           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    Walker v. Smith                             No. 03-1611
        ELECTRONIC CITATION: 2004 FED App. 0049P (6th Cir.)
                    File Name: 04a0049p.06                              Lansing, Michigan, for Appellee.       Everett Walker, New
                                                                        Haven, Michigan, pro se.
UNITED STATES COURT OF APPEALS                                                              _________________
                  FOR THE SIXTH CIRCUIT                                                         OPINION
                    _________________                                                       _________________

 EVERETT WALKER,                  X                                       BOYCE F. MARTIN, JR., Circuit Judge. Everett Walker,
                                                                        a Michigan state prisoner proceeding without the benefit of
         Petitioner-Appellant, -                                        counsel, appeals the district court’s dismissal of his habeas
                                   -
                                   -  No. 03-1611                       petition as untimely filed under 28 U.S.C. § 2244(d). This
           v.                      -                                    case was referred to a panel of this Court pursuant to Rule
                                    >                                   34(j)(1) of the Rules of the Sixth Circuit. Upon examination,
                                   ,                                    this panel unanimously agrees that oral argument is not
 DAVID SMITH, Warden,              -
        Respondent-Appellee. -                                          needed. FED . R. APP . P. 34(a).
                                  N                                        In May 1991, a jury found Walker guilty of assault with
      Appeal from the United States District Court                      intent to commit murder. Accordingly, Walker was sentenced
     for the Eastern District of Michigan at Detroit.                   to a twenty to forty year term of imprisonment, which was to
   No. 02-73007—Robert H. Cleland, District Judge.                      run consecutively to a sentence that he was serving at the time
                                                                        of the instant offense. The Michigan Court of Appeals
                  Submitted: January 29, 2004                           affirmed Walker’s conviction on October 21, 1994, and the
                                                                        Michigan Supreme Court denied Walker’s application for
             Decided and Filed: February 13, 2004                       leave to appeal on May 30, 1995.

Before: MARTIN and MOORE, Circuit Judges; WEBER,                          On May 18, 2000, Walker filed a motion for post-
                 District Judge.*                                       conviction relief from judgment alleging, among other things,
                                                                        that his sentence was invalid because it was based upon
                      _________________                                 inaccurate findings in a court-ordered psychiatric report that
                                                                        he was unable to refute because the sentencing court failed to
                           COUNSEL                                      disclose its content prior to sentencing. The motion was
                                                                        denied on August 23, 2000, and the Michigan Court of
ON BRIEF: Debra M. Gagliardi, OFFICE OF THE                             Appeals denied leave to appeal pursuant to Michigan Court
ATTORNEY GENERAL, HABEAS CORPUS DIVISION,                               Rule 6.508(D). On May 31, 2002, the Michigan Supreme
                                                                        Court likewise denied Walker’s application for leave to
                                                                        appeal.
    *
     The Hono rable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                 1
No. 03-1611                              Walker v. Smith       3    4     Walker v. Smith                              No. 03-1611

   On June 5, 2002, Walker petitioned for habeas corpus relief      § 2244(d)(1). Prisoners whose state appeals concluded by
to the United States District Court for the Eastern District of     direct review prior to the effective date of the Act are afforded
Michigan. Walker’s petition alleged: (1) that his sentence          a one-year grace period–until April 24, 1997–in which to file
was invalid because it was based upon erroneous information         for federal habeas relief. Id. However, “[t]he time during
contained in the court-ordered psychiatric report; (2) he was       which a properly filed application for State post-conviction or
entitled to resentencing because the trial court failed to          other collateral review with respect to the pertinent judgment
disclose the psychiatric report; (3) that by not disclosing the     or claim is pending shall not be counted toward any period of
psychiatric report, the trial court violated his right to           limitations under this subsection.” 28 U.S.C. § 2244(d)(2).
allocution; (4) that he should be resentenced by a different
judge; and (5) that his motion for relief satisfied the “good         Properly construed, Walker challenges the district court’s
cause and actual prejudice” requirements of Michigan Court          conclusion that he failed to “properly file” a motion for post-
Rule 6.508(D).                                                      conviction relief for purposes of tolling under section
                                                                    2244(d)(2). Walker alleged that he filed a motion for post-
  On April 18, 2003, the district court held, pursuant to           conviction relief to correct his sentence twice in 1995 and
28 U.S.C. § 2244(d), that Walker’s habeas corpus petition           once in 1996, but his motion never appeared on the court’s
was untimely filed. Thereafter, Walker filed a motion for           docket sheets. However, Walker’s exhibits demonstrate that
reconsideration and a request for a certificate of appealability.   one of his 1995 motions was stamped as received by the state
On June 11, 2003, the district court denied the motion for          court on August 2, 1995. Warden Smith argued, and
reconsideration, but issued a certificate of appealability on the   apparently the district court agreed, that because this motion
following issue: “Whether [Walker’s] habeas petition was            never appeared on the state court’s docket sheets, Walker
barred from substantive review pursuant to the statute of           could not prove that it was filed, much less “properly filed”
limitations, 28 U.S.C. 2244(d).”                                    for section 2244(d)(2) purposes. We find this argument
                                                                    unsupported by the record.
   On appeal, Walker argues that the district court erred in
finding his habeas corpus petition untimely, because he was            “An application is ‘filed,’ as that term is commonly
entitled to tolling under 28 U.S.C. § 2244(d). We review de         understood, when it is delivered to, and accepted by, the
novo a district court’s determination that a habeas corpus          appropriate court officer for placement into the official
petition was untimely filed. Cook v. Stegall, 295 F.3d 517,         record. And an application is ‘properly filed’ when its
519 (6th Cir. 2002). Because Walker’s habeas corpus petition        delivery and acceptance are in compliance with the applicable
was filed after the effective date of the Antiterrorism and         laws and rules governing filings.” Artuz v. Bennett, 531 U.S.
Effective Death Penalty Act of 1996, our review is governed         4, 8 (2000). Although the state court’s docket sheet does not
by the Act. Mason v. Mitchell, 320 F.3d 604, 613 (6th Cir.          reflect that Walker filed a motion for post-conviction relief in
2003). Upon review, we find that the district court erred in        1995, we do not find this fact determinative in this case.
finding Walker’s habeas corpus petition untimely.
                                                                      Although the motion does not appear on the state court
  Under the Antiterrorism and Effective Death Penalty Act,          docket sheet, the record demonstrates that Walker did
a state prisoner has one year from the conclusion of the            properly file a motion for post-conviction relief in 1995,
prisoner’s state proceedings in which to file a petition for        because the state court decided the merits of that motion on
habeas corpus relief. Cook, 295 F.3d at 519; 28 U.S.C.              March 28, 2003. The district court found that the state court’s
No. 03-1611                                      Walker v. Smith           5    6     Walker v. Smith                                     No. 03-1611

March 28, 2003, order must have addressed the merits of                           Notably, no party has addressed the fact that Walker’s
“some motion other that [Walker’s] motions to correct [his]                     motion to correct his sentence raised only state law based
sentence,” because it was titled a “motion for relief for                       grounds for relief. Given the parties’ silence, we do not
judgment.” We conclude otherwise.                                               address the implication of this fact on the tolling provisions
                                                                                of the Antiterrorism and Effective Death Penalty Act, see
  The record illustrates that on February 4, 2003, the state                    Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999); but see
court ordered the prosecution to respond to Walker’s “motion                    Cowherd v. Million, 80 Fed. Appx. 415 (6th Cir. 2003),
for relief from judgment.” The state docket sheet, however,                     vacated and reh’g en banc granted January 12, 2004, nor do
does not demonstrate that there was an outstanding motion                       we address whether Warden Smith in failing to raise this
before the court. On March 18, 2003, the state prosecution                      argument before the district court and our Court has now
responded to the court’s order and filed an “Answer in                          waived the right to argue this issue.
Opposition to Defendant’s Motion for Relief From
Judgment.” Although the state prosecution titled its response                     Thus, for the foregoing reasons, we REVERSE the district
as a response to Walker’s motion for relief from judgment it                    court’s decision that Walker never properly filed a motion for
becomes clear upon comparison that the state prosecution was                    post-conviction relief, and REMAND the case to the district
responding to Walker’s motion to correct his sentence.                          court for consideration of the record as a whole.
Indeed, the arguments that Walker made in his motion to
correct his sentence paralleled the arguments that the state
prosecution asserted to defeat Walker’s “motion for relief
from judgment.” Thus, we find that although the state court
changed the title of Walker’s motion to a motion for relief
from judgment, its March 28, 2003, order actually decided
Walker’s motion to correct his sentence. Our determination
that the state court decided Walker’s motion to correct his
sentence compels the conclusion that Walker “properly filed”
a motion for post-conviction relief under 28 U.S.C. § 2244(d).
Indeed, it would be dubious to suggest that Walker never
properly filed a motion for post-conviction relief when the
state court actually decided, albeit belatedly, the merits of that
motion.1


    1
      Although not argued by Smith, we do not find the fact that Walker
filed a “M otio n to W ithdraw The M otion To Correct Sentenc e,”
determinative of our decision for two reasons. J.A. 403. First, we see no
evidence in the record to suggest that the state court ruled on this motion.
Second , though not artfully pleaded, we interpret this motion not as an
attempt to actually have the state court withdraw said motion, but rather       notify the court of its own mistake in titling the motion. We believe that
we find that the intent of this motion was either to change the title of the    our interpretation is in perfect accord with the intention of W alker, a
original motio n to confo rm with the state court’s modifica tion of it or to   prisoner proceeding without the benefit of co unsel.
