                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 12a0060p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                               X
                                                -
 MURAD WILLIAMS,
                                                -
                           Petitioner-Appellee,
         v.                                     -
                                                -
                                                    No. 10-1441

                                                ,
                                                 >
                      Respondent-Appellant. -
 THOMAS BIRKETT,

                                                -
                                               N
                 Appeal from the United States District Court
                for the Eastern District of Michigan at Detroit.
              No. 07-15376—Arthur J. Tarnow, District Judge.
                            Argued: November 30, 2011
                       Decided and Filed: February 29, 2012
           Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.

                                _________________

                                     COUNSEL
ARGUED: Janet A. Van Cleve, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Loren E. Khogali, FEDERAL
DEFENDER OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Brad H. Beaver,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellant. Loren E. Khogali, Natasha D. Webster, FEDERAL DEFENDER OFFICE,
Detroit, Michigan, for Appellee.
                                _________________

                                     OPINION
                                _________________

       ROGERS, Circuit Judge. The warden appeals Murad Williams’s unconditional
grant of federal habeas relief under 28 U.S.C. § 2254. The district court held that the
habeas petition was filed within the one-year time limit of AEDPA based in part on the
court’s determination that Williams’s untimely second state collateral attack was
“properly filed” so as to toll the limitations period. See 28 U.S.C. § 2244(d)(2).


                                          1
No. 10-1441         Williams v. Birkett                                            Page 2


Because Michigan law does not allow the filing of second motions for post-conviction
relief, with two exceptions not applicable in Williams’s case, Williams’s second motion
was not “properly filed” under the reasoning of the Supreme Court’s decision in Pace
v. DiGuglielmo, 544 U.S. 408 (2005). Williams’s habeas petition was therefore not
timely, unless equitable tolling is warranted. The district court did not reach the issue
of equitable tolling, and remand is warranted to determine whether the statute of
limitations in Williams’s case may be equitably tolled.

        In 2003, Murad Williams pled guilty to unarmed robbery under M.C.L.
§ 750.530. Judge Maggie Drake presided over the hearing in Wayne County, Michigan.
The underlying crime, which occurred when Williams was 17 years old, appears to have
been relatively minor: Williams jumped out of a car, hit an individual that he knew in
the stomach, and stole ten dollars. Williams was 18 years old at the time of his plea, had
no prior criminal history, and had not finished high school. Williams’s mother informed
Judge Drake that her son suffered from A.D.H.D. and had been in special education
classes since the first grade.

        On March 12, 2004, Williams appeared before the state trial court for sentencing.
Despite reservations about Williams’s “attitude,” Judge Margie Braxton sentenced
Williams to probation under the Holmes Youthful Trainee Act, on the condition that he
serve 90 to 120 days in a boot camp program. Michigan’s Holmes Youthful Trainee Act
“allows certain youthful offenders to plead guilty and complete a youth training
program, during which the entry of a judgment of conviction is held in abeyance. If the
offender successfully completes the program, the charges are dismissed and there is no
conviction.” Does v. Munoz, 507 F.3d 961, 965 (6th Cir. 2007) (citation omitted). See
M.C.L.A. § 762.11. Williams’s initial sentencing guidelines range was zero to 11
months, and Williams was warned that if he “quit[] or [did] not fulfill the requirements
of Boot Camp,” he would be sent to prison.

        On May 3, 2004, less than two months after his initial sentencing, Williams was
referred back to the trial court for violating the rules of the boot camp program. Judge
Drake, who had heard Williams’s initial guilty plea, presided over the hearing. Friends
No. 10-1441        Williams v. Birkett                                             Page 3


and family spoke at the hearing, offering to provide Williams with counseling and
employment if the court allowed him to continue on probation. However, Judge Drake
found that Williams had failed to comply with the terms of his probation and sentenced
him to 1 to 15 years in prison. The hearing took only 20 minutes. Williams served a
total of 6 years in prison because he was repeatedly denied parole.

       Williams did not file a direct appeal from his sentence. Thus, the judgment for
revocation of his probation became final for the purposes of the federal habeas statute
of limitations, 28 U.S.C. § 2244(d)(1)(A), on May 3, 2005, after the one-year time limit
for filing a direct appeal in the Michigan Court of Appeals expired pursuant to Michigan
Court Rules (“M.C.R.”) 7.205(F)(3). See Jagodka v. Lafler, 148 F. App’x 345, 346 (6th
Cir. 2005). On September 1, 2005, Williams requested the appointment of appellate
counsel. On November 28, 2005, about seven months after the judgment became final,
appellate counsel filed the first motion for relief from judgment pursuant to M.C.R.
6.500 et. seq. At a hearing before Judge Drake on January 23, 2006, the trial court
denied the motion. Judge Drake explained that since Williams had been warned at his
original sentencing, he would not be entitled to a subsequent probation-violation hearing.
Also on January 23, 2006, Williams submitted an application for leave to appeal to the
Michigan Court of Appeals.

       On June 19, 2006, while his first post-conviction motion was pending in the
Michigan Court of Appeals, Williams filed a second motion for relief from judgment in
the state trial court. On August 2, 2006, the Michigan Court of Appeals denied
Williams’s application for leave to appeal the denial of his first post-conviction motion.
On September 18, 2006, Williams filed a pro se application for leave to appeal to the
Michigan Supreme Court.

       Eleven days later, on September 29, 2006, the state trial court rejected Williams’s
second post-conviction motion and returned it to Williams, stating that because Williams
had already filed a previous motion for relief from judgment, he was precluded under
M.C.R. 6.502(G) from filing a second or successive motion. In addition to the letter
returning the motion, the court also filed a brief one-sentence order denying the second
No. 10-1441           Williams v. Birkett                                                       Page 4


motion. The Michigan Supreme Court then denied Williams leave to appeal the denial
of his first post-conviction motion on December 13, 2006. On September 21, 2007,
Williams filed an application for leave to appeal the denial of his second post-conviction
motion in the Michigan Court of Appeals. On October 26, 2007, the Michigan Court of
Appeals dismissed Williams’s appeal because M.C.R. 6.502(G)(1) precludes a defendant
from appealing the denial or rejection of a successive motion for relief from judgment.
Williams did not seek leave to appeal this denial in the Michigan Supreme Court.

         On December 13, 2007, Williams filed a pro se petition for writ of habeas corpus
in the federal district court below.1 Williams also filed a motion requesting equitable
tolling to allow his petition to proceed as timely. The state filed a motion to dismiss the
habeas corpus petition on the ground that it was barred by the statute of limitations found
in 28 U.S.C. § 2244(d)(1). The district court denied the state’s motion to dismiss,
determining that Williams’s habeas petition was timely because it was tolled while the
second motion for relief from judgment was pending in state court. Though a successive
motion for relief from judgment is barred under M.C.R. 6.502(G)(1), the district court
held that according to this court’s decision in Palmer v. Carlton, 276 F.3d 777, 779 (6th
Cir. 2002), successive motions will toll the limitations period pursuant to 28 U.S.C.
§ 2244(d)(2). See also Brown v. Burt, 224 F. Supp. 2d 1152, 1155-56 (E.D. Mich. 2002).
Therefore, according to the district court, “[t]he limitations period in this case was tolled
until at least October 26, 2007, when the Michigan Court of Appeals dismissed
petitioner’s second post-conviction appeal.” Because Williams’s habeas petition was
determined to be timely, the district court did not address Williams’s equitable tolling
arguments. The district court also ordered the state to file an answer to the habeas
petition, which the state did. The district court referred the case to a magistrate judge,
who recommended that the petition be granted and that a conditional writ of habeas
corpus be issued. After an evidentiary hearing, the district court issued Williams an



         1
           Williams states in his brief that the petition was filed on December 18, 2007. However, the
district court determined that because the petition was dated and signed on December 13, 2007, according
to the prison mailbox rule, December 13 was the appropriate date to consider when assessing AEDPA’s
one-year limitations period. See Hudson v. Martin, 68 F. Supp. 2d 798, 799 n.2 (E.D. Mich. 1999).
No. 10-1441         Williams v. Birkett                                              Page 5


unconditional writ of habeas corpus on ineffective-assistance-of-counsel and due-process
grounds. The state appeals.

        Both parties agree that Williams’s first motion for post-conviction relief, which
was filed on November 28, 2005, tolled the limitations period until December 13, 2006,
when the Michigan Supreme Court denied leave to appeal. By the time Williams had
filed his first post-conviction motion, 209 days had already elapsed. The parties now
disagree as to whether Williams’s second post-conviction motion, filed on June 19,
2006 (while Williams’s first post-conviction motion was pending), was properly filed
and thus tolled the remaining 156 days. According to the district court and Williams,
the second post-conviction motion was properly filed, and therefore the one-year limit
should have expired on March 30, 2008, 156 days after the Michigan Court of Appeals
denied his application to appeal the denial of his second post-conviction motion. This
would have meant that Williams’s habeas petition, filed on December 13, 2007, would
have been timely. However, because Williams’s second state post-conviction motion
was successive and thus not “properly filed,” the state argues that the one-year time limit
expired 156 days after December 13, 2006, the day that the Michigan Supreme Court
rejected his application to appeal his first post-conviction motion. This means that
Williams’s one-year limit actually expired on May 18, 2007, and thus his habeas corpus
petition was not timely.

        The State is correct on this point. Because Williams’s second post-conviction
motion was not “properly filed” under § 2244(d)(2), his successive motion did not toll
the statute of limitations and thus Williams’s habeas petition was statutorily untimely.
It is true that the Supreme Court has held that a substantive basis for rejecting a state
collateral attack—such as procedural default—does not keep a post-conviction motion
from being “properly filed.” Artuz v. Bennett, 531 U.S. 4, 10-11 (2000). But the
Supreme Court later clarified that an untimely post-conviction motion is not “properly
filed,” even if the state law provides claim-specific exceptions to the applicability of the
time limit. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
No. 10-1441         Williams v. Birkett                                               Page 6


        Even though Williams’s case does not involve a time limit, the case is more like
Pace than Artuz. Section 2244(d)(2) provides that the “time during which a properly
filed application for State post-conviction or other collateral review . . . is pending shall
not be counted toward any period of limitation under this subsection.” 28 U.S.C.
§ 2244(d)(2) (emphasis added). The Supreme Court has defined “properly filed” as
“when [an application’s] delivery and acceptance are in compliance with the applicable
laws and rules governing filings.” Artuz, 531 U.S. at 8. Michigan law, instead of
imposing a time limit on successive motions, flatly forbids them, unless they fall within
two narrow exceptions: motions based on (1) “a retroactive change in law that occurred
after the first motion for relief from judgment,” or (2) “a claim of new evidence that was
not discovered before the first such motion.”            M.C.R. 6.502(G)(2).       Because
impermissible successive motions cannot be filed, they cannot be “accepted” by the state
court and thus are not “properly filed” for tolling purposes under § 2244(d)(2).

        In Pace, the Supreme Court held that an untimely post-conviction motion was
not “properly filed” under § 2244(d)(2), and thus did not toll AEDPA’s one-year time
limitation. The Court reasoned that “a petition that cannot even be initiated or
considered . . . is not ‘properly filed,’” and timeliness “go[es] to the very initiation of a
petition and a court’s ability to consider that petition.” Pace, 544 U.S. at 417. Similarly,
M.C.R. 6.502(G)(1) is “a condition to filing, as opposed to a condition on obtaining
relief,” Artuz, 531 U.S. at 11, because like the timeliness rule in Pace, Michigan’s rule
against successive motions prevents a second petition from even being considered by the
court. See Rodriguez v. McQuidgen, No. 08-CV-13263, 2009 WL 2742004, at *8 (E.D.
Mich. Aug. 25, 2009). Therefore, Williams’s second motion was not “properly filed,”
and his subsequent habeas petition was untimely.

        Though there are two exceptions to Michigan’s bar to successive motions for
relief from judgment, M.C.R. 6.502(G)(2), the timeliness requirement in Pace contained
almost identical exceptions. The Michigan rule allows for successive motions when
there is “a retroactive change in law that occurred after the first motion for relief from
judgment” or “a claim of new evidence that was not discovered before the first such
No. 10-1441         Williams v. Birkett                                               Page 7


motion,” id.; similarly, the Pennsylvania timeliness rule discussed in Pace included
exceptions for when “a new constitutional rule is made retroactive” or “if new facts arise
that could not have been discovered through due diligence,” Pace, 544 U.S. at 410 n.1
(citing 42 Pa. Cons. Stat. §§ 9545(b)(1)(ii)-(iii)).         In examining the timeliness
exceptions, the Supreme Court reasoned that according to the “common understanding”
of “properly filed,” “a petition filed after a time limit, and which does not fit within any
exceptions to that limit, is no more ‘properly filed’ than a petition filed after a time limit
that permits no exception.” Pace, 544 U.S. at 413. According to this rationale, the
similar exceptions to the Michigan rule forbidding successive motions do not provide
a basis for distinguishing Pace.

        Williams argues that because the exceptions require a judge to determine if they
apply, they do not go to the very initiation of a petition. But the Supreme Court in Pace
explicitly rejected the argument that rules that “necessitate judicial scrutiny,” such as
“jurisdictional matters and fee payments,” may not still be considered “condition[s] to
filing.” Id. at 414-15 (discussing Artuz, 531 U.S. at 9). In Pace, the Supreme Court
“fail[ed] to see how timeliness [even with judicially considered exceptions] is any less
[of] a ‘filing’ requirement than the mechanical rules that are enforceable by clerks, if
such rules exist.” Pace, 544 U.S. at 415. The Court further noted that if “conditions of
filing” were limited to those situations solely handled by the clerk, as Williams also
argues, few if any rules would constitute “filing” conditions. Id. at 415 n.5. Therefore,
even though M.C.R. 6.502(G)(2) may require judicial scrutiny to determine whether an
exception applies, that does not require this court to hold that a successive motion in
Michigan may be considered “properly filed.” Indeed, the exceptions to untimeliness
discussed and dismissed in Pace, including retroactivity of the law and the discovery of
new facts, are similar to those in M.C.R. 6.502(G)(2). See Pace, 544 U.S. at 410 n.1,
416.

        Further justifying the application of Pace to this case, the Supreme Court notably
relied on the federal second or successive motion provision in rejecting an argument
concerning applications versus applying a condition on a claim-by-claim basis. In Pace,
No. 10-1441        Williams v. Birkett                                            Page 8


the petitioner argued that because § 2244(d)(2) refers to a “properly filed application,”
a condition that must be applied on a claim-by-claim basis could not be considered a
“condition to filing.” Pace, 544 U.S. at 415. However, the Supreme Court explicitly
rejected this argument, noting that although § 2244(b)(3)(c) refers to successive
applications, applying the “requirements” of the subsection involves inquiries into
specific claims similar to the exceptions in M.C.R. 6.502(G)(2): namely, whether a claim
relies on a new rule that was made retroactive, § 2244(b)(2)(A), or a new factual
predicate, § 2244(b)(2)(B). Pace, 544 U.S. a 415-16.

       This reasoning supports the application of Pace to Michigan’s provision barring
second or successive post-conviction motions. Like § 2244(b)(3)(C), which refers to the
entire application, M.C.R. 6.502(G)(1) states that “successive motions” should be denied
“[e]xcept as provided in subrule (G)(2).” Subrule G(2), like the requirements in
§ 2244(b)(2)(A) and (B), allows for the filing of a successive petition in Michigan state
court if there is a claim based upon a “retroactive change in law” or a “claim of new
evidence.” The fact that a state judge must examine a successive motion in Michigan
to determine whether one of the exceptions in M.C.R. 6.502(G)(2) applies is no different
than the federal rule relied upon in Pace where a federal judge must see whether any of
the requirements for filing a successive motion are met.

       The determination that Williams’s second motion was not “properly filed” under
M.C.R. 6.502(G), and thus did not toll the statute of limitations under AEDPA, is
supported by our decision, albeit unpublished, in Geno v. Metrish, 393 F. App’x 299,
300 n.1 (6th Cir. 2010). In Geno, we examined M.C.R. 6.502(G) and held that a
successive motion denied by a Michigan state court “[does] not serve to toll the
limitations period, because the Michigan courts [have] held it was an impermissible
successive motion for relief from judgment, and thus it was not ‘properly filed’ under
28 U.S.C. § 2244(d)(2).” Id. The district courts in Michigan have generally reached the
same conclusion, although a couple of opinions are to the contrary. A forceful analysis
is contained in Rodriguez v. McQuidgen, No. 08-CV-13263, 2009 WL 2742004, at *8
(E.D. Mich. Aug. 25, 2009), which determined that “[t]he Michigan rule barring second
No. 10-1441        Williams v. Birkett                                             Page 9


or successive motions for relief from judgment is . . . akin to the state timeliness rule
considered in Pace” and thus “a second motion rejected under Rule 6.502(G) does not
toll the limitations period.” See also Smith v. Ludwick, No. 2:08-CV-12567, 2010 WL
1139332, at *2 (E.D. Mich. Mar. 24, 2010) (holding that a motion barred by M.C.R.
6.502(G) is not “properly filed” and thus does not toll the limitations period); Smith v.
Berghuis, No. 07-14140, 2008 WL 2357696, at *2 (E.D. Mich. June 9, 2008) (same);
Raines v. Berghuis, No. 07-10605, 2008 WL 2157049, at *4 (E.D. Mich. May 22, 2008)
(same); Smith v. Berghuis, No. 1:07-CV-1179, 2008 WL 724166, at *6 (W.D. Mich.
Mar. 17, 2008) (same); and Mardenli v. Berghuis, No. 1:07-CV-1078, 2008 WL 696600,
at *5 n.3 (W.D. Mich. Mar. 13, 2008) (same). But see Cristini v. McKee, No. 01-CV-
74483DT, 2003 WL 21817823, at *3 (E.D. Mich. July 9, 2003) (reaching the opposite
conclusion in dicta); Brown v. Burt, 224 F. Supp. 2d at 1155-56 (reaching the opposite
conclusion).

       We do not need to rely on the language of the Michigan statute requiring the
court to “return without filing” any successive motion, although if anything the language
cuts in the direction of our holding. M.C.R. 6.502(G)(1) provides:

       [R]egardless of whether a defendant has previously filed a motion for
       relief from judgment, after August 1, 1995, one and only one motion for
       relief from judgment may be filed with regard to a conviction. The court
       shall return without filing any successive motions for relief from
       judgment. A defendant may not appeal the denial or rejection of a
       successive motion.

M.C.R. 6.502(G)(1) (emphasis added).

       Our decision in Palmer v. Carlton, 276 F.3d 777, 779 (6th Cir. 2002), which
reasoned that an unpermitted second Tennessee post-conviction motion was nonetheless
“properly filed,” does not require a similar result in this case. Most importantly, Palmer
was decided more than three years before Pace, and the analysis in Pace controls here.
In addition, our reasoning regarding whether the second Tennessee post-conviction
motion was “properly filed” was not strictly necessary to our holding in Palmer, as the
habeas petition was ultimately held to be untimely for alternative reasons. Id. at 779-80.
No. 10-1441         Williams v. Birkett                                             Page 10


        Finally, Williams argues that his second post-conviction motion was “properly
filed” because the court entered an order denying the motion, and thus “a defendant
[would] believe that his motion had been properly filed.” This goes more to whether
the statute should be equitably tolled than to whether the motion was “properly filed.”
It should be noted, in addition, that Williams received a letter from the trial court on
September 29, 2006, explaining that the motion was being “return[ed] . . . in accordance
with M.C.R. 6.502(G)(1) & (2).”

        Because Williams’s second post-conviction motion was denied under M.C.R.
6.502(G), and thus was not “properly filed” under § 2244(d)(2), his successive motion
did not toll AEDPA’s one-year time limitation. Therefore, Williams’s habeas petition
was untimely, unless equitably tolled. The district court did not address the issue of
equitable tolling because the court held that the statute of limitations had not expired at
the time that Williams filed his federal habeas petition. As the question of “[w]hether
equitable tolling is warranted is a fact-intensive inquiry best left to the district courts,”
Robertson v. Simpson, 624 F.3d 781, 785-86 (6th Cir. 2010), the district court should
rule on equitable tolling in the first instance.

        The judgment is vacated and remanded for further proceedings consistent with
this opinion.
