                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0322p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                        Petitioner-Appellant, -
 MICHAEL PAUL SHERWOOD,
                                                 -
                                                 -
                                                 -
                                                      No. 08-1019
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 JOHN PRELESNIK,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
                 No. 07-00425—Richard A. Enslen, District Judge.
                                  Argued: June 16, 2009
                         Decided and Filed: September 3, 2009
                  Before: KEITH, COLE, and WHITE, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Stuart G. Friedman, KIRSCH & SATAWA, P.C., Southfield, Michigan, for
Appellant. Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Stuart G. Friedman, Mark A. Satawa,
KIRSCH & SATAWA, P.C., Southfield, Michigan, for Appellant. Brian O. Neill, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                   _________________

                                         OPINION
                                   _________________

        WHITE, Circuit Judge. Michael Sherwood, a Michigan prisoner, appeals a district
court judgment dismissing his petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254 as barred by the one-year statute of limitations in § 2244(d). A panel of this court
granted Sherwood a certificate of appealability on two issues: (1) whether a timely motion
for rehearing in a state supreme court on a post-conviction appeal tolls the time for a habeas
corpus petition under 28 U.S.C. § 2244(d); and (2) whether cases pending when the Supreme


                                              1
No. 08-1019               Sherwood v. Prelesnik                                        Page 2


Court overruled Abela v. Martin, 348 F.3d 164 (6th Cir. 2003), in Lawrence v. Florida, 127
S. Ct. 1079 (2007), are entitled to equitable tolling. Under the facts presented here, we
answer both questions in the affirmative, and reverse the district court’s dismissal of
Sherwood’s petition.

                                              I.

          In 2002, Sherwood was charged with six counts of criminal sexual conduct in the
first degree in violation of Mich. Comp. Laws, § 750.520b(1)(b)(ii) (victim age thirteen to
fifteen and actor related to victim). After a jury trial, Sherwood was convicted of five of the
six counts. On May 1, 2002, he was sentenced to concurrent prison terms of ten to thirty
years for each count. Sherwood appealed, and the Michigan Court of Appeals affirmed his
conviction. People v. Sherwood, No. 242717, 2003 WL 22796827 (Mich. Ct. App., Nov.
25, 2003). The Michigan Supreme Court denied Sherwood’s application for leave to appeal
on June 30, 2004. People v. Sherwood, 682 N.W.2d 95 (Mich. 2004).

          On September 29, 2005, rather than file a petition for writ of habeas corpus,
Sherwood filed a motion for post-conviction relief pursuant to Michigan Court Rule 6.500
et seq. The trial court denied the motion, and the Michigan Court of Appeals denied leave
to appeal. Sherwood then sought leave to appeal to the Michigan Supreme Court, which was
denied on January 29, 2007. Sherwood filed a timely motion for reconsideration of the
Supreme Court’s January 29, 2007 order, which was denied on April 24, 2007. People v.
Sherwood, 729 N.W. 2d 848 (Mich. 2007).

          On April 30, 2007, with the assistance of counsel, Sherwood filed a petition for a
writ of habeas corpus in the U.S. District Court for the Western District of Michigan. A
magistrate judge reviewed Sherwood’s petition and recommended that the district court
dismiss the petition as barred by the one-year statute of limitations provided in 28 U.S.C.
§ 2244(d)(1). The district court adopted the magistrate’s report and recommendation and
dismissed Sherwood’s petition, rejecting Sherwood’s argument that the statute of limitations
was tolled while his motion for reconsideration was pending before the Michigan Supreme
Court. Sherwood filed a motion for reconsideration of the district court’s order, which was
denied.
No. 08-1019               Sherwood v. Prelesnik                                          Page 3


        Sherwood requested a certificate of appealability from the district court, which was
denied. Sherwood then requested a certificate of appealability from this court, and this court
granted rehearing of a single-judge order denying the certificate, and allowed an appeal on
two issues: (1) whether a timely motion for rehearing in a state supreme court on a post-
conviction appeal tolls the time for a habeas corpus petition under 28 U.S.C. § 2244; and
(2) the effect of equitable tolling on the time for filing a petition for habeas corpus with
respect to cases pending when the Supreme Court overruled Abela v. Martin, 348 F.3d 164
(6th Cir. 2003), in Lawrence v. Florida, 127 S. Ct. 1079 (2007).

                                              II.

        This court reviews a “district court’s decision to grant or deny a writ of habeas
corpus de novo; however, the district court’s factual findings will not be disturbed unless
they are clearly erroneous.” Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001).
“Questions of statutory construction are also reviewed de novo.” Id. Specifically, this court
reviews de novo the district court’s decision not to apply equitable tolling. Griffin v. Rogers,
399 F.3d 626, 635 (6th Cir. 2005).

        As amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132, 28 U.S.C. § 2244(d) states:

        (1)     A 1-year period of limitation shall apply to an application for a writ
                of habeas corpus by a person in custody pursuant to the judgment of
                a State court. The limitation period shall run from the latest of –
                (A)      the date on which the judgment became final by the
                         conclusion of direct review or the expiration of the time for
                         seeking such review;
                (B)      the date on which the impediment to filing an application
                         created by State action in violation of the Constitution or
                         laws of the United States is removed, if the applicant was
                         prevented from filing by such State action;
                (C)      the date on which the constitutional right asserted was
                         initially recognized by the Supreme Court, if the right has
                         been newly recognized by the Supreme Court and made
                         retroactively applicable to cases on collateral review; or
No. 08-1019               Sherwood v. Prelesnik                                            Page 4


                 (D)     the date on which the factual predicate of the claim or
                         claims presented could have been discovered through the
                         exercise of due diligence.
        (2)      The time during which a properly filed application for State post-
                 conviction or other collateral review with respect to the pertinent
                 judgment or claim is pending shall not be counted toward any period
                 of limitation under this subsection.
        Under § 2244(d)(1), a “1-year period of limitations shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to a judgment of a State court.” The
statute of limitations begins to run from the latest of four circumstances, one of which 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.” 28 U.S.C. § 2244(d)(1)(A). In the instant
case, Sherwood appealed his conviction first to the Michigan Court of Appeals, and then to
the Michigan Supreme Court. The Michigan Supreme Court denied his application on June
30, 2004, and Sherwood had ninety days from that date to file a petition for writ of certiorari
with the United States Supreme Court, which he declined to do. Thus, his conviction
became final on September 29, 2004, when the time period for seeking certiorari expired.
Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (one-year statute of limitations does
not begin to run until the time for filing a petition for a writ of certiorari for direct review in
the United States Supreme Court has expired); see Lawrence, 127 S. Ct. at 1083
(acknowledging that direct review under § 2244(d)(1)(A) “encompass[es] review of a state
conviction by [the Supreme] Court.”)

        Sherwood’s one-year time limit for filing a habeas petition began running on
September 30, 2004. On September 29, 2005, with two days of the one-year time period
remaining, Sherwood filed a motion for post-conviction relief under the Michigan court
rules. Pursuant to § 2244(d)(2), the time during which this motion was “pending” is not
counted toward the period of limitations. The parties agree that the one-year time period was
tolled at least until January 29, 2007, the date the Michigan Supreme Court denied
Sherwood’s application for leave to appeal. However, Sherwood filed a timely motion for
reconsideration, which was denied on April 24, and Sherwood’s habeas petition was filed
on April 30.
No. 08-1019                Sherwood v. Prelesnik                                          Page 5


        On September 11, 2007, the district court dismissed Sherwood’s habeas petition as
untimely, finding that the statute of limitations had resumed running on January 29, 2007,
making Sherwood’s April 30 petition untimely by three months. Sherwood v. Prelesnik, No.
1:07-CV-425, 2007 WL 2694512 (W.D. Mich. Sept. 11, 2007). The district court stated:
“[c]ourts in the Sixth Circuit view state post-conviction review as ending when the state
supreme court denies leave to appeal, not when the state supreme court denies a motion for
reconsideration.” Id. at *1. On this basis, the district court dismissed Sherwood’s petition
as untimely, finding that when the Michigan Supreme Court denied Sherwood’s motion for
leave to appeal on January 29, “the statute was no longer tolled . . . Petitioner had two days
remaining, until January 31, 2007, in which to file a petition for habeas relief. Since
Petitioner did not file until April 30, 2007, his Petition is time-barred by § 2244(d)(1)(A).”
Id.

        Sherwood filed a motion to reconsider the district court’s September 11 order, and
on December 13, 2007, the district court issued a second order upholding its earlier decision,
but acknowledging that it was not clear in this circuit “whether state post-conviction review
ends, for purposes of § 2244(d), when a state’s highest court denies leave to appeal or denies
a motion for reconsideration.” Sherwood v. Prelesnik, No 1:07-CV-425, 2007 WL 4358179,
*1 n.2 (W.D. Mich. Dec. 13, 2007). The court explained:

        Petitioner argues that the Court failed to consider one vital fact: Petitioner
        filed a timely motion for reconsideration of the denial of leave with the
        Michigan Supreme Court on February 27, 2007, which was denied on April
        24, 2007. Petitioner argues tolling continued until this motion was denied.
        Assuming, arguendo, that Petitioner is correct and that a palpable defect
        exists in the Final Order, Petitioner still filed his habeas petition four days
        late on April 30, 2007.
        Therefore, the same disposition of the case results.
Id. (footnotes omitted).

        The first question before this panel is “whether a timely motion for rehearing in a
state supreme court on a post-conviction appeal tolls the time for a habeas corpus petition
under 28 U.S.C. § 2244.” More specifically, the question on these facts is whether
Sherwood’s post-conviction motion was no longer “pending” (causing the statute of
limitations to cease tolling) on January 29, when his application for leave to appeal was
No. 08-1019               Sherwood v. Prelesnik                                           Page 6


denied, or on April 24, when his motion for reconsideration was denied. Respondent
declines to address that issue in the instant appeal, and argues instead that resolution of the
issue is immaterial, as even if the statute was tolled until April 24, 2007, Sherwood’s petition
would still be four days late when it was filed on April 30, 2007.

        As the district court noted in its December 13 order, this circuit has not directly
addressed whether a motion for rehearing continues to toll the one-year time limit imposed
by § 2244(d). However, in Allen v. Yukins, 366 F.3d 396, 400 (6th Cir. 2004), this court
stated that “[t]he state postconviction review process continued until October 30, 2000, when
the Michigan Supreme Court denied Allen’s motion for reconsideration.” The Allen court
used the Michigan Supreme Court’s denial of Allen’s motion for reconsideration as the date
tolling stopped, but ultimately found the habeas motion untimely by seven months.

        The Supreme Court, in Carey v. Saffold, 536 U.S. 214, 220 (2002), discussed the
word “pending” as used in § 2244(d)(2): “The dictionary defines ‘pending’ (when used as
an adjective) as ‘in continuance’ or ‘not yet decided.’ It similarly defines the term (when
used as a preposition) as ‘through the period of continuance ... of,’ ‘until the ... completion
of.’ ” 536 U.S. at 219, (quoting Webster’s Third New International Dictionary 1669 (1993)).
Carey held that a state post-conviction application “remains pending” “as long as the
ordinary state collateral review process is ‘in continuance’- i.e., ‘until the completion of’ that
process. In other words, until the application has achieved final resolution through the State’s
post-conviction procedures, by definition it remains ‘pending.’” Carey, 536 U.S. at 219-220.
In Lawrence, 549 U.S. at 332, the Supreme Court stated that “[s]tate review ends when the
state courts have finally resolved an application for state postconviction relief. After the
State’s highest court has issued its mandate or denied review, no other state avenues for
relief remain open.”

        Other circuits have addressed similar fact situations. Specifically, the Fifth, Tenth
and Eleventh Circuits have concluded that the one-year time period is tolled during the
period in which a motion for rehearing or reconsideration of post-conviction relief is allowed
by the state. Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001) (holding that
“AEDPA’s one-year statute of limitations is tolled during the period in which a Texas habeas
No. 08-1019                   Sherwood v. Prelesnik                                                   Page 7


                                                                     1
petitioner has filed such a motion [for reconsideration]”) ; Serrano v. Williams, 383 F.3d
1181, 1187 (10th Cir. 2004) (limitations period was tolled during the period state’s
procedural rules allowed for filing a motion for rehearing); Nix v. Sec’y for Dept. of
Corr., 393 F.3d 1235, 1237 (11th Cir. 2004) (“a motion for state court rehearing falls
within the category of ‘State post-conviction or other collateral review’”). The Seventh
Circuit, however, reached a different conclusion. Jones v. Hulick, 449 F.3d 784, 789
(7th Cir. 2006) (an untimely motion for reconsideration did not continue to toll the
limitations period); Wilson v. Battles, 302 F.3d 745, 748 (7th Cir. 2002) (“Any [state]
provision allowing time for a rehearing petition has no bearing on AEDPA’s one-year
statute of limitations”).2

         Michigan Court Rule 7.313(E) permits a party to bring a motion for
reconsideration within twenty-one days of the date an order is entered, and states that
“the filing of a motion for reconsideration does not stay the effect of the order addressed
in the motion.” However, in Michigan, an application for leave to appeal also does not
ordinarily stay the effect of the judgment. Mich. Ct. R. 7.209(A)(1), 7.302(I). In the
instant case, neither Sherwood’s application for leave to appeal the denial of his post-
conviction motion nor his motion for rehearing of the Michigan Supreme Court’s denial
of that application stayed the effect of the order or judgment addressed in the application
or motion. Nevertheless, it is undisputed that Sherwood’s post-conviction motion was
pending for § 2244(d)(2) purposes until his application for leave to appeal was denied
by the Michigan Supreme Court. In this context, the fact that Sherwood’s motion for
rehearing did not stay the proceedings is not dispositive.

         The twenty-one day time limit for filing a motion for rehearing in the Michigan
Supreme Court is jurisdictional. A motion filed beyond that time will not be accepted


         1
           Brooks v. Walls, 301 F.3d 839, 841 (5th Cir. 2002), abrogated Emerson to the extent it held that
“petitions untimely under state rules nonetheless may be deemed ‘properly filed.’” No such issue is
involved here.
         2
             The Wilson court noted that although Illinois Supreme Court Rule 367 provides that a party can
file a petition for rehearing within 21 days after a reviewing court’s ruling in a case, Illinois case law made
clear that the judgment was final on the day it was entered. The court further observed that Wilson had
never filed a petition for rehearing, further undermining his argument. Wilson, 302 F.3d at 748.
No. 08-1019              Sherwood v. Prelesnik                                        Page 8


by the court. Here, Sherwood did not attempt to resuscitate a claim that had already
expired. Further, unlike the petitioner in Wilson, 302 F.3d at 748, Sherwood actually
filed a timely motion for reconsideration, and the Michigan Supreme Court thus had a
timely filed motion over which it had jurisdiction pending before it until April 24, 2007,
when it denied the motion. Because state application for state post-conviction review
remained “pending,” AEDPA’s one-year statute of limitations was tolled until April 24,
2007.

                                            III.

        Sherwood acknowledges that even if this court finds that his motion for
reconsideration continued to toll the statute of limitations, his petition was still untimely
by four days. Sherwood requests that the court find that he is entitled to equitable tolling
based on his reliance on Abela, 348 F.3d 164, which was overruled by the Supreme
Court on February 20, 2007 in Lawrence, 127 S. Ct. 1079.

        “Because AEDPA’s one-year statute of limitations is not jurisdictional, a
petitioner who misses the deadline may still maintain a viable habeas action if the court
decides that equitable tolling is appropriate.” Allen, 366 F.3d at 401. “Federal courts
have typically extended equitable relief only sparingly.” Griffin, 399 F.3d at 635. When
deciding whether equitable tolling should apply, courts evaluate the following factors:

        (1) the petitioner’s lack of notice of the filing requirement; (2) the
        petitioner’s lack of constructive knowledge of the filing requirement;
        (3) diligence in pursuing one’s rights; (4) absence of prejudice to the
        respondent; and (5) the petitioner’s reasonableness in remaining ignorant
        of the legal requirement for filing his claim.
Id. “These five factors ‘are not comprehensive, nor is each of the five factors relevant
in all cases.’” Id. “Instead, courts must consider equitable tolling on a ‘case-by-case
basis.’” Id.

        In its December 13 order, without addressing Abela v. Martin and Lawrence v.
Florida, the district court declined to grant Sherwood equitable tolling, stating:
No. 08-1019             Sherwood v. Prelesnik                                          Page 9


        [T]he court remains convinced that equitable tolling is not warranted. . . .
        Petitioner has not demonstrated that he was diligently pursuing his rights
        or that some extraordinary circumstance stood in the way of timely
        compliance. Accordingly, the Court finds that Petitioner has not met the
        burden of establishing equitable tolling and that issuance of a certificate
        of appealability remains inappropriate.
Sherwood v. Prelesnik, No 1:07-CV-425, 2007 WL 4358179 at *1.

        The Supreme Court’s decision in Lawrence overruled this court’s holding in
Abela v. Martin. In Abela, this court held that the statute of limitations was “tolled from
the filing of an application for state post-conviction or other collateral relief until the
conclusion of the time for seeking Supreme Court review of the state’s final judgment
on that application independent of whether the petitioner actually petitions the Supreme
Court to review the case.” Abela, 348 F.3d at 172-73. Lawrence overruled Abela,
holding that the “filing of a petition for certiorari before this Court does not toll the
statute of limitations under § 2244(d)(2).” Lawrence, 127 S. Ct. at 1086. The Court
found that the tolling provision contained in § 2244(d)(2) applies only to state post-
conviction or collateral remedies, and that a petition for certiorari seeking review of a
state’s denial of post-conviction relief is a federal post-conviction remedy. Id. at 1083.

        Sherwood waited 363 days from the time his conviction became final until he
filed his post-conviction motion, tolling the one-year period with only two days
remaining. Sherwood argues that under Abela, at the time he filed his state post-
conviction motion, “he had ninety days from the denial of the state court motion for
rehearing” to file his habeas petition. “By the time the rules changed, counsel had
effectively no opportunity to alter the course of Mr. Sherwood’s ‘ship.’”

        Respondent asserts that the equitable tolling factors weigh against granting
Sherwood relief. Respondent points out that Abela had been “overruled for two months
before Petitioner’s motion for reconsideration was denied,” and that Sherwood did not
diligently pursue his rights, as he “wait[ed] until the last possible day under the statute
of limitations,” and thus “created a serious risk of filing untimely.”           However,
respondent’s argument ignores that Sherwood (through counsel) made a crucial decision
when he opted to file his state post-conviction motion, rather than file a petition for writ
No. 08-1019             Sherwood v. Prelesnik                                    Page 10


of habeas corpus in federal court. At the time that decision was made, Abela assured that
Sherwood would have an additional ninety days after the Michigan Supreme Court’s
denial of an application for leave to appeal in which to file a petition for habeas corpus
under § 2244(d)(2). Thus, although Lawrence was decided before Sherwood’s motion
for reconsideration was denied, Sherwood had already relied on Abela.

       Lastly, we observe that there is no indication that Sherwood or his counsel
proceeded in bad faith or without due diligence. It was reasonable for Sherwood’s
counsel to rely on Abela when deciding when to file his post-conviction motion.
Accordingly, Sherwood is entitled to equitable tolling.

       We REVERSE the district court’s order dismissing Sherwood’s habeas petition
as untimely.
