -7-
 Moreover, Rule 1-2(e), which clarifies the Arkansas Supreme Court’s discretionary
considerations in determining whether to grant a petition for review, states that the
factors from Rules 1-2(b) and 2-4(c) “neither [control] nor fully [measure] the
Supreme Court’s discretion.” Ark. Sup. Ct. R. 1-2(e). Lastly, Rule 1-2(g) allows the
Supreme Court to assign or transfer cases “to achieve a fair allocation of the appellate
workload,” which is a consideration that is completely absent from Rules 1-2(b) and
2-4(c). The Arkansas Supreme Court rules expressly indicate that the grounds for
review listed in Rules 1-2(b) and 2-4(c) are not exhaustive. Notably, the Arkansas
Supreme Court and one federal district court concur with this interpretation of the
Arkansas Supreme Court Rules. See Maxey v. Tyson Foods, Inc., 18 S.W.3d 328,
329 (Ark. 2000) (“[T]he factors we consider in determining whether to grant a petition
to review neither control nor fully measure our discretion”); Ben-Yah v. Norris, 570
F. Supp. 2d 1086, 1093–94 (E.D. Ark. 2008) (“Ark. R. Sup. Ct. 1-2(b) makes it clear
that the Arkansas Supreme Court’s discretion for review is not limited to the express
factors.”). Even though Parmley claims that his direct appeal could not fit within the
broad categories in Rules 1-2(b) and 2-4(c), the Arkansas Supreme Court retained
discretion to review Parmley’s direct appeal. Consequently, the Arkansas Court of
Appeals was not the “state court of last resort.”

       Parmley also cites Arkansas Supreme Court Rule 1-2(h) in support of the
argument that his conviction was final after the Court of Appeals denied his motion
for rehearing. The Arkansas Supreme Court adopted Rule 1-2(h) in response to
language in O’Sullivan v. Boerckel, 526 U.S. 838 (1999). It clarifies that convicted
criminals shall not be required to petition the Arkansas Supreme Court for review in
order to exhaust “all available state remedies.” Ark. Sup. Ct. R. 1-2(h). In Riddle, we
held that a similar rule from the Missouri Supreme Court was inapposite because it did
not and could not control review by the U.S. Supreme Court. 523 F.3d at 854; see
also Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006) (rejecting a like argument
based on Georgia’s exhaustion of remedies rule). Indeed, Rule 1-2(h) neither controls




                                          -8-
the jurisdiction of the Arkansas Supreme Court, nor does it allow the U.S. Supreme
Court to grant certiorari review to a judgment from the Arkansas Court of Appeals.

      Admittedly, this case is more difficult than Riddle due to dicta from two
Arkansas Supreme Court cases decided shortly after the Arkansas General Assembly
created the Arkansas Court of Appeals. In Moose v. Gregory, 590 S.W.2d 662 (Ark.
1979), the Supreme Court denied a petition to review a Court of Appeals judgment
and took the opportunity to declare its aspirations for the Arkansas appellate structure:

      Ideally, the Supreme Court and the Court of Appeals will each have its
      own field of primary jurisdiction. Ideally, each court will in effect be a
      court of last resort, with its decisions having a desirable finality. Ideally,
      it will be immaterial to the litigant whether his particular case goes to
      one court or to the other.

Id. at 664. Two years later, in Daniels v. Bennett, 613 S.W.2d 591 (Ark. 1981), the
Arkansas Supreme Court explained that it does “not regard the Court of Appeals as
a purely intermediate court, ‘becoming merely an expansive and time-consuming level
in the appellate structure.’” Id. at 592 (quoting Moose v. Gregory). However, neither
Moose nor Daniels controls the Arkansas Supreme Court’s jurisdiction or authority
to review a case. If anything, these two opinions show that the Arkansas Supreme
Court’s has exercised its discretion to adopt a limited role in the Arkansas appellate
landscape. Parmley’s argument fails because what matters is the Arkansas Supreme
Court’s authority and jurisdiction to review a case—not whether it has exercised
discretion to do so. See Gorman v. Wash. Univ., 316 U.S. 98, 101 (1942) (dismissing
an appeal for lack of jurisdiction because the appellant did not seek review from “the
last state tribunal . . . to which the cause could be brought for review”); Stratton v.
Stratton, 239 U.S. 55, 56 (1915) (dismissing an appeal from a state intermediate court
where the state supreme court retained discretionary authority to review the case and
refusing to “indulg[e] in conjecture” as to how the state supreme court would have
exercised discretion had the appellant sought such review).



                                           -9-
        There is one district court case that cannot be reconciled with this opinion. In
Collier v. Norris, 402 F. Supp. 2d 1026 (E.D. Ark. 2005), the district court determined
that the Arkansas Court of Appeals was the “state court of last resort” because “there
was no good-faith basis for [the prisoner] to petition the Supreme Court of Arkansas
for review under that court's Rule 2-4.” Id. at 1030. Accordingly, the court held the
statute of limitations was tolled for 90 days because the prisoner “could have
petitioned the Supreme Court of the United States for writ of certiorari seeking review
of his conviction without first petitioning the Supreme Court of Arkansas for review.”
Id.4 Collier is directly at odds with our conclusion here. Although the requirement
in Rule 2-4 appears strict, we cannot interpret Rule 2-4 to overshadow the plain
language in Rule 1-2 that the enumerated discretionary factors are non-exhaustive.

       Finally, Parmley argues that Arkansas Supreme Court Rule 2-4(c) creates an
“affirmative duty for a party to petition to review to the Arkansas Supreme Court if
the Arkansas Court of Appeals erred with respect to one of the grounds enunciated in
Ark. R. Sup. Ct. 1-2(b).” Appellant’s Reply Br. 1. To the contrary, Rule 2-4 does not
impose an “affirmative duty” on prisoners to appeal to the Arkansas Supreme Court
in any situation. In the future, when a prisoner lacks a good faith basis for arguing
that the Arkansas Supreme Court should review his conviction based on one of the
factors listed in Rules 1-2(b) or 2-4(c), as here, then the prisoner should either (1)
timely petition the Arkansas Supreme Court for discretionary review based on other
factors or (2) file a petition for habeas corpus relief within one year (excluding any
tolling for state post-conviction relief proceedings). Parties have no “affirmative
duty” to petition the Arkansas Supreme Court for review, regardless of whether they
plan to file a petition for habeas corpus relief. We are merely clarifying when the
statute of limitations begins running for some prisoners.




      4
       The district court eventually denied habeas relief, and this Court affirmed
without reaching the statute of limitations question. Collier v. Norris, 485 F.3d 415
(8th Cir. 2007).
                                         -10-
       We conclude that the Arkansas Court of Appeals was not the “state court of last
resort,” and therefore the U.S. Supreme Court could not have reviewed either the
Arkansas Court of Appeals’ affirmance of Parmley’s conviction or denial of his
motion for rehearing. Accordingly, we hold that “the expiration of time for seeking
[direct] review” does not include the time period that Parmley could have filed a
petition for certiorari. The statute of limitations on Parmley’s habeas petition began
running on May 20, 2004. Because his petition was filed some 390 days after that
date (excluding the time that post-conviction relief proceedings were pending),
Parmley’s petition for a writ of habeas corpus was correctly dismissed as untimely.

                                  III. Failure to Stay

       As an alternative basis for reversal, Parmley argues that the district court should
have stayed his petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to allow
him to perfect his petition by pursuing his unexhausted claims in Arkansas state court.
Because the stay-and-abeyance procedure for mixed habeas petitions is limited to
timely petitions, see id. at 275, our conclusion that Parmley’s petition was untimely
renders the stay-and-abeyance issue moot.

                                      *     *    *

      The judgment of the district court is affirmed.

GRUENDER, Circuit Judge, dissenting.

       I agree with the Court that the timeliness of Parmley’s habeas petition hinges
on whether the U.S. Supreme Court had jurisdiction to review the Arkansas Court of
Appeals’ denial of Parmley’s petition for rehearing. Answering this question
“requires an examination of the particular state court procedures.” Riddle v. Kemna,
523 F.3d 850, 853 (8th Cir. 2008) (en banc). Here, this examination requires us to
interpret arguably conflicting rules of Arkansas procedure. After interpreting these

                                          -11-
rules, we then must apply them to Parmley’s case to identify “the highest court . . . in
which a decision could be had,” 28 U.S.C. § 1257, since the U.S. Supreme Court only
has jurisdiction to review a decision from that court. The Court today errs in both its
interpretation of Arkansas procedure and its application of § 1257. First, the Court
effectively reads Arkansas Supreme Court Rule 2-4(c) to be a nullity, when an
alternative reading would continue to give force to that rule. Second, the Court
incorrectly focuses on the jurisdiction of the Arkansas Supreme Court, rather than on
whether a decision from that court was available to Parmley.

       Instead of compelling defendants to file, and the Arkansas Supreme Court to
entertain, petitions for review that do not comply with Arkansas’s procedural rules,
I would continue to apply Arkansas Supreme Court Rule 2-4(c) as written. In my
view, the Arkansas Court of Appeals’ ruling was the final state court decision
available to Parmley, and it therefore triggered the U.S. Supreme Court’s certiorari
jurisdiction. Thus, the statute of limitations for Parmley’s federal habeas petition did
not begin to run until the 90-day period for petitioning the U.S. Supreme Court
expired. See Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). Because I would
hold that Parmley was entitled to this 90-day period and that consequently his habeas
petition was timely filed, I respectfully dissent.

                                           A.
       Two state court procedural rules are the focus of this case. Under Arkansas
Supreme Court Rule 1-2(e), the Arkansas Supreme Court has unbounded discretion
to grant a petition for review for any reason. However, Rule 2-4(c) provides that
petitions for review must allege one of eight grounds for review: a tie vote in the
Court of Appeals, a decision that conflicts with an Arkansas Supreme Court decision
or another Court of Appeals decision, or one of the six grounds enumerated in Rule
1-2(b).5 See ante at 7 (listing the grounds enumerated in Rule 1-2(b)). In short, Rule


      5
       There is no dispute that Parmley could not satisfy Rule 2-4(c). The state has
never denied Parmley’s claim that Rule 2-4(c) barred his petition. Indeed, Parmley’s
                                         -12-
1-2(e) allows the Arkansas Supreme Court to grant petitions for reasons (hereinafter
“discretionary factors”) that, on their own, would be insufficient for a defendant to
even file a petition under Rule 2-4(c).

       The interpretive question before the Court is the proper way to address the gap
between the set of petitions which could be granted and the smaller set of petitions
which could be filed. The Court chooses to eliminate this gap, holding that
notwithstanding the limitations of Rule 2-4(c), any petition which could be granted
can be filed.6 This overlooks the possibility that the gap was created intentionally;
that is, in my view the Arkansas Supreme Court has deliberately restricted its
discretion to grant petitions to encompass only the subset of petitions it permits
defendants to file. As explained below, I find the Court’s reading problematic in two
respects. Initially, it ignores Rule 2-4(c)’s clear text, which states that a “petition for
review must allege one of” the eight enumerated grounds. Ark. Sup. Ct. R. 2-4(c)
(emphasis added). Also, the Court’s holding runs counter to the Arkansas Supreme
Court’s actual treatment of petitions for review and its statements concerning the role
of the Arkansas Court of Appeals. Reading Rules 1-2(e) and 2-4(c) in the manner I
propose avoids these problems.

       First, the Court’s holding effectively nullifies Rule 2-4(c). The rule states that
a petition “must allege” one of eight specifically enumerated grounds. According to
the Court, however, a petition to the Arkansas Supreme Court no longer needs to
allege one of those eight grounds, but may instead assert any other reason that the


only potentially qualifying claim was an ineffective assistance of counsel claim.
However, ineffective assistance claims that were not raised in the trial court may only
be brought under Arkansas Criminal Procedure Rule 37, not on direct appeal. Whitney
v. State, 930 S.W.2d 343, 345 (Ark. 1996).
      6
       The Court appears to make this choice based solely on the fact that the unusual
gap exists. The logical result of the Court’s analysis is that no state supreme court
with unconstrained discretion could constrain that discretion by adopting a procedural
rule such as Rule 2-4(c).
                                           -13-
Arkansas Supreme Court might find, in its discretion, to be a persuasive ground for
granting the petition. Ante at 7-8. This result ignores Rule 2-4(c)’s text and
eliminates any force the words “must allege” previously had.

       Second, by permitting every defendant to petition the Arkansas Supreme Court
for review on any ground, the Court undermines the Arkansas Supreme Court’s goal
of assigning the Arkansas Court of Appeals “its own field of primary jurisdiction.”
Moose v. Gregory, 590 S.W.2d 662, 664 (Ark. 1979); see also id. (“Ideally [the Court
of Appeals] will in effect be a court of last resort, with its decisions having a desirable
finality.”). Under the Court’s reading, any Arkansas defendant may petition for
review for any reason, making the Arkansas Court of Appeals into “a purely
intermediate court, . . . ‘merely an expensive and time-consuming level in the
appellate structure.’” Daniels v. Bennett, 613 S.W.2d 591, 592 (Ark. 1981) (quoting
Moose, 590 S.W.2d at 663). While the Court suggests that these statements reflect an
intent merely to establish a discretionary review system, they are more consistent with
an intent of the Arkansas Supreme Court to take a limited role in the appellate process,
leaving particular classes of cases and issues to the Arkansas Court of Appeals. In any
event, the Court reaches its conclusion without identifying any rulings on petitions for
review that did not comply with Rule 2-4(c) where the Arkansas Supreme Court
nonetheless considered discretionary factors in granting or denying the petition.7 But


      7
        Indeed, I could locate no cases where the Arkansas Supreme Court denied a
petition for failure to comply with Rule 2-4(c) and at the same time discussed the
discretionary factors the Court now holds can also provide grounds for granting a
petition. See, e.g., Munn v. State, No. CR 05-985, 2005 WL 2462251, at *1 (Ark. Oct.
6, 2005) (unpublished per curiam) (“We find no ground pursuant to Ark. Sup. Ct. R.
2-4(c) to grant the petition for review.”); Kelly v. State, No. CR 04-1388, 2005 WL
256565 (Ark. Feb. 3, 2005) (unpublished per curiam); Abshure v. State, No. CR 02-
1213, 2002 WL 31845911 (Ark. Dec. 19, 2002) (unpublished per curiam); Murphy
v. State, No. CR 99-1388, 1999 WL 1212876 (Ark. Dec. 16, 1999) (unpublished per
curiam); Brown v. State, No. CR 99-194, 1999 WL 223495 (Ark. Apr. 15, 1999)
(unpublished per curiam); Dodson v. State, No. CR 99-75, 1999 WL 54932 (Ark. Feb.
4, 1999) (unpublished per curiam).
                                           -14-
see Wilson v. Cain, 564 F.3d 702, 705 (5th Cir. 2009) (ignoring Louisiana state
procedural rule for habeas filings only after finding that “Louisiana courts do not
invariably apply [the rule]”); Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001)
(same with respect to Texas, “defer[ring] to Texas courts’ application of state law”).

       I read Rule 2-4(c) to bar petitions which cannot allege one of the eight grounds,
but once such a ground is found and alleged with respect to at least one issue, the
Arkansas Supreme Court may consider other factors in deciding whether to grant
review of that issue and others. While Rule 1-2(e) allows the Arkansas Supreme
Court potentially to review issues that do not satisfy one of the eight enumerated
grounds, under this reading the court will do so only when (1) one of the eight
grounds is otherwise present and (2) discretionary considerations support also
reviewing the issue normally within the “primary jurisdiction” of the Arkansas Court
of Appeals, Moose, 590 S.W.2d at 664 (discussing such a “primary jurisdiction” for
the Court of Appeals). The structure of the Arkansas appellate system, in this respect,
would be analogous to a federal court’s supplemental jurisdiction over state law
claims under 28 U.S.C. § 1367. While a federal court could not hear a state law claim
alone under § 1367, it will do so when (1) a federal claim is present and (2)
discretionary considerations support also hearing the state law claim. In both
instances, an issue within the court’s “primary jurisdiction” is the necessary “ticket”
into that court. Once there, though, other issues may be considered.

       This interpretation of Arkansas’s procedural rules continues to give force to
Rule 2-4(c)’s “must” language while also giving effect to the statement of unbounded
discretion in Rule 1-2(e), thereby avoiding the first problem with the Court’s reading.
Furthermore, unlike the Court’s reading, this interpretation is fully consistent both
with the Arkansas Supreme Court’s treatment of petitions for review, see supra note
7, and with the Arkansas Supreme Court’s intent for the Arkansas Court of Appeals
to develop “its own field of primary jurisdiction.” Moose, 590 S.W.2d at 664.




                                         -15-
       The Court relies on Maxey v. Tyson Foods, Inc., 18 S.W.3d 328 (Ark. 2000),
to support its flawed reading of Arkansas’s procedural rules. In fact, the procedural
path of Maxey is more consistent with the interpretation that I propose. In Maxey, the
petition for review alleged that the case presented an issue of first impression, one of
the six Rule 1-2(b) grounds that permits the filing of a petition for review under Rule
2-4(c). Only after granting review to examine that question did the Arkansas Supreme
Court decide also to review certain factual findings, relying on its discretion under
Rule 1-2(e). Thus, Maxey does not support the Court’s conclusion that Rule 2-4(c)
is a nullity. Maxey merely stands for the proposition that Rule 1-2(e) gives the
Arkansas Supreme Court discretion to review an issue when a petition could be filed
under Rule 2-4(c), not that a losing party can file a petition based on any issue.
Consistent with Maxey, the interpretation I propose shows that Rules 1-2(e) and 2-4(c)
are not necessarily irreconcilable and that therefore the Court errs in reading Arkansas
Supreme Court Rule 2-4(c) as a nullity.

                                           B.
       In addition to its flawed reading of the Arkansas Supreme Court Rules, the
Court’s analysis also incorrectly focuses on “the Arkansas Supreme Court’s authority
and jurisdiction to review a case,” ante at 9, rather than on whether a “decision could
be had” from a “higher court” for the particular defendant in this case, as 28 U.S.C.
§ 1257 requires.8 Simply put, we may not be able to identify a single “highest court”
for all cases from a particular state, since the review available to a losing party can
vary from case to case due to peculiarities in that state’s procedural rules.9 Moreover,


      8
        There is also reason to doubt the Court’s conclusion that Rule 2-4(c) is not
jurisdictional, ante at 9. See Casey v. State, No. CR 07-171, 2009 WL 223888 (Ark.
Jan. 30, 2009) (unpublished per curiam) (noting a defendant “would not be able to
demonstrate that the jurisdiction of this court would be properly invoked” without
alleging one of Rule 2-4(c)’s grounds); see also supra note 7 (collecting additional
cases in which petitions were dismissed solely for non-compliance with Rule 2-4).
      9
      Thus, this case does not present the question of “which appellate court in
Arkansas is the ‘state court of last resort.’” Ante at 1 (emphasis added). The relevant
                                         -16-
unpacking the meaning of the word “decision” in § 1257 shows that the Court’s
interpretation, if correct, places a significant additional burden on the Arkansas
Supreme Court.

       The U.S. Supreme Court has made clear that in order to identify the “highest
court . . . in which a decision could be had,” it is necessary to look to what review, if
any, is available to a particular losing party. For example, the U.S. Supreme Court
had jurisdiction to issue a writ of certiorari directly to a Kentucky police court in
Thompson v. City of Louisville, 362 U.S. 199 (1960). There, the police court fined
Thompson ten dollars for loitering. Because this fine was less than twenty dollars, it
was “not appealable or otherwise reviewable in any other Kentucky court.” Id. at 202
(citing Ky. Rev. Stat. Ann. § 26.080). Thus, the U.S. Supreme Court granted
Thompson’s petition for writ of certiorari despite the lack of any decision beyond the
ruling of the police court. Id. While the police court was obviously not the “state
court of last resort” for all or even most Kentucky defendants, in Thompson’s case it
was the “highest court . . . in which a decision could be had.” See also Nash v. Fl.
Indus. Comm’n, 389 U.S. 235, 237 (1967) (finding jurisdiction because a per curiam
“denial by the Florida District Court of Appeal apparently precludes further state
review”); Tucker v. Texas, 326 U.S. 517, 518 (1946) (“Since he could not appeal to
a higher state court [than the county court] this appeal . . . is properly before us.”).

      Thompson, Nash, and Tucker further show that while § 1257 requires a decision
from the highest state court in which a decision can be had, the U.S. Supreme Court
does not define “decision” to include a confirmation from a higher court that a
procedural bar does, in fact, prevent a defendant’s appeal. To be sure, the U.S.
Supreme Court will not “indulg[e] in conjecture” over discretionary decisions of state
supreme courts. Stratton v. Stratton, 239 U.S. 55, 56 (1915). However, none of the
defendants in Thompson, Nash, or Tucker were required to attempt a procedurally-
barred appeal in a higher state court simply to obtain a rejection, in order to satisfy §


question is which court was the “state court of last resort” for Parmley.
                                          -17-
1257. The absence of these procedural denials did not prevent the U.S. Supreme
Court from exercising jurisdiction. Therefore, the U.S. Supreme Court plainly does
not consider the denial of a petition for failure to comply with procedural rules to be
a “decision” of a higher court.10 Cf. O’Sullivan v. Boerckel, 526 U.S. 838, 847-48
(1999) (“[T]here is nothing in the [habeas] exhaustion doctrine requiring federal
courts to ignore a state law or rule providing that a given procedure is not available.”).

       The U.S. Supreme Court’s case-specific approach to identifying the highest
court in which a decision could be had shows that the Court’s focus on the “Arkansas
Supreme Court’s authority and jurisdiction,” ante at 9, is misplaced. Rather, the Court
should have identified a “decision” that a particular defendant—Parmley in this
case—could have received. In nullifying Rule 2-4(c) and permitting defendants like
Parmley who cannot satisfy Rule 2-4(c) to file a petition, the Court may have
inadvertently made such a decision available to these defendants. However, to remain
consistent with the definition of “decision” in cases like Thompson, the Court must
further hold that, regardless of Rule 2-4(c)’s limitations, the Arkansas Supreme Court
will examine the merits of such a petition and decide whether to grant review in its
discretion. But see supra note 7. These decisions, unlike procedural denials, fall
within Stratton’s requirement that a defendant allow a state supreme court the
opportunity to exercise its discretion to review, before petitioning for a writ of
certiorari. 239 U.S. at 56-57. Only if the Arkansas Supreme Court would issue such
a discretionary decision would the Court’s interpretation of Arkansas procedure make
available to every defendant, including Parmley, a “decision” from the Arkansas
Supreme Court.11

      10
         The parties apparently understand that a procedural denial is not a “decision,”
since it is undisputed that the Arkansas Supreme Court’s order on May 20, 2004,
refusing to direct the clerk to file Parmley’s belated petition for review, did not trigger
the U.S. Supreme Court’s certiorari jurisdiction.
      11
         In declining to use a case-by-case method to identify the highest court in
Arkansas for each defendant, the Court is not “merely clarifying when the statute of
limitations began running for some prisoners,” ante at 11, but rather it is defining the
                                           -18-
       Under the Court’s interpretation, the Arkansas Supreme Court would be
required to render a “decision” on every petition for review.12 Evaluating the
discretionary factors discussed in a non-compliant petition, rather than simply denying
the petition for failure to comply with Rule 2-4(c), would necessarily require
significantly more time and effort. Should the Arkansas Supreme Court continue to
enforce Rule 2-4(c) strictly by not considering discretionary factors, the issue
presented in this case could return to us because such procedural denials are not
“decisions” of a higher court. Only if, as the Court reads the rules, the Arkansas
Supreme Court discretionarily denies petitions filed contrary to Rule 2-4(c)’s “must
allege” provision would the Arkansas Supreme Court remain the “highest court . . .
in which a decision could be had” for defendants such as Parmley.

      Under the interpretation I propose, a decision from the Arkansas Supreme Court
was unavailable to Parmley, for there is no dispute that he could not file a petition for
review that complied with the text of Rule 2-4(c).13 Most Arkansas criminal


U.S. Supreme Court’s jurisdiction to review cases from all Arkansas courts. The
Court effectively holds that the U.S. Supreme Court may never review an Arkansas
Court of Appeals decision.
      12
         The Court’s two choices for a habeas petitioner, ante at 10, amount to a red
herring. When a defendant who lacks any Rule 2-4(c) grounds is considering whether
to petition the Arkansas Supreme Court for review, his salient concern is continuing
his direct appeal and avoiding a final judgment, not the potential statute of limitations
for filing his habeas petition. As a result, his only real choices are to (1) “petition the
Arkansas Supreme Court for discretionary review based on other factors,” ante at 10,
or (2) abandon all direct appeals and allow the judgment to become final.
      13
         In this respect, Parmley’s case is distinguishable from O’Sullivan, which held
that “the creation of a discretionary review system does not, without more, make
review in the Illinois Supreme Court unavailable.” 526 U.S. at 848. While the parties
in O’Sullivan disputed whether the petitioner could file a procedurally proper petition,
here there is no dispute. Ante at 7. Additionally, Arkansas does not have “a
discretionary review system . . . without more.” Rule 2-4(c) provides additional
restrictions on filings, restrictions not present in Illinois.
                                           -19-
defendants likely will be able to comply with Rule 2-4(c) and therefore receive a
decision from the Arkansas Supreme Court. However, Parmley is like the defendant
in Thompson: state rules rendered a lower court the “highest court . . . in which a
decision could be had.” Since there was no further decision that Parmley could
receive from a higher court, he had 90 days from the Arkansas Court of Appeals’
denial of his petition for rehearing to petition the U.S. Supreme Court for a writ of
certiorari. I would hold that because Rule 2-4(c) prohibited Parmley from petitioning
the Arkansas Supreme Court, his judgment did not become final for the purposes of
28 U.S.C. § 2244 until after that 90-day period expired. His petition is therefore
timely, and should be remanded for consideration on its merits.14 I respectfully
dissent.
                        ______________________________




      14
         Though I find that Parmley’s petition was timely, I too would hold that he was
not entitled to the stay-and-abeyance procedures defined in Rhines v. Weber, 544 U.S.
269 (2005). Stay and abeyance applies only to “mixed” petitions, where “a state
prisoner presents a federal court with a single petition containing some claims that
have been exhausted in the state courts and some that have not.” Id. at 271. However,
Parmley’s petition is not a mixed petition; it contains only exhausted claims, and
neither Norris nor the district court suggested otherwise. Indeed, Parmley can only
point to minor semantic differences between the claims he raised in state court and the
claims in his petition. See Appellant Br. at 21 (distinguishing between failure “to seek
a suppression hearing” and to “file a motion to suppress,” and between “crime lab
technician” and “chemist”). Since Parmley’s petition does not contain unexhausted
claims, stay and abeyance was not appropriate.
                                         -20-
