                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1230
                                    ___________

Stephen C. Curtiss,                   *
                                      *
                  Appellant,          *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Southern District of Iowa.
Mount Pleasant Correctional Facility, *
                                      *
                   Appellee.          *
                                 ___________

                              Submitted: June 11, 2003

                                   Filed: July 3, 2003
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.

       Stephen C. Curtiss appeals the district court’s1 dismissal of his Petition for
Habeas Corpus as untimely. He argues that the one year statute of limitations
applicable to federal habeas petitions should be tolled for the period during which the
petitioner could file a petition for post-conviction relief in state court. Recognizing
that we have held to the contrary in Painter v. Iowa, 247 F.3d 1255 (8th Cir. 2001),


      1
       The Honorable Robert W. Pratt, United States District Court for the Southern
District of Iowa.
he suggests Painter was implicitly overruled by the Supreme Court in Carey v.
Saffold, 536 U.S. 214 (2002). In the alternative, he contends that his failure to timely
file his federal petition should be excused because it was the result of Iowa not
keeping him apprised of the status of his state court proceedings. We affirm.

                                  BACKGROUND

       In 1997, Curtiss pled guilty and was convicted in Story County, Iowa, of one
count of third degree sexual abuse and two counts of lascivious acts with a child. He
was sentenced consecutively on each count, and is currently serving a total of twenty
years in prison. He timely filed a direct appeal of his convictions. On January 13,
1999, the Iowa Supreme Court dismissed his appeal as frivolous.

        Eight days later, Curtiss, acting pro se, filed a document in the Iowa Supreme
Court entitled “Legal Malpractice Suit,” naming himself as plaintiff and his former
lawyer as defendant. He argued that because of how his attorney handled his case,
he was denied his Sixth Amendment right to effective assistance of counsel. For
relief, he requested that she be disbarred and that he receive twenty thousand dollars,
plus costs and fees. The Iowa Supreme Court clerk received and docketed this
document but took no action on it.

       Several months passed with no action from either Curtiss or any Iowa court.
Eventually, Curtiss sent a letter dated May 17, 1999, to Story County District Chief
Judge Ronald H. Schechtman. In it, he complained again about his lawyer, and stated
that he had filed a malpractice suit with the Iowa Supreme Court but had not heard
of any action taken on it. Judge Schechtman promptly responded by letter stating that
he interpreted Curtiss’s letter as one addressing post-conviction issues and that he
could not give legal advice.




                                          -2-
       Almost a year later, Curtiss sent a number of documents professing his
innocence to the Story County Clerk of Court. These were filed on May 24, 2000.
On May 31, 2000, Curtiss filed a document entitled “Motion to Vacate Sentence,”
which the Story County clerk treated as a motion for post-conviction relief. The
motion was denied, and his appeal was dismissed by the Iowa Supreme Court as
frivolous on January 24, 2002.

      Curtiss promptly filed his federal petition for habeas corpus, which was
received by the district court on February 28, 2002. The government moved to
dismiss Curtiss’s habeas petition, contending it was untimely and not excused from
the one year statute of limitations by any equitable tolling principle. The district
court granted the government’s motion and dismissed the petition. This appeal
followed.

                                      ANALYSIS

I.    TIMELINESS OF CURTISS’S FEDERAL HABEAS PETITION

        The main issue in this case is simple: Was Curtiss’s petition for habeas corpus
filed before the statute of limitations expired? A petitioner has one year from the time
a state court judgment becomes final to apply for a federal writ of habeas corpus. 28
U.S.C. § 2244(d)(1)(A). A judgment is final, for these purposes, at “the conclusion
of all direct criminal appeals in the state system followed by the expiration of the time
allotted for filing a petition [for a writ of certiorari].” Williams v. Bruton, 299 F.3d
981, 982 (8th Cir. 2002) (quoting Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.
1998)). By Supreme Court rule, a petitioner has ninety days from the date of entry
of judgment in a state court of last resort to petition for a writ of certiorari. Sup. Ct.
R. 13.




                                           -3-
      Curtiss’s direct appeal was dismissed by the Iowa Supreme Court on January
13, 1999. Taking into account the ninety days he had to petition for certiorari,
Curtiss’s statute of limitations for filing a federal habeas claim began to run on April
13, 1999.

       “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
should not be counted toward any period of limitation under this subsection.” 28
U.S.C. § 2244(d)(2). Thus, while Curtiss would typically have to file his federal
petition by April 13, 2000, the statute of limitations period would be tolled if during
that time he filed a petition for post-conviction relief in state court. See Painter v.
Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001).

       Even construing Curtiss’s pro se filings liberally, he did not initiate any action
for post-conviction relief in state court until–at the earliest–May 24, 2000, the day he
sent documents claiming he was innocent to the Story County Clerk of Court.
Because the deadline for filing Curtiss’s federal petition passed on April 13, 2000,
his later filing for post-conviction relief in state court cannot act to toll the federal
statute of limitations. Painter, 247 F.3d at 1256.

       Curtiss notes that his state court petition was timely under Iowa law. See Iowa
Code § 822.3 (permitting petitions for post-conviction relief up to three years
following final judgment on direct review). He suggests that the federal statute of
limitations should be tolled during the period that he could have properly filed a state
court petition for post-conviction relief. Under his theory, the federal filing deadline
would not expire until a year after his time for filing in state court expired. If his
view were accepted, Curtiss’s federal petition would be timely.

      The very same argument Curtiss advances now was considered and rejected in
Painter. There, the petitioner’s federal statute of limitations expired on April 24,

                                          -4-
1997. He did not file a petition for post-conviction relief in Iowa state court until
November of 1997. He argued that because his state court action was timely under
Iowa state law, and exhaustion of state court remedies is a prerequisite for federal
habeas relief, equity required that the federal filing deadline be tolled until his three
years to file a state claim ran out. Our court disagreed:

             A review of our cases makes clear . . . that the time between the
      date that direct review of a conviction is completed and the date that an
      application for state post-conviction relief is filed counts against the
      one-year [federal statute of limitations] period. In this case, the one-year
      period ended on April 24, 1997. Therefore, as the district court held, by
      the time Painter filed his state-court application on November 11, 1997
      there was no federal limitations period remaining to toll, and the petition
      was properly dismissed as time-barred.

Painter, 247 F.3d at 1256 (citations omitted).

      Apparently cognizant of the burden Painter puts on his argument, Curtiss
contends Carey v. Saffold, 536 U.S. 214 (2002), implicitly overruled Painter, and that
our court has so recognized in Williams v. Bruton, 299 F.3d 981 (8th Cir. 2002), and
Wright v. Norris, 299 F.3d 926 (8th Cir. 2002). A thorough review of those cases and
others leads us to a contrary conclusion.

       In Saffold, the petitioner was convicted in state court of murder and several
other charges. His conviction became final on direct review, and, before his federal
statute of limitations expired, he filed a petition in state court for post-conviction
relief. His motion was denied. Due to California’s post-conviction procedures, he
was permitted to file a second “original” petition in the state’s appellate courts, rather
than appeal the lower court’s judgment.2 California had not specified a filing


      2
      As the Court noted, while different in form from most state post-conviction
procedures, California’s system has the same substantive result, as it permits an

                                           -5-
deadline for these appellate petitions, instead determining timeliness of each petition
based on a “reasonableness” standard. Saffold, 536 U.S. at 222. The question
presented by Saffold was whether the federal statute of limitations remained tolled
during the period between a lower state court ruling and the time the petitioner filed
the second “original” petition in the appellate court. The Court held that if California
found the second petition to be filed in a timely fashion and thus meet the state’s
“reasonableness” standard, the federal statute would be tolled during the intervening
period because the state court petition remained “pending.” Id. at 222-23, 225. The
Court concluded that to hold otherwise would contravene the policies of the
Antiterrorism and Effective Death Penalty Act (AEDPA)’s changes in federal habeas
procedures:

      The exhaustion requirement serves AEDPA’s goal of promoting
      “comity, finality, and federalism,” by giving state courts “the first
      opportunity to review [the] claim,” and to “correct” any “constitutional
      violation in the first instance.” And AEDPA’s limitations period–with
      its accompanying tolling provision–ensures the achievement of this goal
      because it “promotes the exhaustion of state remedies while respecting
      the interest in the finality of state court judgments.” California’s
      interpretation violates these principles by encouraging state prisoners to
      file federal habeas petitions before the State completes a full round of
      collateral review. This would lead to great uncertainty in the federal
      courts, requiring them to contend with habeas petitions that are in one
      sense unlawful (because the claims have not been exhausted) but in
      another sense required by law (because they would otherwise be barred
      by the 1-year statute of limitations).

Id. at 220 (alteration and emphasis in original) (citations omitted).




appellate court to consider the merits of a post-conviction petition that was denied by
a lower court. Saffold, 536 U.S. at 224-25.

                                          -6-
         The rationale of Saffold, if applied to Curtiss’s case, points in his favor. If it
would respect AEDPA’s favored principles of comity, finality, and federalism to toll
the federal statute of limitations while a state post-conviction proceeding is “pending”
(i.e., from time of filing through conclusion of state appellate procedures), those same
goals are effectuated by tolling the federal deadline during the time a petitioner could
file a timely application in state court. However, the petitioner’s circumstance in
Saffold differs from Curtiss in one important respect: Saffold filed his state court
petition before the federal statute of limitations expired. Id. at 217. Thus, the Court
was not presented with the issue before us, and did not have occasion to consider the
merits of our decision in Painter. While Curtiss suggests that Williams v. Bruton, 299
F.3d 981 (8th Cir. 2002) and Wright v. Norris, 299 F.3d 926 (8th Cir. 2002) have
recognized that Painter has been overruled, they simply cannot be read as such. Both
petitioners in Williams and Wright had filed state court applications for post-
conviction relief within the one year federal deadline, putting their cases on all fours
with Saffold. Curtiss, like the petitioner in Painter, did not. Neither Williams nor
Wright provides support for his contention that Painter has been abrogated.3 See
Beery v. Ault, 312 F.3d 948, 950 (8th Cir. 2002) (citing Painter as controlling circuit
authority in post-Saffold case). While Saffold may call into question the integrity of
Painter, we remain bound by our earlier panel decision.




      3
        Since Saffold, at least one other circuit has adhered to Painter’s rationale by
refusing to toll the federal deadline during the time a petitioner could file a state court
petition for post-conviction relief. See Burger v. Scott, 317 F.3d 1133, 1138 (10th
Cir. 2003) (“We recognize that, as a federal statute that interacts with state procedural
rules, § 2244(d) will sometimes force a state prisoner to act expeditiously to preserve
his federal claims despite the procedural lenience of state law, which may forgive
substantial delay.”)

                                           -7-
II.   EQUITABLE TOLLING

       Curtiss contends that even if Painter remains good law, his failure to observe
the federal filing deadline should be excused. A court may equitably toll AEDPA’s
statute of limitations in “extraordinary circumstances.” Kreutzer v. Bowersox, 231
F.3d 460, 463 (8th Cir. 2000). These circumstances include where the state’s conduct
has somehow lulled the petitioner into inaction. Id.

       Curtiss suggests that the Iowa Supreme Court’s refusal to act on his “Legal
Malpractice” lawsuit and failure to contact him regarding the suit lulled him into
inaction. The facts do not support Curtiss’s claim. He filed his lawsuit in January of
1999. He requested no response from the court, and he did not timely check the
status of this claim. Rather, four months later, he wrote to a district court judge and
mentioned the pending suit. After receiving the judge’s response, he still did not
check the status of his suit. There is nothing in the record to indicate that the state
made it difficult or impossible for Curtiss to either check the status of his state suit
or simply file a concurrent federal petition in a timely manner. Accord Jihad v.
Hvass, 267 F.3d 803, 806-07 (8th Cir. 2001) (holding no justification for equitable
tolling where no “extraordinary circumstances beyond Jihad’s control, and the State
did nothing to prevent him from taking more timely action”). While we are troubled
by the Iowa Supreme Court’s failure to take any action whatsoever on Curtiss’s pro
se filings, the circumstances here are not so remarkable as to excuse his untimely
filing based on principles of equitable tolling.

                                   CONCLUSION

       Curtiss contends that the time limitation on filing his federal habeas claim
should be tolled during the time he could have filed a state court petition for post-
conviction relief. Painter v. Iowa, 247 F.3d 1255 (8th Cir. 2001), addressed the same
issue and decided it adverse to Curtiss. We are bound by that determination. Because

                                          -8-
Curtiss’s circumstances are not so extraordinary as to warrant equitable tolling, we
affirm the district court’s dismissal of his habeas petition as untimely.

      A true copy.

            Attest:

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




                                        -9-
