                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    _____________

                                     No. 00-1459SI
                                    _____________

Rick Lee Snow,                            *
                                          *
             Appellant,                   *
                                          * On Appeal from the United
      v.                                  * States District Court
                                          * for the Southern District
                                          * of Iowa.
John Ault,                                *
                                          *
             Appellee.                    *
                                     ___________

                           Submitted: November 16, 2000
                               Filed: January 9, 2001
                                   ___________

Before WOLLMAN, Chief Judge, McMILLIAN and RICHARD S. ARNOLD, Circuit
      Judges.
                              ___________

RICHARD S. ARNOLD, Circuit Judge.


        Rick Lee Snow, an Iowa prisoner, appeals from the District Court's1 order
dismissing his habeas petition as untimely under the one-year statute of limitations set
forth in 28 U.S.C. § 2244(d)(1). Snow argues that the District Court erred in failing to
toll the limitations period under § 2244(d)(2) for the 90 days following the denial of his

      1
      The Hon. Ronald E. Longstaff, Chief Judge, United States District Court for the
Southern District of Iowa.
second motion for post-conviction relief, the period within which he could have
petitioned the United States Supreme Court for a writ of certiorari. We affirm.

                                            I.

       On July 31, 1990, Snow's direct criminal appeal affirming his conviction became
final. On July 29, 1993, he filed a motion for state post-conviction relief. The motion
was denied, and Snow filed an appeal, but on February 23, 1996, he voluntarily
dismissed his appeal. On December 23, 1996, he filed a second state post-conviction
motion. This motion was summarily dismissed. On August 18, 1998, Snow's appeal
from the dismissal was denied as frivolous. On March 15, 1999, he filed the present
federal habeas petition. The District Court dismissed Snow's petition as untimely, and
granted a certificate of appealability on the timeliness question.

                                           II.

       We review the District Court's decision de novo. See Henderson-El v.
Maschner, 180 F.3d 984, 985 (8th Cir. 1999). Title 28 U.S.C. § 2244(d), as added by
the Antiterrorism and Effective Death Penalty Act of 1996, establishes a statute of
limitations for the filing of habeas petitions by state prisoners. This section, effective
April 24, 1996, includes its own tolling provision and provides, in relevant part, as
follows:

      (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 . . .




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      (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;[2]

                                         * * *

      (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.


       In Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S.
1187 (1999), this Court held that the running of the statute of limitations for purposes
of § 2244(d)(1)(A) is triggered by

      either (i) the conclusion of all direct criminal appeals in the state system,
      followed by either the completion or denial of certiorari proceedings
      before the United States Supreme Court; or (ii) if certiorari was not
      sought, then by the conclusion of all direct criminal appeals in the state
      system followed by the expiration of the [90 days] allotted for filing a
      petition for the writ.


The Court based this decision on the "well-established body of federal case law that
interprets the phrase 'final by the conclusion of direct review' to include an opportunity
to seek certiorari." Id.at 347.

       For cases such as this one, in which the conviction "became final" before the
effective date of the Act, this Circuit has adopted a one-year grace period, beginning


      2
        Section 2244(d)(1) lists three other alternative events which may trigger the
limitations period. It is undisputed that the date of the final judgment is the only
applicable provision here.
                                           -3-
April 24, 1996, and ending April 24, 1997, for the filing of habeas petitions. Nichols
v. Bowersox, 172 F.3d 1068, 1073 (8th Cir. 1999) (en banc) (grace period begins April
24, 1996); Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999) (grace period ends
April 24, 1997). The time between April 24, 1996, and December 23, 1996 (243 days)
counts against Snow. No proceeding of any kind was pending during that period. If
the time started running again on August 18, 1998, when his second post-conviction
proceeding was concluded in the state court, the year would expire on December 18,
1998, and his habeas petition would be untimely. But if this one-year period is tolled
for the 90 days following August 18, 1998, within which Snow could have filed a
petition for a writ of certiorari from the denial of his second post-conviction motion, his
habeas petition would be timely. Otherwise, his petition is time-barred.

      The State argues that (1) Snow's second post-conviction motion was not a
"properly filed" one because it was subject to dismissal as a successive motion under
Iowa law; and (2) even if it were "properly filed," it was "pending" only until his appeal
from the denial of the second motion was final in the state system.

                                           III.

       The State's first argument is foreclosed by the Supreme Court's recent decision
in Artuz v. Bennett, No. 99-1238 (U. S. Nov. 7, 2000), 2000 WL 1663653. The Court
there explained that the term "properly filed" merely means that the application for
post-conviction relief had been delivered and accepted for filing "in compliance with
the applicable laws and rules governing filings."

      The second issue — whether the limitations period is tolled for the 90 days
during which certiorari could have been sought — is one of first impression in this




                                            -4-
Circuit.3 We now join those circuits that have considered the matter and concluded that
§ 2244(d)(2) does not toll the statute of limitations for this 90-day period. See Isham
v. Randle, 226 F.3d 691, 695 (6th Cir. 2000); Coates v. Byrd, 211 F.3d 1225, 1227
(11th Cir. 2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); Rhine v. Boone,
182 F.3d 1153, 1155 (10th Cir. 1999), cert denied, 120 S. Ct. 808 (2000); see also
Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000).

       We reach this conclusion for two reasons. First, unlike § 2244(d)(1)(A), which
uses the phrase "became final by . . . expiration of the time for seeking [direct] . . .
review," a phrase that, as explained in Smith v. Bowersox, 159 F.3d at 348, takes into
account certiorari proceedings, § 2244(d)(2) contains no such language. " '[W]here
Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and
purposefully in the disparate inclusion and exclusion.' " Bates v. United States, 522
U.S. 23, 29-30 (1997) (quoted case omitted).

        Second, this result comports with the requirement that a state prisoner exhaust
state remedies before filing a federal habeas petition. Such exhaustion does not include
seeking certiorari from the state court's denial of post-conviction relief. Rhine v.
Boone, 182 F.3d at 1156. In sum, we conclude that the District Court correctly
dismissed Snow's habeas petition as time-barred.

      Accordingly, we affirm.




      3
       This issue was specifically left open in Peterson v. Gammon, 200 F.3d 1202,
1205 (8th Cir. 2000).
                                           -5-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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