                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-7240


HECTOR VASQUEZ ESCALANTE,

                Petitioner - Appellant,

           v.

BRYAN WATSON, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:10-cv-00370-sgw-mfu)


Argued:   March 22, 2012                  Decided:   July 18, 2012


Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the majority
opinion, in which Judge Niemeyer concurred. Judge Davis wrote a
dissenting opinion.


ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant.       Benjamin Hyman
Katz, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee. ON BRIEF: Scott Miglori, Third Year Law
Student, Kinal M. Patel, Third Year Law Student, UNIVERSITY OF
VIRGINIA    SCHOOL  OF    LAW,    Appellate    Litigation   Clinic,
Charlottesville,   Virginia,    for    Appellant.      Kenneth   T.
Cuccinelli,   II,  Attorney    General    of  Virginia,   Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
WYNN, Circuit Judge:

      Petitioner       Hector       Vasquez          Escalante      appeals       the   district

court’s     dismissal        of    his   petition          for     writ    of    habeas     corpus

challenging      his     convictions            and    sentence           in    Virginia.        He

contends     that      the        district      court       erred       in      dismissing      his

petition as untimely.              For the reasons that follow, we affirm.



                                               I.

      On    October      12,       2007,       Escalante         was      convicted,      in    the

Circuit Court of Pittsylvania County, Virginia, of abduction,

robbery, malicious bodily injury, and use of a firearm in the

commission of the three aforementioned felony offenses.                                        That

court      sentenced        him     to     a     total       of     seventy-eight           years’

imprisonment.

      On direct appeal, the Court of Appeals of Virginia affirmed

his   conviction       on    August      19,        2008    and    the     Supreme      Court    of

Virginia denied Escalante’s                  petition of appeal to that court on

December 18, 2008.             From that denial, Escalante did not seek a

writ of certiorari from the Supreme Court of the United States.

      However,      on       September          14,        2009,       proceeding       pro     se,

Escalante filed a state writ of habeas corpus petition in the

Circuit Court of Pittsylvania County, which that court denied

and   dismissed     on       December          15,    2009.         From       that   dismissal,

                                                 3
Escalante appealed to the Supreme Court of Virginia.                                 But that

court refused            Escalante’s      petition       on    July   27,    2010,       on   the

grounds       that    the    petition       “was   not     perfected        in    the    manner

provided by law” and thus not properly filed because the appeal

“does        not    list     the    specific       errors       in    the        lower    court

proceedings,”            pursuant   to    Rule     5:17(c)      of    the    Rules       of   the

Supreme Court of Virginia. 1                J.A. 50-51.

        On    August      16,    2010,    again    proceeding         pro    se,    Escalante

petitioned for a writ of habeas corpus in the U.S. District

Court       for    the    Western    District       of    Virginia,         asserting         four

grounds       for    the    invalidity       of    his    conviction        and     sentence,

including          assertions      that   counsel        was    ineffective,        that      his

Fifth        Amendment          privilege     against          self-incrimination             was

violated, and that there was insufficient evidence to support

his conviction.

        On August 19, 2010, the magistrate judge entered an order,

noting that, among other things, the petition appeared to be

untimely under 28 U.S.C. § 2244(d)(1)(A).                         The magistrate judge

directed Escalante to provide any arguments or evidence in favor



        1
       The Supreme Court of Virginia remanded the case to the
trial court for the limited purpose of correcting Escalante’s
middle name in the trial court’s final order.



                                               4
of timeliness within ten days.                 On August 24, 2010, Escalante

filed a response arguing that his petition for appeal to the

Supreme Court of Virginia was “properly filed” but was refused

“because it was not perfected.”               J.A. 92.     Escalante also argued

that he “listed assignments of error as required by the Court

and   did   mention     the     trial     court’s        errors     throughout   the

Petition,   [but]     apparently      did     not   do    so   in   compliance   and

perfection of Court Rules that the Petitioner did not know, as

he was proceeding pro-se.”              Id.     Escalante did not include a

copy of the petition for appeal to the Supreme Court of Virginia

in either his federal petition for writ of habeas corpus or his

supplemental pleading.

      On August 31, 2010, in a memorandum opinion and order, the

district court sua sponte dismissed Escalante’s petition on the

grounds that it was not timely filed in accordance with the one-

year limitations period under 28 U.S.C. § 2244(d).                     The district

court found that Escalante failed to perfect his appeal in the

manner provided by Va. Sup. Ct. R. 5:17(c), which requires that

the petition for appeal include a list of errors under a heading

entitled “Assignments of Error.”                J.A. 101-02.          Consequently,

the   district   court        found     that    Escalante’s         federal   habeas

petition should be dismissed as untimely filed.                       The district

court held that Escalante, despite being given the opportunity

                                         5
to amend his petition, failed to articulate any equitable basis

for   tolling         the   statute    of   limitations.           The     district      court

concluded that the petition for appeal was not “properly filed”

and, therefore, was not tolled under the one-year limitations

period     under       28   U.S.C.    §   2244(d)(1).         J.A.    103.        Escalante

appealed, and we granted a certificate of appealability on the

issue      of   whether        the   district      court   erred     in    dismissing      as

untimely his § 2254 petition.



                                             II.

       On appeal, Escalante’s sole argument is that the district

court erred in dismissing his application for a writ of habeas

corpus as untimely because the statute of limitations set forth

in    28    U.S.C.      §   2244(d)(1)      was     tolled    during       the    time    his

petition        to    the   Supreme    Court       of   Virginia     was    pending.       We

disagree.



                                             A.

       We review the denial of habeas relief on timeliness grounds

de novo.        United States v. Hopkins, 268 F.3d 222, 224 (4th Cir.

2001).          The     Antiterrorism       and     Effective      Death     Penalty      Act

(“AEDPA”)            governs     habeas     petitions        and     sets        forth     the

limitations period:              “A 1-year period of limitation shall apply

                                               6
to an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.”             28 U.S.C. §

2244(d)(1).    Under the AEDPA, the one-year period within which

to file a federal habeas petition runs from “the date on which

the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.”             28 U.S.C.

§ 2244(d)(1)(A).

       In short, the AEDPA provides that upon conclusion of
       direct review of a judgment of conviction, the one-
       year period within which to file a federal habeas
       petition commences, but the running of the period is
       suspended for the period when state post-conviction
       proceedings are pending in any state court.    Every
       circuit court that has construed 28 U.S.C. § 2244(d)
       has interpreted it in this way.

Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000).                  We

have recognized that the exhaustion and tolling provisions in 28

U.S.C. § 2244(d)(2) serve not only the interests of comity, but

also   the   interests   of   judicial    efficiency.    See     Yeatts   v.

Angelone, 166 F.3d 255, 261 (4th Cir. 1999).

       In this case, the district court concluded that the time

allowed for tolling the petition in accordance with 28 U.S.C. §

2244(d)(2)    was   limited    to   the    period   of   time    in   which

Escalante’s state habeas petition remained under consideration

in the state habeas trial court.            The statute of limitations

tolled on September 14, 2009, after approximately 180 days, when

Escalante filed his state habeas petition in the Pittsylvania
                              7
County Circuit Court.            However, the clock began to run again on

December     15,       2009,    when     the    Pittsylvania       County        Circuit

dismissed        the   petition.         Although      Escalante        appealed    the

Pittsylvania       County      Circuit   Court’s    dismissal      to    the     Supreme

Court of Virginia, the appeal was refused because it was not

“perfected in the manner provided by law” and, therefore, was

not “properly filed.”             J.A. 103.      Escalante filed the federal

habeas petition on August 16, 2010, approximately 244 days after

the   Pittsylvania        County    Circuit     Court    dismissed        his     habeas

petition.        Thus, according to the district court, the time clock

on his statute of limitations ran for a total of 424 days.

Therefore, his claims were time-barred.



                                           B.

      The Supreme Court has addressed the meaning of “properly

filed,” stating that:

      [A]n application is “properly filed” when its delivery
      and acceptance are in compliance with the applicable
      laws and rules governing filings.        These usually
      prescribe, for example, 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.

Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations omitted).                           In

Artuz,     the     Supreme     Court     held   that    time   limits       on     state

petitions are “condition[s] to filing,” and that an untimely

petition would not be deemed “properly filed.”                     531 U.S. at 11.
                               8
In   determining      whether    a    pleading     filed    in    state   court   was

“properly filed” for purposes of a federal time limit, state law

typically governs.        See Pace v. DiGuglielmo, 544 U.S. 408, 410

(2005).    “[J]ust because [an] application is pending, does not

mean that it was properly filed.                For example, if an application

is   erroneously      accepted       by   the   clerk    without    the   requisite

filing    fee,   it    will     be    pending,     but     not   properly   filed.”

Christian v. Baskerville, 232 F. Supp.2d 605, 607 (E.D. Va.),

cert. of appealability denied, 47 F. App’x 200 (4th Cir. 2001)

(unpublished)    (“[W]e       deny    a   certificate      of    appealability    and

dismiss the appeal on the reasoning of the district court.”).

      Here, the Supreme Court of Virginia found that Escalante’s

petition failed to include a list of assignments of error “in

the lower court proceedings upon which the petitioner intends to

rely.”    J.A. 50.      At the time Escalante filed his petition for

appeal, the relevant provisions of Va. Sup. Ct. R. 5:17(c) were

as follows:

      (c) Form and Content. Under a separate heading
      entitled “Assignments of Error,” the petition shall
      list the specific errors in the rulings below upon
      which the appellant intends to rely.       Only errors
      assigned in the petition for appeal will be noticed by
      this Court. Where appeal is taken from a judgment of
      the Court of Appeals, only assignments of error
      relating to questions presented in, or to actions
      taken by, the Court of Appeals may be included in the
      petition for appeal to this Court.    An assignment of
      error, which merely states that the judgment or award
      is contrary to the law and the evidence, is not
                                 9
       sufficient. If the             petition for appeal does not
       contain assignments            of error, the appeal will be
       dismissed.

A   petition        for   appeal    that    does    not     contain    the   appropriate

assignments of errors required by Va. Sup. Ct. R. 5:17(c) “does

not meet the required form of the petition for appeal,” and thus

does    not    qualify      for     statutory      tolling.        Christian,          232    F.

Supp.2d at 607.

       In concluding that Escalante’s petition for habeas corpus

was not timely filed, the district court explicitly relied on

Christian.          Escalante attempts to distinguish the instant case

from    Christian,        noting     that    the   district        court    in    Christian

reviewed the petitioner’s state habeas corpus records directly.

Escalante tries to create a dispute as to whether he complied

with Va. Sup. Ct. R. 5:17(c).                 Yet in his supplemental pleading

filed on August 22, 2010, Escalante concedes that he “apparently

did not [file his petition] in compliance and perfection of the

court       rules    that    the     petitioner       did    not    know,    as    he        was

proceeding pro se.”              J.A. 92.

       In    Christian,      the     United    States       District    Court      for       the

Eastern       District      of    Virginia     held    that    assignment         of    error

failures can prevent a petition for appeal from being “properly

filed” under Va. Sup. Ct. R. 5:17(c).                        232 F. Supp.2d at 607.

We conclude that the facts and circumstances in Christian are

                                              10
similar to those presented in this case.                       There, as in this

case, the petitioner failed to include the assignments of error

required by Va. Sup. Ct. R. 5:17(c) in his petition for appeal

from the state habeas court’s denial of habeas relief.                            Id. at

607.     In Christian, the court concluded that the “petitioner

failed    to    meet    the    form   requirement        for   properly      filing   an

appeal    in    the    Supreme    Court   of     Virginia,”     and    thus    had    not

properly filed pursuant to 28 U.S.C. § 2244(d).                       Id.     The court

in Christian held that the petitioner was not entitled to any

tolling for the period between the date of the state habeas

court’s denial of the petition and dismissal of his petition by

the Supreme Court of Virginia.             Id.



                                          C.

       “Where    a     state     procedural      rule    is    both    adequate       and

independent, it will bar consideration of the merits of claims

on habeas review unless the petitioner demonstrates cause for

the default and prejudice resulting there from or that a failure

to consider the claims will result in a fundamental miscarriage

of justice.”         McNeill v. Polk, 476 F.3d 206, 211 (4th Cir. 2007)

(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)); see also

Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (“If a state

court    clearly      and   expressly     bases    its    dismissal     of    a   habeas

                                          11
petitioner’s       claim    on     a   state        procedural      rule,    and    that

procedural rule provides an independent and adequate ground for

the dismissal, the habeas petitioner has procedurally defaulted

his   federal    habeas     claim.”      (citation         omitted)).       “[A]    state

court need not fear reaching the merits of a federal claim in an

alternative holding so long as it explicitly invokes a state

procedural rule as a separate basis for its decision.”                             Harris

v. Reed, 489 U.S. 255, 264 n.10 (1989) (citation and emphasis

omitted).

      Va.   Sup.    Ct.     R.     5:17(c)        unambiguously     directs    that    a

petition for appeal “list the specific errors in the rulings

below upon which the appellant intends to rely” and explains

that “[o]nly errors assigned in the petition for appeal will be

noticed by” the court.            It is undisputed that the Supreme Court

of    Virginia        did        not    adjudicate           Escalante’s       federal

constitutional claims on the merits.                   There also is no dispute

that the Supreme Court of Virginia’s dismissal of Escalante’s

state habeas application was based exclusively on Va. Sup. Ct.

R. 5:17, which sets forth a state rule acknowledged to be an

adequate and independent state law ground for decision.                        In such

cases,      federal       courts       are        barred     from    reviewing        the

constitutional merits of the claims dismissed, absent a showing



                                             12
of cause and prejudice.                  See Coleman, 501 U.S. at 750; Yeatts,

166 F.3d at 260.

       Escalante cannot assert that Va. Sup. Ct. R. 5:17(c) is not

firmly established nor regularly applied by the Supreme Court of

Virginia.        See    Yeatts,          166    F.3d    at    264    (noting      that    “[t]he

Supreme Court of Virginia had applied [Rule 5:17(c)] numerous

times    prior    to    the       date    [petitioner]            filed   his    petition       for

appeal    to    refuse       to    address       issues       that    were      not    preserved

properly with specific assignments of error.”).                                 Nevertheless,

Escalante maintains that, even if the state court petition did

not comply with Va. Sup. Ct. R. 5:17(c), it was still error for

the district court to deem the federal petition untimely.

       Specifically, Escalante argues that failure to comply with

Rule    5:17(c)       does    not        render       the    petition      invalid       in     its

entirety, it simply precludes review of certain claims and does

not render the matter not “properly filed.”                               In support of his

challenge,       Escalante        cites        Yeatts,      166    F.3d    255;       Mueller    v.

Angelone, 181 F.3d 557 (4th Cir. 1999); and Hedrick v. True, 443

F.3d    342    (4th    Cir.       2006).         In    each    of    those      cases,    unlike

Escalante’s petition, the Supreme Court of Virginia applied Va.

Sup. Ct. R. 5:17(c) to bar certain assignments of error from

appellate review; however, there were additional assignments of

error made in compliance with Va. Sup. Ct. R. 5:17(c).

                                                 13
     We     recognize     that   under    Va.   Sup.   Ct.      R.   5:17(c),   a

deficient assignment of error will prevent consideration of such

an argument on appeal but does not preclude the consideration of

valid assignments.        However, as in this case, where the petition

for appeal fails to assign any error in compliance with Va. Sup.

Ct. R. 5:17(c), it compels the dismissal of the appeal in its

entirety.     As we stated in Mueller, “Virginia Supreme Court’s

conclusion that these claims were defaulted bars them from our

consideration, absent cause and prejudice or a miscarriage of

justice, so long as Rule 5:17(c) is an independent and adequate

state     grounds   for    decision.”         181   F.3d   at    582   (citation

omitted). 2



     2
       In Yeatts, the Supreme Court of Virginia applied Va. Sup.
Ct. R. 5:17(c) to prevent consideration of the petitioner’s
argument alleging ineffective assistance of counsel, where his
assignment of error addressed the propriety of the trial court’s
failure to order an evidentiary hearing in habeas corpus review.
166 F.3d at 262-63. We reiterated the familiar standard that a
state procedural rule is “adequate” if it is firmly established
and regularly or consistently applied by the state court and
independent if it does not depend on a federal constitutional
ruling.   Id. at 263–64.      Similarly, in Mueller, the Supreme
Court of Virginia, applying Rule 5:17(c), “dismissed . . .
scores   of   claims   strung    together,  without  support  or
explanation, in the two footnotes on the final two pages.” 181
F.3d 583.    In Mueller, we concluded that “the assignments of
error asserted there in were defaulted not because the petition
was too long, but because they lacked either the specificity or
the support the rule explicitly and unambiguously demands, or
both.”   Id.    And in Hedrick, the Supreme Court of Virginia
(Continued)

                                         14
                                 D.

      Although Escalante acknowledges that the district court can

raise a timeliness issue sua sponte, he maintains that it is

still an affirmative defense.    He contends that the petition was

dismissed summarily under Rule 4 of the Rules Governing Section

2254 Cases, without a response ever being requested or received

from the Commonwealth.    He asserts that lack of timeliness under

§ 2244(d) is an affirmative defense that would ordinarily have

to be raised by the Commonwealth in its response, and that, as a

pro se petitioner in the court below, his response is entitled

to a liberal construction.

      The district court, in reviewing a petition for writ of

habeas corpus, has the authority to raise timeliness issues on

its   own,   regardless   of   either   party’s   actions,   because

“[a]ctions brought pursuant to § 2254 implicate considerations

of comity, federalism, and judicial efficiency not present in




dismissed the petitioner’s claims concerning an alleged failure
by the government to disclose exculpatory information, and we
affirmed the district court’s dismissal because the “default
rule applied was . . . adequate.”    443 F.3d at 363 (quotation
marks omitted). Accordingly, these cases do not help Escalante.



                                 15
ordinary civil actions.”                     Hill v. Braxton, 277 F.3d 701, 705

(4th Cir. 2002).

          Allowing      the   district        court   to     consider        sua    sponte    the

timeliness of a § 2254 petition is consistent with Rule 4 of the

Rules Governing Section 2254 Cases.                         Id.     Rule 4 addresses the

district         court’s      sua     sponte     consideration          of    a    defense    by

stating that:

          If it plainly appears from the petition and any
          attached exhibits that the petitioner is not entitled
          to relief in the district court, the judge must
          dismiss the petition and direct the clerk to notify
          the petitioner. If the petition is not dismissed, the
          judge must order the respondent to file an answer,
          motion, or other response within a fixed time, or to
          take other action the judge may order.

Rule 4, 28 U.S.C. foll. § 2254.

          In Hill, we held that “justice required the district court

to       give    the    pro   se    §    2254   petitioner         prior     notice    and    an

opportunity to respond.”                     Id. at 707.          In Hill, we sought to

make certain that a district court does not prematurely dismiss

a    §    2254    petition     as       untimely     before       the   petitioner      has   an

adequate opportunity to present facts “not apparent to the court

that militate against the application of the limitations bar.”

Id.       Thus, Hill requires only that the petitioner be given an

opportunity            to   provide      a   basis,    if     any,      to   show    that     the

petition was filed within the time limitation period.


                                                16
       Here,      the       district          court      provided           Escalante          with    an

opportunity       to     make       his    case.          Escalante          filed       his    pro     se

petition for a writ of habeas corpus using a standard government

form that asks for information “explain[ing] why the one-year

statute of limitations as contained in 28 U.S.C. § 2244(d) does

not bar [the] petition.”                   J.A. 16.             In his response, Escalante

wrote,    “excluding          the    time      where        a    petition      or     appeal         [was]

pending,    this        petition         is    being      filed        in    time.”        J.A.       16.

Unlike the pro se defendant in Hill, Escalante was aware and on

notice     that        he     should          provide       information          regarding            the

timeliness        of     his    petition.                After         reviewing         Escalante’s

petition for a writ of habeas corpus and raising the issue of

untimeliness, the district court gave Escalante the opportunity

to     submit     evidence          to     demonstrate            the       timeliness          of     his

petition.        In his response to the magistrate judge’s request for

“any     additional         argument          or    evidence           petitioner        desires       to

present concerning the timeliness of his §2554 petition under

§2244(d),”        Escalante          did       not       put      forward       any       additional

evidence.        J.A. 84.       He simply provided the following response:

“While     the    Petitioner             did    list[]          assignments         of    errors       as

required by the Court and did mention the trial court’s errors

through     the        Petition,          apparently            [he]     did    not       do     so    in

compliance       and        perfection         of     the       Court       Rules.”        J.A.       92.

                                                    17
Escalante’s admission that he failed to conform his petition to

the   requirements     of   Virginia       Supreme   Court     Rule   5:17(c)

supported   the     district    court’s     conclusion      that   Escalante’s

petition was not “properly filed” and thus properly dismissed.



                                    III.

      In sum, the Supreme Court of Virginia dismissed Escalante’s

petition because it was not perfected in the manner provided by

Va. Sup. Ct. R. 5:17(c) and was therefore not properly filed.

Accordingly,   we    conclude    that      the   district     court   properly

dismissed Escalante’s habeas corpus petition as untimely.

                                                                      AFFIRMED




                                     18
DAVIS, Circuit Judge, dissenting:

        The majority affirms the dismissal of Escalante’s petition

under 28 U.S.C. § 2254 for two alternative reasons: because the

federal        petition     was     untimely,         and   because        Escalante

procedurally defaulted his claims. With respect, I dissent.

     First,      the     majority   opinion     too    easily   approves     of   the

district court’s hasty dismissal of this case as untimely (a

mere fifteen days after it was filed) on a record that lacks

evidence       showing    that    Escalante     actually    failed    to    include

“assignments of error” in his state court petition for appeal,

as required by Virginia Supreme Court Rule 5:17(c). Rule 4 of

the Rules Governing Section 2254 Cases requires a district court

to dismiss a petition only if it “plainly appears . . . that the

petitioner is not entitled to relief.” Rule 4, 28 U.S.C. foll. §

2254 (emphasis added). Moreover, we “interpret the efforts of a

pro se petitioner liberally.” Fields v. Atty Gen. State of Md.,

956 F.2d 1290, 1298 n.20 (4th Cir. 1992).

     In Escalante’s response to the district court’s sua sponte

invocation of the Commonwealth’s timeliness defense, he asserted

that he “did list[] assignments of errors as required by the

Court    and    did    mention    the   trial   court’s     errors    through     the

Petition,” but that he “apparently did not do so in compliance

and perfection of the Court Rules.” J.A. 92 (emphasis added).

                                         19
Bearing in mind that Escalante’s pro se pleadings are to be

liberally construed, at minimum Escalante’s response raised a

question    about        the    contents    of       his    underlying      petition   for

appeal. He clearly did not “concede[]” or “admi[t],” Maj. Op. at

10, 18, a complete failure to conform with the requirements of

Rule 5:17(c). Thus, it did not “plainly appear[]” on the record

before the district court that Escalante’s petition for appeal

failed to comply with Rule 5:17(c).

     Given        that     Escalante’s      response,             liberally    construed,

disputed the district court’s perception that he had failed to

comply     with    Rule        5:17(c),    in    my        view    the    district    court

committed     reversible           error        by     failing       to     require     the

Commonwealth to file a response to Escalante’s § 2254 petition

that (presumably) would have included the disputed petition for

appeal. The majority impliedly concludes that Escalante, rather

than the Commonwealth, had the burden to produce the petition

for appeal to support the Commonwealth’s timeliness defense. The

majority’s approach conflicts with the Rules Governing § 2254

Cases, which “recognize that the state is much better able to

access the state court record.” Griffin v. Rogers, 308 F.3d 647,

653 (6th Cir. 2002); see Rule 5(c)-(d), 28 U.S.C. foll. § 2254

(requiring a § 2254 respondent to include petitioner’s appellate

briefs, state court appellate decisions, relevant state court

                                            20
transcripts, and additional transcripts or narrative summaries

of    state   court    proceedings     upon    the   court’s    order.).        As   the

Eleventh Circuit has explained, “The obligation to come forward

with the state court record is squarely upon the respondent, not

the petitioner.” Bundy v. Wainwright, 808 F.2d 1410, 1415 (11th

Cir. 1987).

       In short, the ambiguity of Escalante’s response required

the district court to review the state court record, and the

burden to produce that record was on the Commonwealth. Because

the district court did not order the Commonwealth to respond to

Escalante’s petition, I would vacate the judgment and remand for

further proceedings.

       Second,     there    is   another      reason      it   did   not    “plainly

appear[]” from Escalante’s federal habeas petition, see Rule 4,

28 U.S.C. foll. § 2254, that Escalante’s federal habeas petition

was    untimely.      The   one-year    period       of    limitations     under      §

2244(d)(1) 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.”     28    U.S.C.     §

2244(d)(2).      This    “includes     the     period     between    (1)    a    lower

court’s adverse determination, and (2) the prisoner’s filing of

a notice of appeal, provided that the filing of the notice of

appeal is timely under state law.” Evans v. Chavis, 546 U.S.

                                        21
189, 191 (2006) (citing Carey v. Saffold, 536 U.S. 214 (2002)).

If a notice of appeal is timely filed, then the tolling period

continues until “final disposition by the highest state court

(whether       decision     on   the   merits,       denial     of    certiorari,    or

expiration      of   the    period     of   time    to   seek    further     appellate

review).” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999).

     Neither      this     court   nor      the    Supreme    Court    has   addressed

whether    a     state     application       for    appeal    (as     opposed   to   an

original state habeas petition) is an “application” that must be

“properly filed” under 28 U.S.C. § 2244(d)(2). ∗ That is, there is

an open legal question as to whether a prisoner’s filing of a

timely but somehow deficient notice of appeal continues to toll

the federal limitations period until the state appellate court



     ∗
       In Allen v. Mitchell, 276 F.3d 183 (4th Cir. 2001), we
mentioned that the federal limitations period is tolled while a
state habeas petition is on appeal “if the appellate petition
was ‘properly filed.’” Id. at 185. To the extent that implies
that failing to “properly” file a timely notice of appeal
precludes tolling during an appeal period, the statement is
dicta. The issue in Allen was whether the limitations period was
tolled between the expiration of the state appeal deadline and
the subsequent filing of an untimely appellate petition. Here,
unlike in Allen (and unlike in Pace v. Diguglielmo, 544 U.S. 408
(2005)), the question is not whether Escalante’s notice of
appeal was timely filed (it clearly was), but rather whether his
subsequent “petition for appeal” was “properly” filed, insofar
as Virginia practice requires that such a document contain
“assignments of error.”



                                            22
denies review or otherwise rejects the prisoner’s appeal. This

open legal question could be dispositive as to the timeliness of

Escalante’s federal § 2254 petition. The AEDPA one-year statute

of limitations began running on March 18, 2009, when Escalante’s

conviction       became        final.      28        U.S.C.     §     2244(d)(1)(A).            The

limitations       period       was   tolled          on    September        14,    2009,       when

Escalante filed his state habeas petition in the Pittsylvania

County Circuit Court, at which point 180 days had passed. The

Pittsylvania          County     Circuit         Court         denied        and       dismissed

Escalante’s      state      habeas      petition          on   December      15,       2009.    The

Virginia Supreme Court “refused” his petition for appeal because

it was not “perfected,” on July 27, 2010. J.A. 50.

       The   district       court    assumed,          and     the    majority         apparently

agrees,      that       Escalante’s           petition          for        appeal       was      an

“application” that had to be “properly filed,” and therefore if

the    petition       for   appeal      was     improperly           filed       the   statutory

tolling      period     ended,       retroactively,             as     of    the       date     the

Pittsylvania      County       Circuit     Court          dismissed        his    state    habeas

petition. We need not and should not decide that question at

this    stage,    however.       Because        the       district     court       declined      to

order     the    Commonwealth         to      respond          to    Escalante’s          federal

petition,       the    court    could      only       dismiss        the    petition       if    it

“plainly appear[ed] from the petition” that it was untimely.

                                                23
Rule   4,    28    U.S.C.    foll.          §    2254.       Separate   from   the       question

whether in fact Escalante failed to comply with Virginia Supreme

Court Rule 5:17(c), see supra, this non-frivolous legal question

precludes a finding that Escalante’s federal petition plainly

was untimely.

       The majority neither acknowledges that open legal question

nor explains why it is electing to follow Allen’s dicta. Nor

does it explain, even if under federal law, despite the timely

filing of a notice of appeal, a state petition for appeal must

be “properly” (not just timely) filed, (1) why, under Virginia

practice, a petition for appeal is an “application” that must be

“properly     filed”;       (2)       why       any    and    all   defects    in    a    pro    se

litigant’s        composition         of        his    “assignments      of    error”      under

Virginia     practice       defeat          a     finding       that    the    petition         was

“properly     filed”     as       a    matter          of     federal   law;    or       (3)    why

“perfecting an appeal” under Virginia law, as the district court

put    it,    is     invariably             necessary          to   “properly        file”       an

“application” under § 2244(d)(2). Instead of addressing these

questions, the majority relies on Christian v. Baskerville, 232

F. Supp. 2d 605 (E.D. Va. 2001), which in turn relied on dicta

from Rodgers v. Angelone, 113 F. Supp. 2d 922 (E.D. Va. 2000),

aff’d, 5 F. App’x. 335, 2000 WL 265336 (4th Cir. 2001), to

conclude that Escalante is not entitled to statutory tolling

                                                  24
from the time the circuit court denied his state writ of habeas

corpus until the time the Virginia Supreme Court refused his

petition for appeal for failing to include adequate assignments

of   error   in    his    petition     for    appeal.    I    do     not    believe      the

reasoning     of     Christian,        or    the   district         court’s       or    the

majority’s    reliance        thereon,        supports       the     conclusion         that

Escalante’s       federal    petition       plainly   was     untimely,       permitting

its summary dismissal.

       Finally, for similar reasons, the district court erred in

concluding    that,       even    if    Escalante’s         federal        petition      was

timely, his failure to compose sufficient “assignments of error”

resulted in procedural default of his claims, see Escalante v.

Watson, 2010 WL 3489041, *1, n.6 (W.D. Va. Aug. 31, 2010). The

district     court       could     only      excuse     the        Commonwealth         from

responding to Escalante’s petition if it “plainly appear[ed]”

under Rule 4 that Escalante was not entitled to relief, either

because the federal petition was untimely or because Escalante’s

claims had been procedurally defaulted. The factual predicate

for both of the district court’s conclusions was its finding

that Escalante had failed to comply with Virginia Supreme Court

Rule   5:17(c).     For     the   reasons     discussed       above,       such   was   not

plainly apparent from the record. Therefore, the district court



                                            25
should     have   required   the   Commonwealth     to    file    a    response

addressing both grounds.

     For    these   reasons,   I   am     unable   to    join    the   majority

opinion. I would vacate the judgment and remand this action for

further proceedings in the district court.




                                     26
