                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-3430
                                     ___________

Larry Streu,                              *
                                          *
               Appellant,                 *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Missouri.
Dave Dormire,                             *
                                          *
               Appellee.                  *
                                     ___________

                              Submitted: October 14, 2008
                                 Filed: February 26, 2009
                                  ___________

Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

      Larry Streu appeals the district court’s dismissal of his petition for writ of
habeas corpus as untimely. Reviewing the dismissal de novo, see Boston v. Weber,
525 F.3d 622, 624 (8th Cir. 2008), we reverse and remand for further proceedings.

       Under the federal Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a state prisoner has one year from the date on which his judgment of
conviction becomes final to seek federal habeas corpus relief. 28 U.S.C.
§ 2244(d)(1)(A). This one-year statute of limitations is tolled, however, during the
time in which “a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment . . . is pending.” Id. § 2244(d)(2). The
main questions presented in this appeal are whether a motion to reopen state post-
conviction proceedings in Missouri is an “application for State post-conviction or
other collateral review” within the meaning of the tolling provision, and if so, whether
the application is “pending” after the time for appealing a denial of the motion to
reopen has expired, but before the prisoner files a motion for leave to file an untimely
appeal that is later granted.

                                           I.

      In 2000, Streu was convicted in Missouri circuit court of first-degree murder
and sentenced to life in prison without parole. The Missouri Court of Appeals
affirmed the judgment on September 25, 2001, and denied Streu’s motion for
rehearing on October 30, 2001. Streu v. State, 59 S.W.3d 39, 39 (Mo. Ct. App. 2001).
Because Streu did not seek transfer of his case to the Supreme Court of Missouri, the
judgment became final, and AEDPA’s one-year statute of limitations began to run,
when the court of appeals issued its mandate on November 21, 2001. See 28 U.S.C.
§ 2244(d)(1)(A); Riddle v. Kemna, 523 F.3d 850, 856 (8th Cir. 2008) (en banc).

       On February 4, 2002, Streu filed a timely motion for post-conviction relief
under Missouri Supreme Court Rule 29.15, alleging ineffective assistance of trial
counsel. By that date, AEDPA’s statute of limitations had run for 75 days. See
Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001) (“[T]he 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 period.”). The circuit
court denied Streu’s Rule 29.15 motion, and the court of appeals issued its mandate
affirming the denial on May 26, 2005. See Streu v. State, 161 S.W.3d 382 (Mo. Ct.
App. 2005). The parties do not dispute that Streu’s Rule 29.15 motion was “a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment,” or that the one-year period was tolled during the

                                          -2-
time the motion was pending in Missouri court. Thus, on May 26, 2005, when the
court of appeals issued its mandate, the statute of limitations still had run for 75 days.

      The statute of limitations ran for an additional 109 days, bringing the total to
184, by the time Streu filed a motion to reopen state post-conviction proceedings on
September 12, 2005. The motion to reopen, which alleged abandonment by post-
conviction counsel, was denied by the circuit court on September 27, 2005. Streu
claims that he was not notified of the court’s order of denial, and was therefore not
aware of the deadline for filing a notice of appeal. The time for filing a notice of
appeal expired on November 7, 2005. See Mo. Sup. Ct. R. 44.01(a), 81.04(a),
81.05(a).

       Eventually realizing what had happened, Streu filed a motion for leave to file
a notice of appeal out of time on March 3, 2006 – 116 days after the original deadline
had passed. On March 14, 2006, Streu’s motion for leave was granted, and on March
31, 2006, he properly filed a notice of appeal. The Missouri Court of Appeals
subsequently affirmed the denial of Streu’s motion to reopen post-conviction
proceedings, issuing its mandate on January 24, 2007. See Streu v. State, 209 S.W.3d
556 (Mo. Ct. App. 2007). On April 17, 2007 – 83 days later – Streu filed an
application for federal habeas relief by placing it in a prison mailbox. See Nichols v.
Bowersox, 172 F.3d 1068, 1077 (8th Cir. 1999) (en banc) (“[A] pro se prisoner’s
petition for a writ of habeas corpus is filed on the date it is delivered to prison
authorities for mailing to the clerk of the court.”), overruled on other grounds by
Riddle, 523 F.3d 850.

       The district court dismissed Streu’s habeas petition as barred by AEDPA’s one-
year statute of limitations. Had the district court counted only the 184 untolled days
before Streu filed his motion to reopen and the 83 untolled days after the denial of that
motion became final, Streu’s petition would have been timely. The district court,
however, also counted the 499 days between Streu’s filing of the motion to reopen on

                                           -3-
September 12, 2005, and the court of appeals’ issuance of its mandate affirming the
denial of that motion on January 24, 2007. We granted Streu a certificate of
appealability on the question “whether the statute of limitations was tolled during the
pendency of Streu’s motion to reopen his post-conviction proceedings.” Because
there is no dispute that Streu’s motion to reopen was “properly filed,” the answer turns
on whether the motion was an “application for State post-conviction or other collateral
review with respect to the pertinent judgment.” 28 U.S.C. § 2244(d)(2).

                                           II.

                                            A.

       The State maintains that Streu’s motion to reopen was not an “application for
State post-conviction or other collateral review” with respect to Streu’s conviction.
According to the State, an application is one “for State post-conviction or other
collateral review” only if it requests relief from the underlying conviction or sentence.
Streu’s motion to reopen, the State points out, requested only new proceedings in light
of Streu’s alleged abandonment by counsel during the initial round of post-conviction
review. Even a successful motion to reopen, the State notes, would not have set aside
Streu’s conviction.

       Adoption of the State’s position would serve one of the purposes behind
AEDPA’s statute of limitations: “reduc[ing] the potential for delay on the road to
finality.” Duncan v. Walker, 533 U.S. 167, 179 (2001); see also Pace v. Diguglielmo,
544 U.S. 408, 413 (2005) (expressing concern about “turn[ing] § 2244(d)(2) into a de
facto extension mechanism, quite contrary to the purpose of AEDPA, and open[ing]
the door to abusive delay”). If the one-year period continues to run while motions to
reopen are pending, then state prisoners would lack an incentive to file such motions
“as a delay tactic,” just “so they receive additional time to file their habeas petitions.”
Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007). Consistent with reducing the

                                           -4-
potential for delay, some circuits take the view that the statute is not tolled by motions
requesting the reopening of state post-conviction proceedings. One circuit has stated
that motions for rehearing or reconsideration following the conclusion of state post-
conviction review have “no bearing on AEDPA’s one-year statute of limitations,”
Jones v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006) (internal quotation omitted), while
another has expressed doubt that motions for reargument qualify as “application[s] for
State post-conviction or other collateral review.” Bethea v. Girdich, 293 F.3d 577,
579 (2d Cir. 2002).

       Streu, on the other hand, argues that his motion to reopen was an “application
for State post-conviction or other collateral review,” because its filing was part of a
broader effort to have his conviction set aside. Prevailing on the motion to reopen was
not an end in itself, Streu contends, but rather a means to attacking his conviction. He
argues, moreover, that in claiming abandonment by post-conviction counsel, he
presented grounds for relief from his conviction. His motion to reopen alleged, for
example, that his post-conviction counsel should have challenged his conviction by
raising certain claims of ineffective assistance of trial counsel.

       Streu’s view that his motion to reopen tolled the statute of limitations finds
support in considerations of comity. AEDPA’s tolling provision was meant to
“encourage petitioners to seek relief from state courts in the first instance,” Rhines v.
Weber, 544 U.S. 269, 276 (2005), thereby giving “an opportunity to the state courts
to correct a constitutional violation.” Id. at 274 (internal quotations omitted). If
Missouri courts have decided to entertain motions to reopen post-conviction
proceedings despite the effect on the finality of their own judgments, see Taylor v.
State, 254 S.W.3d 856, 858 (Mo. 2008); State ex rel. Nixon v. Jaynes, 63 S.W.3d 210,
217-18 (Mo. 2001), then federal courts arguably should respect that decision by
tolling the statute of limitations while such motions are pending. After all, “it is the
State’s interests that the tolling provision seeks to protect.” Carey v. Saffold, 536 U.S.
214, 223 (2002). Consistent with this view, one circuit has held that a motion for

                                           -5-
rehearing following the conclusion of post-conviction proceedings is an “application
for State post-conviction or other collateral review,” Nix v. Sec’y for the Dep’t of
Corr., 393 F.3d 1235, 1237 (11th Cir. 2004) (per curiam), and others have assumed
that a similar motion is an “application.” See, e.g., Kindler v. Horn, 542 F.3d 70, 76-
78 (3d Cir. 2008) (motion for reargument); Lookingbill v. Cockrell, 293 F.3d 256, 261
(5th Cir. 2002) (motion for reconsideration).

       Although neither of these competing views is implausible, we do not start with
a blank slate. Our court’s decision in Bishop v. Dormire, 526 F.3d 382 (8th Cir.
2008), dictates that Streu’s motion to reopen state post-conviction proceedings was
an “application for State post-conviction or other collateral review.” In Bishop, a
panel of this court addressed whether AEDPA’s statute of limitations was tolled by
a motion to recall a mandate of the Missouri Court of Appeals affirming the denial of
post-conviction relief. The panel noted that “[t]he plain language of § 2244(d)(2) . . .
requires that an application for state post-conviction or other collateral review be
‘properly filed’ and be ‘with respect to the pertinent judgment or claim’ in order for
the time during which it is pending to be tolled.” Id. at 384. Because the State
conceded that Bishop’s motion to recall the mandate was “properly filed,” the court
limited its discussion to whether the motion satisfied the “with respect to”
requirement. Id. Concluding that it did, the court explained that “Bishop’s motion
was filed ‘with respect to’ his state habeas petition inasmuch as he sought to have the
appeal reopened based on his post-conviction appellate counsel’s failure to raise
certain issues on appeal, all of which attacked the validity of his state conviction.”1

      1
       AEDPA’s tolling provision requires that an application be “with respect to the
pertinent judgment or claim,” 28 U.S.C. § 2244(d)(2) (emphasis added), not “‘with
respect to’ [a] state habeas petition,” as the panel in Bishop put it. Bishop, 526 F.3d
at 384. But given the court’s explanation that Bishop’s motion rested on “his post-
conviction appellate counsel’s failure to raise certain issues on appeal, all of which
attacked the validity of his state conviction,” id. (emphasis added), we infer that the
panel must have meant that Bishop’s motion related to the judgment of conviction, as
required by § 2244(d)(2).

                                          -6-
Id. The court held, therefore, that AEDPA’s one-year limitations period was tolled
during the time in which Bishop’s motion to recall the mandate was pending. Id.

       The holding in Bishop was based on the conclusions that Bishop’s motion was
both “properly filed” and “with respect to the pertinent judgment.” The court did not
address expressly whether the motion was an “application for State post-conviction
or other collateral review.” In holding that the motion tolled the statute of limitations,
the Bishop panel implied that the motion was such an “application,” but we are
generally not bound by a prior panel’s implicit resolution of an issue that was neither
raised by the parties nor discussed by the panel. United States v. Quiroga, No. 07-
3093, 2009 WL 291049, at *3 n.2 (8th Cir. Feb. 9, 2009); Passmore v. Astrue, 533
F.3d 658, 660 (8th Cir. 2008); see also United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 38 (1952) (stating that a prior decision’s implicit resolution of an issue
that was neither “raised in briefs or argument nor discussed in the opinion of the
Court” is not binding precedent). In Bishop, however, the issue of whether the motion
to recall was an “application for State post-conviction or other collateral review” was
the central focus of the State’s brief on appeal. The State argued that the motion was
not “for State post-conviction or other collateral review,” because the motion was not
necessary to exhaust state remedies. Appellee’s Br. at 13, Bishop, 526 F.3d 382 (No.
07-2341). This argument was rejected by the Bishop panel in its discussion of
whether the motion was “with respect to the pertinent judgment.” Bishop, 526 F.3d
at 384. It appears, then, that the Bishop panel treated what might have been two
distinct questions – whether the motion was an “application for State post-conviction
or other collateral review” and whether it was “with respect to the pertinent judgment”
– as a single inquiry. Because the State argued directly that the motion to recall was
not an “application for State post-conviction or other collateral review,” and the panel
considered and rejected this argument in its decision, we conclude that Bishop
resolved the issue.




                                           -7-
       In light of Bishop, we hold that Streu’s motion to reopen post-conviction
proceedings was an “application for State post-conviction or other collateral review.”
For purposes of AEDPA’s tolling provision, Streu’s motion to reopen post-conviction
proceedings and Bishop’s motion to recall a mandate affirming the denial of post-
conviction relief are indistinguishable. Both motions alleged that post-conviction
counsel failed to raise certain claims attacking the prisoner’s judgment of conviction.
Neither motion would have set aside the judgment of conviction. But the granting of
Streu’s motion would have led to new post-conviction proceedings in the circuit court,
just as the granting of Bishop’s motion would have led to new post-conviction
proceedings in the court of appeals, and both were designed to further the ultimate
goal of gaining collateral relief from the judgment of conviction. Given their
analogous content and purpose, if Bishop’s motion to recall is an “application for
State post-conviction or other collateral review,” then Streu’s motion to reopen must
be an “application” as well.

       We further hold, in light of Bishop, that Streu’s motion to reopen was “with
respect to the pertinent judgment.” As in Bishop, the “pertinent judgment” here is the
prisoner’s state conviction. And like the motion in Bishop, the motion here sought to
reopen state post-conviction proceedings based on post-conviction counsel’s “failure
to raise certain issues . . . , all of which attacked the validity of [the] state conviction.”
Bishop, 526 F.3d at 384. Accordingly, Streu’s motion satisfied the “with respect to”
requirement of AEDPA’s tolling provision.

      Based on the foregoing, we conclude that Streu’s motion to reopen state post-
conviction proceedings was “a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment.” As such, it tolled
AEDPA’s statute of limitations during the time it was “pending.”




                                             -8-
                                          B.

        Our next task is to determine precisely when the motion to reopen was pending.
In Carey v. Saffold, the Supreme Court addressed the meaning of “pending” as used
in AEDPA. The Court noted that “[t]he dictionary defines ‘pending’ (when used as
an adjective) as ‘in continuance’ or ‘not yet decided.’ It similarly defines the term
(when used as a preposition) as ‘through the period of continuance . . . of,’ ‘until the
. . . completion of.’” Saffold, 536 U.S. at 219 (citation omitted) (quoting Webster’s
Third New International Dictionary 1669 (1993)). Applying those definitions, the
Court concluded that “until the application has achieved final resolution through the
State’s post-conviction procedures, by definition it remains ‘pending.’” Id. at 220.
The Court thus held that an application is “pending” during the time between a lower
court’s adverse decision and the timely filing of a notice of appeal. Id. at 217, 225.

       In Williams v. Bruton, 299 F.3d 981 (8th Cir. 2002), applying Saffold, we held
that an application for state post-conviction or other collateral review remains
“pending” during the time in which a prisoner may appeal a denial of the application,
even if the prisoner does not appeal. Id. at 983. We explained that an application
does not achieve “final resolution” until the time for appeal expires, because until
then, the possibility remains that the application will be considered by the appellate
court. Id. Based on Williams, we conclude that Streu’s motion to reopen was
“pending” between September 12, 2005, the date on which he filed the motion in the
circuit court, and November 7, 2005, the date on which the time for filing a notice of
appeal from the circuit court’s denial of the motion expired. Although the circuit
court denied Streu’s motion on September 27, 2005, the motion remained “pending”
until the time for appeal expired.

      By similar logic, we conclude that Streu’s motion to reopen was “pending”
between March 14, 2006, the date on which his motion for leave to file an untimely
appeal was granted, and January 24, 2007, the date on which the court of appeals

                                          -9-
issued its mandate affirming the denial of Streu’s motion to reopen. Although Streu
did not file a notice of appeal until March 31, 2006, the motion to reopen became
“pending” again on March 14, 2006, when the time for appeal was renewed. At that
point, there was again the possibility, discussed in Williams, 299 F.3d at 983, that the
motion to reopen would be considered by the appellate court. Moreover, we held in
Peterson v. Gammon, 200 F.3d 1202 (8th Cir. 2000), that the time during which an
application is “pending” includes “the entire period during which a notice of appeal
. . . would be timely” before the actual filing of such a notice. Id. at 1205. Here, a
notice of appeal would have been timely beginning on March 14, 2006. From that
date, therefore, Streu’s motion to reopen was “pending,” and it remained so until
January 24, 2007, when the denial of Streu’s motion became final by issuance of the
mandate. See Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006).

        Between November 7, 2005, and March 3, 2006, however, Streu’s motion to
reopen was not “pending.” On November 7, 2005, the deadline for filing a notice of
appeal passed without any action by Streu. At that point, there was nothing “in
continuance” or “not yet decided.” Saffold, 536 U.S. at 219 (internal quotations
omitted). The post-conviction proceedings had reached a resolution, and Streu had
yet to file his motion for leave to file an untimely appeal. Although Streu later sought
leave to pursue an appeal out of time on March 3, 2006, nothing was “pending” before
a Missouri court between November 7, 2005, and March 3, 2006. We thus agree with
the conclusion of several other courts that an application is not “pending” between the
expiration of the time for appeal and the filing of a petition for belated appeal. See
McMillan v. Sec’y for the Dep’t of Corr., 257 F. App’x 249, 252 (11th Cir. 2007) (per
curiam); Allen v. Mitchell, 276 F.3d 183, 186 (4th Cir. 2001); Melancon v. Kaylo, 259
F.3d 401, 407 (5th Cir. 2001); Gibson v. Klinger, 232 F.3d 799, 807 (10th Cir. 2000);
Fernandez v. Sternes, 227 F.3d 977, 979 (7th Cir. 2000).2

      2
        In Jimenez v. Quarterman, 129 S. Ct. 681 (2009), the Supreme Court held that
where a defendant fails to file a timely appeal of his state conviction but later obtains
the right to file an out-of-time appeal, his conviction becomes “final” for purposes of

                                          -10-
        Because we conclude that an application is not “pending” after the time for
appeal has expired, but before a motion for leave to proceed out of time has been filed,
AEDPA’s limitations period was not tolled in Streu’s case during the 116 days
between November 7, 2005, and March 3, 2006. Adding those 116 days to the 184
untolled days before Streu filed his motion to reopen and the 83 untolled days after
the denial of that motion became final yields 383 untolled days before Streu filed his
petition for federal habeas relief. Streu’s federal habeas petition was therefore
untimely under AEDPA’s one-year statute of limitations, regardless of whether the
statute was tolled during the 11-day period between the filing of the motion for leave
to file an untimely appeal on March 3, 2006, and the granting of that motion on March
14, 2006 – an issue we need not resolve.

                                           C.

     The remaining question is whether Streu is entitled to equitable tolling.
“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some


28 U.S.C. § 2244(d)(1)(A) at the conclusion of his out-of-time appeal or the expiration
of time for seeking review of that appeal. Id. at 685-86. Streu asserts in a post-
argument submission that Jimenez “strongly suggests” that once a motion for leave
to file an untimely appeal is granted, an “application for State post-conviction or other
collateral review” should be deemed “pending” from the time the motion for leave
was filed until the belated appeal is resolved. We do not think Jimenez signals this
conclusion. When a conviction becomes “final” for purposes of § 2244(d)(1)(A) is
distinct from when an application for post-conviction review is “pending” for
purposes of § 2244(d)(2). Jimenez itself suggests that lack of finality does not
necessarily imply pendency. In discussing the state court’s reopening of direct
review, the Court noted that the order granting leave to file an out-of-time appeal
“restored the pendency of the direct appeal.” Id. at 686 (emphasis added) (internal
quotation and brackets omitted). The implication is that the appeal was not “pending”
during the period after the time for appeal had expired, but before leave to file an
appeal out of time was granted.

                                          -11-
extraordinary circumstance stood in his way.” Riddle v. Kemna, 523 F.3d 850, 857
(8th Cir. 2008) (en banc) (internal quotation omitted).

       At the time Streu filed his federal habeas petition, the law of this circuit
provided that AEDPA’s statute of limitations did not begin to run in a Missouri case
until 90 days after a defendant’s conviction was affirmed on direct appeal by the
Missouri Court of Appeals, even if the defendant did not seek discretionary review by
the Supreme Court of Missouri. See Nichols v. Bowersox, 172 F.3d 1068, 1072 (8th
Cir. 1999) (en banc). The rule was based on the view that a defendant was entitled to
90 days to petition the Supreme Court of the United States for a writ of certiorari, and
that time for seeking direct review did not expire until that period elapsed. Id.; see 28
U.S.C. § 2244(d)(1)(A). In Riddle, however, we overruled Nichols, concluding that
the Supreme Court would not have jurisdiction to grant a petition for writ of certiorari
to the state court of appeals, and that the time for seeking direct review does not
include a 90-day period for seeking certiorari from the court of appeals. 523 F.3d at
853-55. Rather, in the case of a Missouri defendant who does not seek transfer to the
Supreme Court of Missouri, the conclusion of direct review occurs when time expires
for the defendant to file for state discretionary review, or when the state court of
appeals issues its mandate, whichever is later. Id. at 856.

       Streu did not seek discretionary review by the Supreme Court of Missouri on
direct appeal, and his petition for writ of habeas corpus was untimely under the rule
of Riddle. Under Nichols, however, his petition would have been timely, because the
statute of limitations would have begun running 90 days after the court of appeals
denied rehearing, on January 28, 2002, rather than on November 21, 2001, when the
court of appeals issued its mandate. The extra 68 days would have made Streu’s
federal habeas petition timely, even assuming the one-year period was not tolled
between March 3, 2006, and March 14, 2006. Because Riddle’s overruling of en banc
precedent qualifies as an “extraordinary circumstance, external to [Streu] and not
attributable to him,” 523 F.3d at 857, Streu satisfies the second element of equitable

                                          -12-
tolling. Streu must still satisfy the first element, however, by establishing “diligence
in pursuing his habeas petition.” Id. Because this element depends on the facts of the
case, we remand to the district court to determine whether Streu “has been pursuing
his rights diligently but was lulled into inaction,” id. at 858, such that AEDPA’s
statute of limitations should be equitably tolled, and Streu’s habeas petition should be
considered timely.

                                   *       *       *

       The judgment of the district court is reversed, and the case is remanded for
further proceedings consistent with this opinion.
                      ______________________________




                                         -13-
