       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    King v. Bell                                 No. 02-5602
    ELECTRONIC CITATION: 2004 FED App. 0257P (6th Cir.)
                File Name: 04a0257p.06                                        _________________
                                                                                  OPINION
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                         BOGGS, Chief Judge. This case already has a three-year
                _________________                         history, although the would-be petitioner, Tommy King, has
                                                          yet successfully to file his petition for habeas relief. Upon
 TOMMY KING,                      X                       examination, this panel unanimously agrees that oral
          Petitioner-Appellant, -                         argument is not needed. Fed. R. App. P. 34(a). Because our
                                   -                      decision in Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir.
                                   -  No. 02-5602         2003) (en banc), cert. denied sub nom. Caruso v. Abela, 124
            v.                     -                      S. Ct. 2388 (2004), and the doctrine of equitable tolling
                                    >                     preclude the government from asserting a valid statute of
                                   ,                      limitations defense in this case, we reverse the grant of
 RICKY BELL, Warden,               -
          Respondent-Appellee. -                          summary judgment against King and remand for
                                                          consideration of the merits of his petition.
                                 N
       Appeal from the United States District Court                                      I
    for the Middle District of Tennessee at Columbia.
  No. 00-00017—Robert L. Echols, Chief District Judge.      Tommy King was convicted of murder and sentenced to
                                                          death. The Tennessee Supreme Court denied him relief both
                Submitted: June 11, 2004                  on direct appeal, State v. King, 694 S.W.2d 941 (Tenn. 1985),
                                                          and after post-conviction proceedings. King v. State, 992
          Decided and Filed: August 3, 2004               S.W.2d 946 (Tenn. 1999). King then petitioned the Supreme
                                                          Court for certiorari, which was denied on November 15,
Before: BOGGS, Chief Judge; and MERRITT and SILER,        1999. King v. Tennessee, 528 U.S. 1007 (1999).
                  Circuit Judges.
                                                             In February 2000, King filed a notification of intent to file
                  _________________                       a habeas petition in the Middle District of Tennessee and
                                                          requested appointed counsel, which was provided. On March
                       COUNSEL                            30, 2000, the parties agreed at a status conference that King’s
                                                          attorneys would have six months to prepare their petition but
ON BRIEF: Kelley J. Henry, Paul R. Bottei, FEDERAL        that no amendments to the petition would be permitted.
PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for       Senior Judge Higgins issued an order to that effect, setting a
Appellant. Alice B. Lustre, Michael E. Moore, OFFICE OF   deadline of September 29, 2000 for the petition to be filed.
THE ATTORNEY GENERAL, Nashville, Tennessee, for           On August 23, 2000, King’s attorneys filed a motion to have
Appellee.                                                 the voir dire from King’s trial transcribed, which the court
                                                          granted. When the transcription was delayed, the State agreed

                            1
No. 02-5602                                 King v. Bell     3    4    King v. Bell                                No. 02-5602

on September 28, 2000 (within the original six-month time-        should be sufficient). We do not need to resolve this question
frame) that King would have 15 days after receiving the           now.
transcripts to file his habeas petition. In January 2001, Judge
Higgins transferred the case to Judge Echols.                        It is debatable whether the government waived its statute of
                                                                  limitations defense when it agreed to the filing schedule,
   The transcripts were finally ready in June 2001, and King      established in March 2000, that provided for the petition to be
filed his petition within the allotted 15 days. The government    filed in September 2000, more than a year after the final state
responded with a motion to dismiss, citing 28 U.S.C.              action. However, our holding in Abela places the original
§ 2244(d)(1), which states that a petitioner must file for        filing period well within the limitations period. The issue of
habeas relief within one year of a final state judgment. The      whether agreement to a particular briefing schedule
Tennessee Supreme Court had denied King post-conviction           constitutes an implicit waiver of a statute of limitations
relief on June 7, 1999, and thus the State argued that King had   defense is therefore moot, and we express no opinion on the
missed his filing deadline by over a year. The district court     subject. See Benes v. United States, 276 F.2d 99, 109 (6th
sua sponte changed the motion to dismiss to a motion for          Cir. 1960).
summary judgment and granted it on the statute of limitations
grounds, following the calculation rules in effect at the time.     After the Tennessee Supreme Court denied him post-
King appealed to this court and we ordered briefing on the        conviction relief, King petitioned for certiorari to the United
statute of limitations issue only.                                States Supreme Court. When the district court considered the
                                                                  timeliness of King’s petition, the limitations period was not
                              II                                  tolled during the 90-day period that a defendant could petition
                                                                  for certiorari to the Supreme Court. Isham v. Randle, 226
  King’s one-year window to file a habeas petition opened         F.3d 691, 695 (6th Cir. 2000). However, Abela overruled
when the Tennessee Supreme Court denied him                       Isham, and under our subsequent holding, King’s limitations
post-conviction relief on June 7, 1999.             28 U.S.C.     period was tolled from June 7 to November 15, 1999, when
§ 2244(d)(1). The statute provides that “[t]he time during        the Court denied certiorari. Abela, 348 F.3d at 172-73. King
which a properly filed application for State post-conviction or   was required to file his habeas petition by November 15,
other collateral review with respect to the pertinent judgment    2000, a year after the United States Supreme Court action.
or claim is pending shall not be counted toward any period of     Appellee Br. at 17 (stating correctly that “[u]nder Abela, the
limitation under this subsection.” 28 U.S.C. § 2244(d)(2).        time period . . . expired on November 15, 2000). The
We have not decided whether a notice of intent to file a          government accurately states that even using the November
petition for habeas relief, which King did eight months after     15, 2000 date, King missed the deadline. Ibid. However, we
the Tennessee decision, is sufficient to satisfy statute of       decline to hold him responsible for a delay caused by the
limitations requirements. See Williams v. Coyle, 167 F.3d         government and acknowledged by the court when it issued a
1036, 1040 n.4 (6th Cir. 1999) (expressing no opinion on          modified filing schedule with the consent of the parties.
whether filing of an intent to petition for habeas relief and a
motion for the appointment of counsel can satisfy the                                          III
timeliness requirements under AEDPA); but see id. at 1041
(Kennedy, J. dissenting) (arguing that such notification            If King had filed his petition in September 2000, as
                                                                  originally agreed, it would have been timely. Only the
No. 02-5602                                  King v. Bell     5    6     King v. Bell                                    No. 02-5602

government’s failure to produce the voir dire transcripts          inquiry.” Griffin v. Rogers, 308 F.3d 647, 654 -55 (6th Cir.
prevented him from complying with the court’s original             2002).
scheduling order. When the delay began to affect King’s
ability to comply with the September 29, 2000 deadline, the           In this case, King was diligent about pursuing his rights:
court ordered, with the government’s concurrence, that King’s      within nine months of denial of post-conviction relief, he had
petition be due 15 days after the transcripts were provided.       filed a petition for certiorari, an intent to file a habeas petition,
King complied with that order. Therefore, we apply the             received counsel, and had established a filing schedule.
doctrine of equitable tolling to hold that King’s petition was     Furthermore, he did not file according to the original schedule
timely filed.                                                      only because the government did not comply timely with a
                                                                   court order to produce voir dire transcripts. When King filed
  Equitable tolling is permissible under the Anti-Terrorism        within the court-allotted 15 days after receiving the
and Effective Death Penalty Act (AEDPA), although rare.            transcripts, he had no reason to anticipate any procedural
Dunlap v. United States, 250 F.3d 1001, 1009 (6th Cir. 2001)       difficulties: he had complied with the court-approved
(“the circumstances under which this Court has found               schedule, as modified in September 2000, and with the
equitable tolling appropriate are in fact few in number”). We      court’s original order to include all his arguments in one
review de novo a district court’s decision not to apply            petition. Therefore, we cannot expect that he would have
equitable tolling, Id. at 1007, and generally consider the         known that the effect of the delay, over which he had no
following factors: “(1) lack of actual notice of filing            control, would be the loss of his ability to file a petition at all.
requirement; (2) lack of constructive knowledge of filing          The facts of this case constitute one of the rare occasions in
requirement; (3) diligence in pursuing one's rights;               which equitable tolling under AEDPA is appropriate.
(4) absence of prejudice to the defendant; and (5) a plaintiff's
reasonableness in remaining ignorant of the notice                    The court chose to accommodate the government’s delay in
requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.          providing King with the voir dire transcripts by issuing a
1988).      The Andrews factors are not necessarily                modified scheduling order and in doing so equitably tolled the
comprehensive or always relevant; ultimately every court           statute of limitations, given the circumstances of this case.
must consider an equitable tolling claim on a case-by-case         See In re Maughan, 340 F.3d 337, 344 (6th Cir. 2003)
basis. Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002).       (ordering time to file extended until the adverse party
                                                                   produced missing documents); Glarner v. United States Dep’t
  When the petitioner does not claim ignorance of the filing       of Veterans Admin., 30 F.3d 697, 701 (6th Cir. 1994) (holding
requirement, this court's inquiry is focused on examining his      that because “the VA failed in a legal duty to Glarner,” by not
diligence in pursuing his rights and the reasonableness of his     providing him with the proper form, his claim under the
ignorance of the effect of his delay. Vroman v. Brigano, 346       Federal Torts Claim Act was equitably tolled). Otherwise, the
F.3d 598, 605 (6th Cir. 2003). Although the petitioner             government could prevent any defendant from filing a timely
generally bears the burden to provide all the evidence to show     claim simply by failing to produce relevant evidence in a
that equitable tolling is warranted, that rule does not apply in   reasonable period, agreeing to a court-approved extended
the habeas context, which is “governed by rules that               filing schedule, and then sandbagging him with a statute of
explicitly recognize the State’s superior access to the record     limitations defense.
and explicitly require that the State provide certain elements
of the evidence that are relevant to an equitable tolling
No. 02-5602                       King v. Bell   7

                       IV
  We REVERSE the grant of summary judgment to the
government and REMAND for consideration of King’s
petition on the merits.
